Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices 75959

Dated: November 21, 2000.

Julio F. Mercado,

Deputy Administrator.

[FR Doc. 00–30929 Filed 12–4–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Manufacturer of Controlled

Substances; Notice of Application

Pursuant to § 1301.33(a) of title 21 of

the Code of Federal Regulations (CFR),

this is notice that on September 15,

2000, Knoll Pharmaceutical Company,

30 North Jefferson Road, Whippany,

New Jersey 07981, made application by

renewal to the Drug Enforcement

Administration (DEA) for registration as

a bulk manufacturer of the basic classes

of controlled substances listed below:

Drug Schedule

Dihydromorphine (9145) ............... I

Hydromorphone (9150) ................ II

The firm plans to produce bulk

product and finished dosage units for

distribution to its customers.

Any other such applicant and any

person who is presently registered with

DEA to manufacture such substances

may file comments or objections to the

issuance of the proposed registration.

Any such comments or objections

may be addressed, in quintuplicate, to

the Deputy Assistant Administrator,

Office of Diversion Control, Drug

Enforcement Administration, United

States Department of Justice,

Washington, DC 20537, Attention: DEA

Federal Register Representative (CCR),

and must be filed no later than February

5, 2001.

Dated: November 20, 2000.

John H. King,

Deputy Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration.

[FR Doc. 00–30940 Filed 12–4–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 99–10]

Nicholas A. Sychak, d/b/a Medicap

Pharmacy; Revocation of Registration

The Deputy Administrator, Drug

Enforcement Administration (DEA),

issued an Order to Show Cause dated

December 14, 1998, to Nicholas A.

Sychak d/b/a Medicap Pharmacy

(Respondent), seeking to revoke the

Replacement’s DEA Certificate of

Registration, BM2751736, pursuant to

21 U.S.C. 824(a)(4); and to deny any

pending application for renewal of such

registration pursuant to 21 U.S.C. 823(f)

because the registration would be

inconsistent with the public interest as

defined by 21 U.S.C. 823(f). Specifically,

the Order to Show Cause alleged that:

(1) On June 20, 1996, DEA obtained

information that Nicholas A. Sychak,

R.Ph., the owner and operator of

Medicap Pharmacy, ordered large

quantities of various Schedule II

through IV controlled substances and

diverted these drugs to other

individuals for no legitimate medical

purpose; (2) Also on June 20, 1996, a

cooperating individual provided DEA

investigators with information that Mr.

Sychak was a known source of supply

for illegally diverted controlled

substances, and that drug dealers and

drug dependent individuals traveled to

Medicap Pharmacy to purchase large

quantities of controlled substances for

sums ranging from several hundred to

several thousand dollars per transaction;

(3) On August 8, 1997, a confidential

source, posing as a physician,

telephoned Mr. Sychak and placed a

fictitious prescription for sixty dosage

units of hydrocodone, a Schedule II

controlled substance, with no refills.

Mr. Sychak was aware the individual

calling in the prescription was not a

physician, but nevertheless filled the

prescription in exchange for cash. Mr.

Sychak also authorized two refills for

the prescription, even though

prescriptions for Schedule II controlled

substances may not be refilled; (4) Also

on August 8, 1997, the confidential

source placed another telephone call to

Mr. Sychak, posing as another

physician. When the confidential source

later arrived at Medicap Pharmacy, Mr.

Sychak directed that individual to

exhaust the refills under the first

physician’s name before using a second

physician’s name to obtain additional

prescriptions; (5) On August 22, 1997, a

confidential source, acting in an

undercover capacity, obtained the

remaining unauthorized refill of the

August 8, 1997, fraudulent hydrocodone

prescription from Mr. Sychak, again in

exchange for cash; (6) On September 5,

1997, a confidential source again posed

as a physician and telephoned Mr.

Sychak for a fictitious prescription for

sixty dosage units of hydrocodone. The

confidential source was also provided

with a blank prescription bearing

fictitious physician information. While

on Medicap Pharmacy’s premises, and

within the presence of Mr. Sychak, the

confidential source wrote out a

prescription for sixty tablets of Percocet,

a Schedule II controlled substance. Mr.

Sychak admonished the confidential

source for filling out the prescription in

the pharmacy, but filled the prescription

and also provided the confidential

source with sixty hydrocodone tablets;

(7) The DEA investigation revealed that

from June 1995 through October 1997,

Mr. Sychak and Medicap Pharmacy

illegally dispensed more than 5,700

dosage units of Percocet to one

individual. This individual presented

forged prescriptions attributed to a

physician and used the aliases ‘‘Walter

Kaczynski’’ and ‘‘Linda Kaczynski.’’

DEA subsequently verified that the

purported prescribing physician never

issued the prescriptions; (8) The DEA

investigation further revealed that Mr.

Sychak and Medicap Pharmacy

unlawfully dispensed a total of 5,255

dosage units of controlled substances to

another individual between July 17,

1997, and December 30, 1997, pursuant

to prescriptions purportedly issued by

two different physicians. DEA

subsequently verified that neither of

these two physicians authorized the

dispensing of these controlled

substances; (9) The DEA investigation

further revealed that between July 1997

and March 1998, Mr. Sychak and

Medicap Pharmacy unlawfully

dispensed a total of 7,225 dosage units

of various controlled substances, plus

48 ounces of Hydromet syrup, to two

individuals who utilized eight aliases

on prescriptions attributed to one

physician; (10) On April 24, 1998, a

confidential source acting in an

undercover capacity purchased two

prescription vials containing seventyfive dosage units of hydrocodone each

and one prescription vial containing

seventy-five dosage units of Vicodin, a

Schedule III controlled substance,

without a prescription, from Mr. Sychak

and Medicap Pharmacy in exchange for

$277.00 in cash. These prescription

vials listed three different aliases

previously used by the confidential

source. The DEA investigation

subsequently revealed that Mr. Sychak

created fraudulent records of this

transaction by indicating that these

drugs were dispensed to three different

individuals; (11) On April 24, 1998, an

additional confidential source illegally

obtained from Mr. Sychak and Medicap

Pharmacy two prescription vials

containing seventy-five hydrocodone

each and another vial containing sixty

hydrocodone in exchange for $281.00 in

cash. Mr. Sychak listed on the vials

three different aliases previously used

by the confidential source and created

75960 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices

fraudulent dispensing records of this

transaction; (12) On April 24, 1998, DEA

agents and investigators executed a

search warrant upon Mr. Sychak and

Medicap Pharmacy. During the search,

Mr. Sychak admitted that he sold

controlled substances without

prescriptions. Items seized pursuant to

the search warrant included $14,906 in

cash, eight dosage units of various

Schedule III controlled substances that

were found in Mr. Sychak’s front pants

pocket, and a loaded 9mm handgun;

(13) In conjunction with the criminal

diversion investigation of Medicap

Pharmacy, DEA also conducted a

financial investigation of Mr. Sychak

and the pharmacy. As a result of this

investigation, DEA investigators

obtained a federal seizure warrant for

the business bank account of Medicap

Pharmacy, and pursuant to that warrant

DEA seized $102,650.90; (14) On

September 3, 1998, an undercover

informant obtained 1,120 dosage units

of Schedule III and IV controlled

substances from Mr. Sychak and

Medicap Pharmacy without a

prescription and in exchange for

$2,000.00 cash. On September 22, 1998,

the undercover informant again

obtained 1,120 dosage units of Schedule

III and IV controlled substances from

Mr. Sychak and Medicap Pharmacy

without a prescription and in exchange

for $2,000.00 cash; and (15) On

November 5, 1996, Mr. Sychak inquired

of DEA regarding the DEA registration

and medical license status of a

Pennsylvania medical practitioner.

Although DEA personnel informed Mr.

Sychak that the practitioner was not

registered with DEA and did not possess

a valid Pennsylvania medical license,

Medicap Pharmacy nevertheless

proceeded to fill approximately 111

controlled substance prescriptions

purportedly issued by the physician

between December 1996 and April 1997.

The Order to Show Cause further gave

notice that Respondent’s Certificate of

Registration was immediately

suspended, and the suspension would

remain in effect until a final

determination is reached in these

proceedings. The Order authorized and

directed DEA agents and diversion

investigators to place under seal and

remove all controlled substances

possessed by Respondent pursuant to

his DEA Registration and to take into

their possession the suspended

Certificate of Registration and all

unused official DEA order forms.

Respondent, through counsel, timely

requested a hearing on the issues raised

in the Order to Show Cause. The

requested hearing was held in

Pittsburgh, Pennsylvania, on July 12 and

13, 1999. At the hearing the Government

called witnesses to testify and

introduced documentary evidence. After

the hearing, the Government submitted

Proposed Findings of Fact, Conclusions

of Law, and Argument. In a letter dated

September 14, 1999, and received

September 17, 1999, counsel for

Respondent advised that, ‘‘without

conceding any of the facts in the

government pleadings or those

presented at the administrative hearing

on July 13 and 14, 1999, Nicholas A.

Sychak, will not be filing proposed

findings of fact, conclusions of law and

argument.’’ On February 23, 2000, Judge

Mary Ellen Bittner issued her Opinion

and Recommended Rulings, Findings of

Fact, Conclusions of Law, and Decision,

recommending that Respondent’s

registration be revoked, and any

pending applications for renewal be

denied. The record was transmitted to

the Deputy Administrator for final

decision March 27, 2000.

The Deputy Administrator has

considered the record in its entirety,

and pursuant to 21 CFR 1316.67, hereby

issues his final order based upon

findings of fact and conclusions of law

as hereinafter set forth. The Deputy

Administrator adopts in its entirety the

Opinion and Recommended Rulings,

Findings of Fact, Conclusions of Law,

and Decision of the Administrative Law

Judge (Opinion). His adoption is in no

manner diminished by any recitation of

facts, issues, and conclusions herein, or

of any failure to mention a fact or matter

of law. The Respondent did not

introduce evidence or call witnesses at

the hearing, therefore Judge Bittner’s

Opinion is based on testimony and

other evidence offered by the

Government.

As a preliminary matter, counsel for

Respondent raised two evidentiary

issues that must be addressed before the

merits of these proceedings can be fully

discussed.

First, on June 9, 1999, counsel for

Respondent filed a Motion to Compel

Discovery Pursuant to Brady v.

Maryland that requested Judge Bittner to

issue ‘‘an order requiring DEA to

preserve and to provide defendant,

within a time to be specified, any and

all actual and potential exculpatory

evidence relating to the issues of guilt

or punishment currently known to the

Government, its agents, and

representatives, or which may become

known to them by the exercise, on their

part, of due diligence.’’ (Emphasis

original). In support of this request,

counsel for Respondent cites numerous

cases applying Brady v. Maryland, 373

U.S. 83 (1963) (Brady) in various

criminal contexts. Counsel for

Respondent did not address the issue

and cited no authority for the

proposition that Brady is or should be

applicable to civil proceedings, much

less an administrative proceeding, as is

the case here. On June 24, 1999, the

Government filed an Opposition to

Respondent’s Motion to Compel

Discovery Pursuant to Brady v.

Maryland, arguing that the

Administrative Procedure Act (APA)

confers no independent discovery right;

that Brady applies only in the criminal

context; that DEA regulations govern

discovery in these proceedings; and that

the DEA regulations provide for

adequate discovery. On June 30, 1999,

Judge Bittner issued a Ruling and Order,

finding Brady inapplicable to these

proceedings, but further finding that

because these proceedings are

adversarial, ‘‘on the grounds of fairness,

* * * the Government must disclose

any exculpatory information in its

possession when such information is

timely requested by a respondent.’’ In

response, the Government filed on July

7, 1999, an Emergency Request For

Consent to File Appeal to the June 30,

1999, Ruling of the Administrative Law

Judge, arguing that neither the APA nor

the DEA regulations governing the

proceedings provide for the disclosure

of exculpatory information, and further

that Judge Bittner’s Order ‘‘constitutes a

significant and unprecedented

departure from DEA regulations and

practice.’’ The Government also argued

that Judge Bittner’s Order would place

a severe burden upon DEA, including

the potentialities of placing ongoing

investigations and the identities of

confidential informants at risk.

Subsequently, on July 8, 1999, Judge

Bittner issued a Memorandum to

Counsel Clarifying Ruling and Order,

limiting the scope her previous ruling

somewhat by requiring the

Government’s counsel only ‘‘to review

files available to him and on which the

Government relied in preparing its

prehearing statements for information

that would clear or tend to clear

Respondent from alleged fault or guilt as

to the allegations of Respondent

misconduct made in the Government’s

prehearing statements in this

proceeding[.]’’ On the same day, Judge

Bittner issued a Ruling Denying Request

for Consent to File Appeal, denying the

Government’s request to file an appeal

pursuant to the Clarifying Ruling and

Order. On July 9, 1999, the Government

filed a Response and Objection to

Ruling Denying Request For Consent to

File Appeal reiterating its objections

and requesting that the issue be made

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices 75961

part of the official administrative record

and forwarded to the Deputy

Administrator for consideration.

The Deputy Administrator agrees with

the Government, for the following

reasons:

First, these proceedings are governed

generally by the APA, and specifically

by the procedures set forth at 21 CFR

1316.41–1316.68. See 21 CFR 1316.41.

What applicable caselaw there is on the

issue finds that the APA confers no

independent discovery right;

McClelland v. Andrus, 606 F.2d 1278,

1285 (D.C. Cir. 1979); National Labor

Relations Board v. Valley Mold Co., Inc.,

530 F.2d 693 (6th Cir. 1976) (cert.

denied, 429 U.S. 824 (1976)); and that

the extent of discovery in administrative

proceedings is primarily determined by

the agency; Mister Discount

Stockbrokers, Inc. v. Securities

Exchange Commission, 768 F.2d 875,

878 (7th Cir. 1985) (finding Brady

inapplicable to agency administrative

proceedings). As the Government

correctly points out, neither the APA,

nor the relevant DEA regulations, nor

prior published DEA precedent,

authorize the Government’s production

of exculpatory information.

Second, the applicable DEA

Regulations, supra, supply more than

sufficient due process, whether

Respondent’s DEA Registration is

viewed as a license conferred based on

the public interest alone, or whether it

is also viewed as a property or a liberty

interest. The pertinent DEA Regulations

governing these proceedings authorize a

pre-hearing conference and written prehearing statements for inter alia the

simplification of the issues, stipulations,

identification of witnesses, and the

advance submission of all documentary

evidence and affidavits for

identification; an administrative

hearing, reported verbatim;

representation by counsel; allow for the

introduction of evidence and

documents; provide for witnesses and

documents to be subpoenaed; allow for

the examination and cross-examination

of witnesses; allow for the parties to

make written proposed corrections to

the transcript of the hearing; allow for

the parties to submit proposed findings

of fact and conclusions of law; and also

allow for the parties to file exceptions

to the ALJ’s recommended decision,

findings of fact and conclusions of law.

Furthermore, the pre-hearing conference

pursuant to 21 CFR 1316.54 and the

prehearing disclosure of witness

testimony and documentary evidence

pursuant to 21 CFR 1316.57 and

1316.58, set forth in each party’s prehearing statement, provide more than

adequate pre-hearing disclosure of the

issues and evidence to be submitted in

these proceedings. In its June 24, 1999,

memorandum of Opposition, the

Government notes that ‘‘[i]n this

proceeding, the evidentiary items that

the Government intends to offer were

outlined in its March 1, 1999,

Prehearing Statement and the May 24,

1999, supplement thereto. The

Government has provided to the

Respondent all evidentiary items that it

intends to offer during the upcoming

administrative hearing.’’ Thus, the

Deputy Administrator finds the current

DEA regulations provide more than

adequate discovery in these

proceedings, and there was no need for

the Government to take the

unprecedented and extraneous step of

disclosing potentially exculpatory

information.

Third, in her June 30, 1999, Ruling

and Order, Judge Bittner stated her

belief that the burden said Order placed

upon the Government was ‘‘minimal, for

the Government need only review its

files to determine if such information

exists.’’ Following the filing of the

Government’s June 24, 1999, Opposition

memorandum, Judge Bittner attempted

to narrow the scope of her Order in her

July 8, 1999, Clarifying memorandum by

limiting the Government’s burden to

review of those files ‘‘available * * *

and on which the Government relied in

preparing its prehearing statements for

[exculpatory] information * * * as to

the allegations of Respondent

misconduct made in the Government’s

prehearing statements in the

proceeding[.] ’’ The Deputy

Administrator agrees with the

Government that, even in its more

limited form, Judge Bittner’s Order

places a significant burden on the

Government. The Order creates a risk of

disclosure of sensitive information

which could reveal the identity of

confidential informants, compromise

the effectiveness of investigative

techniques, or compromise an ongoing

criminal investigation concerning the

Respondent on third parties. The Order

will also require the Government to

address Privacy Act issues with respect

to information concerning third parties.

For the above-stated reasons, the

Deputy Administrator finds that the

Government is not required to disclose

potentially exculpatory information to

Respondent or counsel for Respondent

at any phase of these proceedings.

The second evidentiary issue raised

by counsel for Respondent is his

assertion of a continuing objection to

the Government’s use of hearsay

evidence at the hearing. It is well

established, however, that hearsay is

admissible in these proceedings. See

Arthur Sklar, R.Ph., d/b/a King

Pharmacy, 54 FR 34623, 34627 (DEA

1989). ‘‘Hearsay is both admissible, and

may, standing by itself, constitute

substantial evidence in support of an

administrative decision.’’ Klinestiver v.

DEA, 606 F.2d 1128 (D.C. Cir. 1979).

Judge Bittner addressed this issue at the

hearing and in her Opinion, and she has

indicated that she considered the

hearsay nature of the evidence when

determining the evidentiary weight to

give it; and she further indicated that,

where she has relied on hearsay

evidence, she did so because she found

it reliable. See Ramon P. Johnson v.

United States, 628 F.2d 187, 190 (D.C.

Cir. 1980). The Deputy Administrator

concurs with Judge Bittner’s analysis

and findings of fact with regard to this

issue.

Medicap Pharmacy is located in

Murrysville, Pennsylvania. According to

one of the Government’s witnesses,

Karen Ruffner, Nicholas A. Sychak

opened the pharmacy in 1989 or 1990.

The pharmacy was first registered with

DEA on July 2, 1991. On June 20, 1996,

a confidential informant advised

Diversion Investigator John Conlon of

the DEA Pittsburgh Resident Office that

Mr. Sychak was selling controlled

substances to certain individuals

without a valid prescription and for no

legitimate medical purpose.

As a result of this information, DEA

initiated an investigation of the

Respondent, and various Pennsylvania

State law enforcement agencies

subsequently joined the investigation.

Surveillance and intelligence gathering

identified Lynette Reffner and Steve and

Karen Ruffner as frequent visitors to the

pharmacy. Investigators also searched

the pharmacy’s dumpster and found

computer printouts of purported

controlled substance dispensings. These

printouts listed an individual’s name, a

prescription number, the drug, the date

it was dispensed, and the name of the

physician who purportedly authorized

the dispensing. Agent Edward

Cartwright of the Pennsylvania Bureau

of Narcotics Investigations and Drug

Control (BNIDC) testified that a review

of these printouts disclosed

discrepancies, such as prescriptions

whose dates were inconsistent with the

computer’s system of numbering

prescriptions in chronological order.

According to Agent Cartwright, these

printouts indicated that some

prescriptions were predated.

Investigators subsequently learned from

pharmacy employees that Mr. Sychak

also ‘‘predated’’ prescriptions by

substituting an old ribbon in the

pharmacy’s printer to make it appear

75962 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices

that a label was older than the date the

drug was actually dispensed.

As the Order to Show Cause indicates,

there are numerous separate incidents

upon which this proceeding is based.

Therefore, the different incidents are

herein organized by the nine subsequent

numbered sections which group the

relevant facts, though not necessarily in

chronological order, since the

timeframes of many of the events

described herein overlap.

1. Michael Ray’s 1997 Undercover

Purchases from Medicap Pharmacy

Agent Cartwright had arrested

Michael Ray several years prior to the

investigation of Respondent. Mr. Ray

was again arrested in the spring of 1997,

and the arresting agent asked Agent

Cartwright for information about Mr.

Ray. Consequently, Agent Cartwright

spoke to Mr. Ray, who said that for the

previous two years Mr. Sychak had

filled forged controlled substance

prescriptions for him and that these

prescriptions listed ‘‘Ed Olson’’ as the

patient. At some point, Mr. Ray agreed

to act as an undercover informant;

Agent Cartwright testified that Mr. Ray

was not offered anything in return for

his cooperation except that Agent

Cartwright appeared at Mr. Ray’s

sentencing hearing and advised the

court of Mr. Ray’s cooperation.

On August 8, 1997, Mr. Ray

telephoned Mr. Sychak, pretending to

be a Dr. Wigle, a name he had picked

out of a telephone directory, and asked

for sixty hydrocodone 7.5 mg. extra

strength, with no refills, for ‘‘Ed Olson.’’

That same day, Mr. Ray went to

Medicap Pharmacy wearing a recording

device, and carrying funds Agent

Cartwright had provided him. Mr. Ray

paid $37.50 and received the sixty

hydrocodone he had requested. The

memorialization of the oral

prescriptions lists one refill.

On August 15, 1997, Mr. Ray again

called the pharmacy, pretending to be a

Dr. Beck, to authorize a prescription for

hydrocodone for Ed Olson. ‘‘Dr. Beck’’

was a fictitious physician invented by

DEA for whom Mr. Ray provided

fictitious telephone and DEA

registration numbers. Mr. Ray called the

pharmacy again to ask if the

prescription was ready, and spoke with

Mr. Sychak’s wife. Mr. Ray said that he

knew he had refills from Dr. Wigle’s

prescription, and Ms. Sychak said

something to the effect that there should

not be any problem and that she would

give him a refill of what was on the

computer screen. Mr. Ray then visited

the pharmacy and paid $37.50 for a

‘‘refill’’ of the Dr. Wigle prescription.

Mr. Sychak refused to fill the purported

prescription from Dr. Beck, telling Mr.

Ray that he first wanted to use the refills

from Dr. Wigle and that the information

about Dr. Beck, including his physician

license number and his DEA number,

were not yet in the pharmacy’s

computer system.

On August 22, 1997, Mr. Ray returned

to Medicap Pharmacy and paid $37.50

for a second refill of sixty hydrocodone

from the Dr. Wigle prescription. Mr. Ray

also had with him a blank prescription

form listing the information for Dr. Beck

so that Mr. Sychak could enter the

information into the pharmacy

computer. Agent Cartwright testified

that Mr. Ray gave the form to Mr.

Sychak, who said it would be helpful

and put the form in his pocket.

On August 29, 1997, Mr. Ray was sent

into the pharmacy with a recording

device. Prior to this visit, a prescription

for hydrocodone purportedly authorized

by Dr. Beck had been called in to the

pharmacy. During that visit, Mr. Ray

also tried to obtain other controlled

substances using the blank Dr. Beck

form, but Mr. Sychak refused to provide

him any drugs, saying that DEA

investigators sometimes inspected the

pharmacy and might realize that the

handwriting on Dr. Beck’s prescription

form was the same as that on other

pharmacy records. Mr. Sychak returned

the blank form to Mr. Ray. Mr. Ray took

the blank form with him when he left

the pharmacy and, in the presence of

Agent Cartwright, filled it out for sixty

Percocet. Mr. Ray then took the form

back into the pharmacy, paid $39.83 in

cash, and received sixty Percocet.

Mr. Ray made another undercover

visit to the pharmacy on September 5,

1997. Mr. Ray asked for the

hydrocodone purportedly authorized by

Dr. Beck for Ed Olson, and presented a

written prescription for Percocet in

some other patient name. Agent

Cartwright testified that investigators

had intentionally made this Percocet

prescription facially invalid by showing

the patient as someone other than the

person who presented it. Ray paid

$37.50 for sixty hydrocodone 7.5 mg.

with APAP, but Mr. Sychak refused to

fill the Percocet prescription. Mr. Ray

then took from his pocket a blank

prescription form purporting to be that

of Dr. Beck and filled in the requisite

information in Mr. Sychak’s presence.

Mr. Sychak said something to the effect

that most of his customers did not fill

out their own prescriptions in front of

him, but nonetheless filled the

prescription, providing Mr. Ray sixty

Roxicet in exchange for $47.95. On

September 12, 1997, Mr. Ray again

visited Respondent and obtained

hydrocodone pursuant to the purported

authorization of Dr. Beck, paying $37.50

for the drug.

As noted above, investigators

obtained records of purported

dispensings from Respondent’s trash

dumpster. Among these was the

pharmacy’s receipt for the Roxicet

provided to Mr. Ray on September 5.

2. The Delivery of Controlled

Substances to Walter, Linda, and James

Kaczynski

Pennsylvania state law requires

pharmacists to submit to BNIDC

monthly a form known as a ‘‘BDC–6’’

listing information about all dispensings

of Schedule II controlled substances. In

early 1998 Investigator Conlon reviewed

BDC–6 forms Respondent had submitted

for the period April 1995 through

October 1997. Respondent listed a large

number of Percocet and Roxicet

prescriptions purportedly issued by a

Dr. Mark Fennema to a Walter

Kaczynski, a Linda Kaczynski, and a

James Kaczynski. Although the BDC–6

reports indicated that Dr. Fennema was

an emergency room physician at a

hospital in south Pittsburgh, when

investigators subpoenaed the hospital

for the Kaczynskis’ medical records, the

hospital responded that it had not

treated any patients with any of those

names.

In about March 1998 Investigator

Conlon telephoned Dr. Fennema, who

was at that time in upstate New York.

Dr. Fennema told Investigator Conlon

that he generally saw patients only in

the emergency room and that he would

have no reason to continually prescribe

medications to the same patient. After

reviewing a faxed copy of the list of

prescriptions, Dr. Fennema told

Investigator Conlon that he had not

issued them.

3. The Deliveries to Lynette Reffner and

Michael Riley

Investigator Conlon testified that

Medicap Pharmacy records showed that

it had dispensed controlled substances

to a Lynette Reffner pursuant to

prescriptions purportedly issued by a

Dr. Richard Kucera between July 17,

1997, and December 23, 1997, and

pursuant to prescriptions purportedly

issued by a Dr. David Blinn between

July 17, and December 30, 1997. The

prescriptions that Dr. Blinn purportedly

issued totaled 1,620 dosage units of

Vicodin, 715 dosage units of

hydrocodone, 164 dosage units of

Hydroment syrup, and 60 dosage units

of phenobarbital. The prescriptions that

Dr. Kucera purportedly issued

aggregated to 1,390 dosage units of

alprazolam, 1,240 dosage units of ApOxazepam, 130 dosage units of

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices 75963

diazepam, and 100 dosage units of

Darvocet.

On March 25, 1998, Investigator

Conlon and Agent Cartwright

interviewed Dr. Kucera, who said that

he had treated Lynette Reffner but had

not authorized any of the prescriptions

at issue. Investigator Conlon, DEA

Diversion Investigator Kurt Dittmer of

DEA’s Pittsburgh office, and Agent

Cartwright interviewed Dr. Blinn on

March 30, 1998, and showed him the

list of prescriptions. Dr. Blinn advised

the investigators that he had not

authorized any of them.

On April 29, 1998, Investigators

Conlon and Dittmer, Agent Cartwright,

and Sergeant Stan King of the

Murrysville Police Department

interviewed Ms. Reffner and her

paramour, Michael Riley. Subsequently,

on June 17, 1999, Ms. Reffner executed

a declaration in evidence as a

Government exhibit. In the declaration,

Ms. Reffner said she originally had valid

prescriptions for controlled analgesics

filled at Medicap Pharmacy, but in 1992

or shortly thereafter Mr. Sychak began

giving her refills for these medications

that were not authorized by her

physician. Ms. Reffner further stated

that by about 1994 she had arranged

with Mr. Sychak to purchase drugs from

him upon presenting lists of the

controlled substances she wanted.

Investigators found some of these lists

during the searches of Medicap

Pharmacy’s trash dumpster.

Ms. Reffner stated that every Tuesday

she and Mr. Riley purchased sixty

Vicodin ES, sixty Xanax, fifty Darvocet,

fifty Soma, and eight ounces of

Hydromet syrup, and every Friday they

bought the same quantities of Xanax,

Soma, and Hydromet syrup, along with

eighty Vicodin ES and sixty Darvocet.

Ms. Reffner stated that Mr. Sychak had

told her and Mr. Riley that Soma in

combination with the other drugs would

‘‘intensify the high,’’ and that they

should take a half-tablet of Soma at

mealtimes. Ms. Reffner stated that the

Soma was listed on Mr. Riley’s patient

record at the pharmacy, but that Mr.

Sychak said he recorded the other drugs

as dispensed to her, because she had

been severely injured some years earlier

and her medical history ‘‘would cover

it.’’ Ms. Reffner also stated that at some

point Mr. Sychak directed Mr. Riley to

come to the pharmacy only on Tuesdays

and Fridays, when Mr. Sychak and his

wife were present, because Mr. Sychak

did not want his relief pharmacist to

know about this arrangement. Ms.

Reffner stated that Mr. Riley and Mr.

Sychak also socialized together, and that

Mr. Riley worked on Mr. Sychak’s cars

and Mr. Sychak gave him ‘‘care

packages’’ of controlled substances,

including Lorcet and Vicodin.

Ms. Reffner further stated that in late

1995 she entered a methadone treatment

program and that Mr. and Ms. Sychak

agreed to provide her a phenobarbital to

lessen potential withdrawal symptoms.

Ms. Reffner said that both she and Mr.

Riley wanted to get help for their

addiction and that the Sychaks said they

would decrease the quantity of

controlled substances they supplied, but

in fact the quantity increased. Ms.

Reffner also stated that on numerous

occasions when she presented a

legitimate prescription for a noncontrolled substance, Mr. Sychak told

her she would not have to pay for the

medication, and that he would charge it

to some other customer’s insurance.

Finally, Ms. Reffner stated that Mr.

Sychak filled some drugs to her Medical

Assistance card and that she paid cash

for the rest, that Mr. Sychak always

extended her and Mr. Riley credit when

they did not have enough money to pay

for the drugs they purchased, and that

Mr. Sychak maintained a record of how

much they owed in a pink notebook.

Investigator Conlon testified that as of

the hearing date Ms. Reffner and Mr.

Riley were the targets of an ongoing

investigation, and he anticipated that

they would be charged with state

narcotics violations. Investigator Conlon

further testified that Mr. Riley and Ms.

Reffner agreed to cooperate in the

investigation and that investigators told

them that their cooperation would be

made known to the proper authorities at

the time of sentencing.

4. The Deliveries to Karen and Steven

Ruffner

The previously mentioned trash

dumpster searches disclosed receipts

purportedly showing Dr. Ralph Capone

as the authorizing physician for

numerous controlled substance

prescriptions for patients named Daniel

Frieben, Amy McKluskey, Phyllis

Ruffner, Charles Ruffner, Steve Ruffner,

Grace Ruffner, Ruth Snow, and Deborah

McCracken. In November 1997, Agent

Cartwright interviewed Dr. Capone and

asked him about these individuals. Dr.

Capone told Agent Cartwright that

although Mr. Frieben had been his

patient, Dr. Capone had not treated him

since about 1993, and that Karen

Ruffner was his patient during the

period at issue but that he did not

authorize any of the prescriptions

shown to him.

Karen Ruffner testified as a

Government witness. Ms. Ruffner’s

mother was Sandra Frieben, who died

in 1992. For some period of time prior

to her death Ms. Frieben worked as a

medical assistant to Dr. Capone. Ms.

Ruffner testified that Ms. Frieben

suffered from a number of painful

conditions for which she took, Soma,

Talwin, and Vicodin ES and that she

abused controlled substances from the

end of 1989 until her death. Ms. Frieben

obtained drugs by calling prescriptions

to pharmacies for herself, saying that the

prescriptions were authorized by Dr.

Capone, and by writing fake

prescriptions for herself on prescription

pads she took from Dr. Capone’s office.

Ms. Ruffner testified that she saw Ms.

Frieben write some of these

prescriptions, that Ms. Frieben made

some of the telephone calls from Ms.

Ruffner’s home, and that Ms. Frieben

asked Ms. Ruffner to take fake

prescriptions to the pharmacy for her.

Ms. Ruffner testified that she suggested

to her mother that she seek treatment for

drug abuse, but her mother refused to do

so because she did not want her

husband to learn about her problem.

Ms. Ruffner testified that although

initially her mother used different

pharmacies, eventually she obtained

drugs only from Medicap Pharmacy. At

some point, Ms. Frieben began stealing

boxes of drug samples from Dr.

Capone’s office and taking them to Mr.

Sychak, who gave her medication or

discounts on medication in exchange.

Ms. Ruffner accompanied her mother on

these visits to the pharmacy, and

testified that after she had done so three

or four times, Ms. Frieben asked her to

take the samples to Mr. Sychak and

bring back her medication. Ms. Ruffner

testified that her mother called Medicap

Pharmacy both from Dr. Capone’s office

and from Ms. Ruffner’s home to

authorize prescriptions for herself for

Vicodin, Talwin, or Soma, and sent Ms.

Ruffner to the pharmacy to pick up the

drugs and to pay for them in cash. Ms.

Ruffner further testified that her mother

instructed her to deal only with Mr.

Sychak.

Ms. Ruffner testified that her mother

also asked her to call the pharmacy and

would write down exactly what Ms.

Ruffner was to say. Ms. Ruffner spoke

only to Mr. Sychak, and testified that in

these calls she told Mr. Sychak that she

was ‘‘Beth’’ from Dr. Capone’s office (as

far as she knew, a made-up name) and

that she was ‘‘calling for Sandra

Frieben, for Vicodin number 50.’’ Ms.

Ruffner also testified that the price of

the controlled substances increased over

time so that her mother paid cash in

addition to providing Mr. Sychak the

drug samples. Ms. Frieben eventually

paid about $89 for 60 Talwin, about $68

for 50 Vicodin, and $34 for generic

hydrocodone.

75964 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices

Ms. Ruffner further testified that her

own health had been ‘‘fairly poor’’ all

her life, that she had suffered from

chronic pain since she was twelve years

old, and that various physicians had

prescribed her controlled substances

including Vicodin, Vicodin ES, and

Soma. Ms. Ruffner started sharing her

mother’s medications in 1989, when she

was nineteen years old, but testified that

she never took her mother’s drugs

without the latter’s knowledge.

Ms. Ruffner testified that from 1992

until 1994 she received legitimate

prescriptions for Valium and Vicodin,

and that she filled all these

prescriptions at Medicap Pharmacy. Ms.

Ruffner further testified that frequently

the vial she received from the pharmacy

indicated more authorized refills than

the prescription did, but she never

asked Mr. Sychak why refills were

added. In 1994 Ms. Ruffner’s physician

stopped prescribing her Vicodin, but

Ms. Ruffner continued to receive drugs

from Mr. Sychak because he gave her

more refills than were authorized by the

written prescription. As an example,

Ms. Ruffner testified that if a written

prescription for 80 Vicodin ES showed

one refill, the vial might show four

refills. Ms. Ruffner admitted, however,

that she did not know whether Mr.

Sychak obtained the physician’s oral

authorization for additional refills.

Ms. Ruffner further testified that at

some point ‘‘the refills just stopped,’’

and Mr. Sychak told her to call and ask

for a prescription for a named person

because ‘‘I have to be able to say that I

received a phone call from somebody.’’

Consequently, according to Ms. Ruffner,

she called the pharmacy pretending to

be ‘‘Beth’’ from Dr. Capone’s office, told

Mr. Sychak she was authorizing a

prescription for Vicodin ES, and gave

the patient’s name variously as Amy

McKluskey, Dan Frieben, Tina Pavolik,

Ruth Snow, Debbie McCracken, or

Charles, Steve, Phyllis, or Grace Ruffner.

All of these names were those of

individuals who were either friends or

family members of Ms. Ruffner or of her

husband, Steven Ruffner. According to

Ms. Ruffner, between 1994 and 1998 she

made ‘‘hundreds’’ of such telephone

calls to the pharmacy.

Ms. Ruffner testified that sometimes

Mr. Sychak would fill ‘‘prescriptions’’

without requiring her to telephone him,

but other times he would tell her to call

him so that he could say there had been

a telephone call. According to Ms.

Ruffner, she usually handed Mr. Sychak

a piece of paper with a list of names and

the controlled substance to be attributed

to each name, and sometimes she

handed the list to one of the women

who worked at the pharmacy. (Agent

Cartwright testified that he found such

lists during the searches of Medicap’s

trash dumpster.)

Ms. Ruffner testified that she paid

cash for the drugs and that in 1994 she

paid about $89 for sixty Vicodin, but

that almost every month Mr. Sychak

increased the price, telling her that the

manufacturer had increased its price.

Ms. Ruffner also testified that she

initially obtained drugs from

Respondent once per month and shared

them with her husband, and beginning

in about 1996 she and her husband

began selling Lorcet and Vicodin in

quantities of ten to fifty dosage units.

According to Ms. Ruffner, she and her

husband used the proceeds of their drug

sales to purchase more drugs from Mr.

Sychak for their own use and to sell.

Eventually, according to Ms. Ruffner,

she was paying Mr. Sychak a thousand

dollars once or twice per week for

drugs; she and her husband would take

‘‘what we needed, and we would sell

the rest.’’ Ms. Ruffner also testified that

when she was in the pharmacy and

other people were present in addition to

Mr. Sychak, she signaled to him that she

wanted Vicodin, Lorcet, or Lortab by

referring to Vicodin as ‘‘whites,’’ and

Lorcet or Lortab as ‘‘blues.’’

In early 1998 local police arrested Ms.

Ruffner’s husband for possession of

controlled substances. Ms. Ruffner

testified that when she told Mr. Sychak

about the arrest he expressed concern

about whether any vials from Medicap

Pharmacy would be found in Mr.

Ruffner’s car. Ms. Ruffner further

testified that a few days after the arrest

she and her husband asked Mr. Sychak

for a prescription vial with a legitimatelooking label on it so Mr. Ruffner could

say that he had drugs legally. Mr.

Sychak complied with Ms. Ruffner’s

request, and provided him with a

legitimate-appearing prescription vial.

At some point Mr. Sychak also warned

Mr. Ruffner to be sure that he did not

leave pill bottles in his car and to

destroy the bottles when he had gotten

rid of the contents.

On April 24, 1998, Investigator

Conlon and three other law enforcement

officers visited Ms. Ruffner at her

father’s home, where she was staying.

Investigator Conlon asked Ms. Ruffner

to go to the local police station, and she

agreed to do so. At the Murrysville

police station, Ms. Ruffner agreed to

cooperate in the investigation and Agent

Cartwright asked her to make a

controlled buy from Respondent that

same day. Investigators fitted Ms.

Ruffner with a recording device and

gave her $400 to make the purchase.

They also asked her to follow the

procedure she normally used to obtain

drugs, and consequently she prepared a

note with the words, ‘‘Karen’s Vicodin

(brand),’’ ‘‘Daniel’s Vicodin (generic),’’

‘‘Tina’s Lorcet (generic),’’ and ‘‘Amy’s

Lorcet (generic).’’ Next to the reference

to ‘‘brand,’’ Ms. Ruffner drew an arrow

to the comment, ‘‘I only have $400.

However you can help me out. Thanks.’’

Ms. Ruffner went to Medicap Pharmacy

and gave the list to Mr. Sychak, who

filled vials with the drugs listed. The

total cost of the drugs was $415; Ms.

Ruffner asked Mr. Sychak if she could

take the drugs and return with the

additional $15, but Mr. Sychak refused.

Consequently, Mr. Sychak retained the

Vicodin, and Ms. Ruffner left the store

with the other drugs and gave them to

Agent Cartwright. Agent Cartwright

testified that although the cash register

receipts for Ms. Ruffner’s undercover

purchase showed a small amount, such

as $3 or $6, she actually was spending

about $300 to $365. Agent Cartwright

further testified that Mr. Ruffner also

paid substantially more for the

controlled substances he was

purchasing from Respondent than the

amount reflected on the cash register

receipt.

As of the hearing date, Ms. Ruffner

had not been charged with any criminal

conduct. She testified, however, that

Agent Cartwright had told her that she

would be charged but had not told her

what the charges would be. Investigator

Conlon testified that both Mr. and Ms.

Ruffner agreed to cooperate in the

investigation and that the only

statements investigators made to them

were that their cooperation would be

made known to the proper authorities at

the time of sentencing.

Counsel for Respondent contended at

the hearing that Ms. Ruffner, the only

informant to testify in this proceeding,

is not credible. In her Opinion, Judge

Bittner recognizes that Ms. Ruffner is

not a totally disinterested participant in

this proceeding in light of her own

status as a target of an investigation.

Nonetheless, Judge Bittner found that

Ms. Ruffner appeared candid and

forthright, and on the basis of her

demeanor Judge Bittner found her to be

believable. In addition, Judge Bittner

found, and the Deputy Administrator

agrees, that much of Ms. Ruffner’s

testimony was consistent with

documentary and other evidence and, as

noted above, Respondent adduced no

evidence and thus Ms. Ruffner’s

testimony is uncontradicted. See

Singers-Andreini Pharmacy, 63 Fed.

Reg. 4668, 4672 (DEA 1998).

5. The April 24, 1998, Search

On April 23, 1998, a United States

Magistrate Judge issued a search warrant

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices 75965

for the premises of Medicap Pharmacy.

The warrant was executed on April 24,

1998. As part of the search, investigators

received a ‘‘dump’’ of Mr. Sychak’s

computer, and found that ‘‘Walter

Kaczynski’’ was an alias used by a Larry

Stepinski.

The search disclosed substantial

amounts of cash, specifically, $11,394 in

Mr. Sychak’s briefcase, $2,306 in daily

deposit envelopes, $706 in a cash

register, and $150 from a shelf in a work

area. Investigators also retrieved a ledger

listing various persons, including targets

of investigations, and a running balance

of what they owed the pharmacy. In

addition, investigators recovered $520

and a small quantity of loose controlled

substance tablets from Mr. Sychak’s

pants pockets. This cash was the State

funds that Agent Cartwright had

supplied to Karen and Steve Ruffner

earlier in the day and that they had used

to make an undercover purchase of

controlled substances at the pharmacy.

Investigator Dittmer testified that the

currency was photocopied before it was

provided to the Ruffners and that the

serial numbers on the photocopies

matched those on the bills found in Mr.

Sychak’s pockets.

Investigator Dittmer also testified that

he asked Mr. Sychak if he had any rifles

or handguns on the premises and that

Mr. Sychak said he did not have any

weapons. The search disclosed a loaded

9mm semiautomatic handgun in a

plastic grocery bag, however, that also

contained cash. The weapon was

registered to Mr. Sychak.

During the search, investigators also

conducted an inventory of several

products containing hydrocodone.

Respondent had on hand 18,000 dosage

units of Vicodin, 13,000 dosage units of

Lorcet, 1,500 dosage units of Didrex,

5,200 dosage units of Darvocet, 3,000

dosage units of Soma, and 10,500

dosage units of alprazolam. Although

Soma is not controlled under federal

law, Investigator Dittmer testified that

he included it in his inventory because

it is sometimes used to boost the ‘‘high’’

provided by hydrocodone.

Investigator Dittmer and Agent

Cartwright interviewed Mr. Sychak

during the search and asked him if he

ever dispensed a drug without a

legitimate prescription. Mr. Sychak

responded affirmatively and said that he

sold drugs to people who were nagging

him, naming Karen and Steven Ruffner.

The investigators also asked Mr. Sychak

about the ‘‘Dr. Beck prescriptions,’’ and

Mr. Sychak said that he had spoken

personally with Dr. Beck about those

prescriptions. When informed that Dr.

Beck was fictitious, Mr. Sychak did not

respond.

6. The Interviews of Respondent’s

Employees

During the April 24, 1998, search

investigators interviewed Sylvia

Macerelli, a pharmacy technician/clerk

employed at Medicap Pharmacy. Ms.

Macerelli later provided a declaration,

in evidence as a Government exhibit.

Ms. Macerelli stated that she, pharmacy

technician/clerk Amy Meyers, and relief

pharmacist Fred Werl believed that Mr.

Sychak was committing fraud and

distributing drugs illegally. More

specifically, Ms. Macerelli said that Mr.

Sychak was the only pharmacy

employee who waited on the Ruffners

and Ms. Reffner. Ms. Macerelli stated

that the Ruffners never presented

prescriptions, but gave Mr. Sychak lists

of controlled substances on scraps of

paper, and that they usually received

Vicodin and Lorcet. Ms. Macerelli stated

that Ms. Reffner similarly presented lists

of controlled substances she wished to

purchase, that she received drugs in her

own name and Mr. Riley’s, and that she

received Vicodin, Darvocet, Xanax, and

hydrocodone products. Ms. Macerelli

further stated that Mr. Sychak allowed

Ms. Reffner to run a tab, and as of the

date of the search she owed

approximately $1,000.

Ms. Macerelli also said that Mr.

Sychak frequently directed her and Ms.

Meyers to add unauthorized refills to

prescriptions, telling them that he had

checked with the prescribing physician

for authorization, but that she never

observed Mr. Sychak telephone a

physician for such authorization until a

few weeks before the search. Ms.

Macerelli further stated that she and Ms.

Meyers recognized Ms. Ruffner’s voice

on the telephone when she telephoned

the pharmacy and pretended to be

calling from a doctor’s office. Ms.

Macerelli further stated that in the

summer of 1997 an assistant in a

doctor’s office across the street from the

pharmacy complained to Mr. Sychak

that medicines that she never received

were fraudulently billed to her

insurance company. According to Ms.

Macerelli, she and Ms. Myers would

note that although they indicated on the

log sheet the last customer of the day to

receive drugs billed to insurance plans,

the next day there would be additional

entries added to the log.

Investigators interviewed Amy

Meyers on May 7, 1998. On May 25,

1999, Ms. Meyers executed a

declaration, in evidence as a

Government exhibit, in which she

corroborated many of Ms. Macerelli’s

statements. Ms. Myers corroborated the

information that the Ruffners, Ms.

Reffner, and Mr. Riley, obtained

controlled substances from Medicap

Pharmacy after presenting handwritten

notes listing drug names, numbers of

dosage units, and the names of persons

for whom the drugs were purportedly

prescribed, and stated that Walter

Kaczynski, Craig Smilack, Linda Nader,

Grace Seigworth, Scott Hoyle, Gary

Harpis, Tom Farrah, Steve Cuccaro, and

Camille Maggio-Palmiere also received

controlled substances in a similar

fashion. Ms. Meyers stated that all these

individuals either paid cash, ran a tab,

or used a Medical Assistance card. Ms.

Meyers also stated that she checked her

own personal prescription profile at the

pharmacy in the spring of 1998 and

discovered numerous prescriptions

listed as billed to her insurance carrier

that were allegedly issued to her by

various physicians she had never seen

for drugs she had never received. Ms.

Myers stated that when she confronted

Mr. Sychak about these prescriptions he

said, ‘‘How do you think I pay for your

health insurance?’’

On June 8, 1998, investigators

interviewed Mr. Fred Werl. Mr. Werl

said that he had discovered that the

prescriptions issued to the Kaczynskis

were forgeries when he called the

hospital to verify a prescription and was

told that Dr. Fennema was no longer

associated with the hospital. Mr. Werl

also told the investigators that he told

Mr. Sychak about these fraudulent

prescriptions and Mr. Sychak said he

would take care of the matter, but that

Mr. Sychak in fact continued to fill

these prescriptions. Mr. Werl said that

‘‘Walter Kaczynski’’ came to the

pharmacy and gave Mr. Sychak gifts, but

that he did not know whether these

were in exchange for drugs. Mr. Werl

told investigators that at some point he

was present when a commercial

auditing firm confronted Mr. Sychak

and told him that some of the pharmacy

documents and records were fraudulent.

Mr. Werl also told investigators about

the insurance log, and noted that one

day he counted 65 entries added after

closing hours.

7. The Controlled Buys by Arthur

Glaser

On July 27, 1998, Detective Michael

Garlecki of the Allegheny County Police

Department Narcotics Unit advised

Investigator Dittmer that an Arthur

Glaser was in custody and that a search

of Mr. Glaser’s home had revealed some

loose pills of controlled substances.

Detective Garlecki further advised

Investigator Dittmer that Mr. Glaser said

that he had obtained these drugs from

Medicap Pharmacy. Consequently,

Investigator Dittmer interviewed Mr.

Glaser, who said that on either July 17

75966 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices

or July 20, 1998, he had purchased four

bottles of Lorcet, one bottle of Vicodin,

one bottle of Xanax, 200 Valium, and

some ‘‘speed’’ from Mr. Sychak without

a prescription. Mr. Glaser said that he

obtained controlled substances in his

own name and in the names of his

brother and sister, Joseph Glaser and

Nanette Glaser, respectively.

Mr. Glaser further stated that he could

make undercover purchases from Mr.

Sychak under the direction of law

enforcement personnel. On September

2, 1998, Mr. Glaser made a recorded

telephone call to Mr. Sychak and said

he would go to the pharmacy the next

day to pick up refills on his inhaler

medication and what Investigator

Dittmer described as ‘‘other stuff.’’

On September 3, 1998, Mr. Glaser,

fitted with a recording device and a

transmitter and provided with $2,000 in

DEA funds, went to the pharmacy. Mr.

Glaser obtained from Mr. Sychak 120

Vicodin ES, 500 alprazolam, and 500

Lorcet, in exchange for the $2,000 in

cash. While Mr. Glaser was in the

pharmacy, Mr. Sychak asked Ms.

Sychak, ‘‘What’s you intuition?’’ and

she said, ‘‘I don’t know. I think it’s okay.

Art, you’re not being—everything’s okay

with you, right?’’ to which Mr. Glaser

replied, ‘‘No, my line is good. My lines

are clear. I’m okay.’’According to

Investigator Dittmer, Mr. Glaser

understood Ms. Sychak to ask if his

telephone was being tapped.

When Mr. Glaser left the pharmacy,

Mr. Sychak followed him out and told

Mr. Glaser to telephone the pharmacy

when he got home and ask whether it

was open on Sundays. Mr. Glaser agreed

to do so, and explained to investigators

that he routinely called the pharmacy

after he arrived home and used a code

phrase to let Mr. Sychak know that he

had not been stopped by law

enforcement personnel who would find

the controlled substances.

Mr. Glaser returned to Medicap

Pharmacy on September 22, 1998,

pursuant to an arrangement he made

with Mr. Sychak the day before by

telephone. Mr. Glaser was fitted with a

recording device and a transmitter and

provided with $2,000 in Government

funds. Mr. Glaser gave Mr. Sychak the

$2,000 and some sports trading cards for

Mr. Sychak’s son and received in

exchange 120 Vicodin ES tablets, 500

alprazolam tablets, and 500 Lorcet

tablets. Investigator Dittmer testified

that at some point during the visit, Mr.

Sychak told Mr. Glaser to ‘‘put the word

out on the street that Amy is doing—is

selling all these controlled substances.’’

On February 16, 1999, Mr. Glaser

executed a declaration in evidence as a

Government exhibit. In his declaration

Mr. Glaser described his arrangement

with law enforcement authorities and

the undercover visits discussed above.

He also stated, among other things, that

he and Mr. Sychak had agreed that Mr.

Glaser would purchase Lorcet in 500-

tablet quantities in the original

manufacturer’s bottles for $1,500 per

bottle. Mr. Glaser further stated that he

sold the pills for $4 each to individuals

who would then sell them for $8 each

on the street, and that he also paid Mr.

Sychak $5,000 in cash at unstated

intervals in exchange for a shopping bag

of Schedule III controlled substances.

Mr. Glaser stated that as of sometime in

1993 he routinely paid Mr. Sychak

$12,000 to $15,000 per transaction and

that sometimes Mr. Sychak kept the

pharmacy open late so that Mr. Glaser

could make these purchases.

8. The December 16, 1998, Search

As a result of the undercover

purchases, investigators obtained a

second search warrant for Medicap

Pharmacy and executed it on December

16, 1998. Investigators Conlon and

Dittmer and ten to fifteen other law

enforcement officers conducted the

search and seized, among other things,

the pharmacy computer’s hard drive.

That same day, the Deputy

Administrator issued the Order to Show

Cause and Immediate Suspension of

Registration that gave rise to the instant

proceeding.

9. The Interview of Larry Stepinski

Also on December 16, 1998,

Investigators Conlon and Dittmer and

Sergeant Stan King of the Murrysville

Police Department interviewed Mr.

Stepinski and videotaped the interview.

During the interview, Mr. Stepinski said

that about four years earlier a Robert

Mrvos had written fake prescriptions for

Percocet and Didrex, gave them to Mr.

Stepinski, and told him to take them to

Medicap Pharmacy to be filled. Mr.

Stepinski said that he told Mr. Mrvos

that the prescriptions were for

diametrically opposed drugs, but Mr.

Mrvos assured him that Mr. Sychak

would fill both. Mr Stepinski further

said that Mr. Sychak filled both

prescriptions.

Mr. Stepinski stated that Mr. Mrvos

sent various drug addicts to Medicap

Pharmacy with fake prescriptions; these

individuals had the prescriptions filled

and then turned the drugs over to Mr.

Mrvos in exchange for money.

According to Mr. Stepinski, however, at

some point Mr. Mrvos was arrested, and

Mr. Stepinski obtained the blank

prescription forms that Mr. Mrvos had

used. Mr. Stepinski stated that he wrote

the prescriptions for various fictitious

people with the last name Kaczynski,

his late uncle’s name, because he

thought such a name would be

believable inasmuch as it was hard to

spell. Mr. Stepinski also stated that Mr.

Sychak filled prescriptions for him for

two people with fictitious last names

other than Kaczynski; according to Mr.

Stepinski, he told Mr. Sychak ‘‘they

were my neighbors and could you fill

these for me?’’ Mr. Stepinski believed,

Mr. Sychak knew that these names were

fictitious.

Mr. Stepinski further stated that he

forged prescriptions for Didrex and

Percocet using blanks from three

different physicians, and that from time

to time Mr. Sychak told him, ‘‘you’re

going to have to find a new doctor,’’

which Mr. Stepinski interpreted as an

instruction to use a different physican’s

prescription blank. Mr. Stepinski further

said that Mr. Sychak told him not to

present his ‘‘prescriptions’’ to Mr. Werl,

because Mr. Werl would call the

physician to verify them.

Mr. Stepinski said that he went to the

pharmacy every two weeks with two

prescriptions, apparently one for Walter

Kaczynski and one for Linda Kaczynski,

and that he obtained Percocet every two

weeks and Didrex once per month. Mr.

Stepinski said that about a year after he

started taking the Kaczynski

prescriptions to the pharmacy he

explained to Mr. Sychak that many

people, himself among them, were using

fictitious names on prescriptions filled

at the pharmacy. Mr. Stepinski further

said that as a result of this warning, Mr.

Sychak stopped providing drugs to the

people Mr. Stepinski identified, but not

to Mr. Stepinski himself.

Mr. Stepinski said that at one point he

used five different fictitious names on

the false prescriptions, but that Mr.

Sychak told him to cut back to two

names. Mr. Stepinski further stated that

after the investigation and arrest of a

pharmacist at another pharmacy, Mr.

Sychak took him outside the pharmacy

building and told him that Percocet was

‘‘too hot,’’ and suggested he obtain

Lorcet instead. Mr. Stepinski said that

he told Mr. Sychak he could not switch

because he did not know what

instructions to write on a Lorcet

prescription, and Mr. Sychak went back

into the building, returned with Mr.

Stepinski’s receipt, and wrote the

instructions for use for Lorcet on the

back. Mr. Stepinski said that after that

conversation he wrote ‘‘prescriptions’’

for Lorcet instead of Percocet.

Apparently, these were standard

preprinted forms on which Mr. Mrvos

forged the physician’s signature. Mr.

Stepinski said that he spent about $280

per month for Percocet and about the

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices 75967

same amount for Didrex, and that he

always paid cash for the drugs.

Counsel for Respondent objected to

the introduction into evidence of the

videotape of Mr. Stepinski’s interview,

asserting that Mr. Stepinski was not

subject to cross examination, and that

Mr. Stepinski may have had reason to

cast Mr. Sychak in an unfavorable light.

Judge Bittner found, however, and the

Deputy Administrator agrees, there is

other credible evidence from the

hospital where Dr. Fennema had

worked and also Investigator Conlon’s

report of his conversation with Dr.

Fennema, that the Kaczynskis were

fictitious. In these circumstances, the

inference is warranted, which Judge

Bittner made, and with which the

Deputy Administrator concurs, that

none of the deliveries to them were

authorized. Judge Bittner also noted that

Respondent adduced no evidence that

Mr. Sychak made any attempt to verify

any of the purported prescriptions to

them.

The Deputy Administrator may

revoke a DEA Certificate of Registration

and deny any pending applications for

such a certificate ‘‘if he determines that

the issuance of such registration would

be inconsistent with the public interest’’

as determined pursuant to 21 U.S.C.

824(a)(4) an 823(f). Section 823(f)

requires that the following factors be

considered:

(1) The recommendation of the

appropriate state licensing board or

professional disciplinary authority.

(2) The applicant’s experience in

dispensing, or conducting research with

respect to controlled substances.

(3) The applicant’s conviction record

under Federal or State laws relating to

the manufacture, distribution, or

dispensing of controlled substances.

(4) Compliance with applicable State,

Federal, or local laws relating to

controlled substances.

(5) Such other conduct which may

threaten the public health and safety.

As a threshold matter, the factors

specified in section 823(f) are to be

considered in the disjunctive: the

Deputy Administrator may properly rely

on any one or a combination of those

factors, and give each factor the weight

he deems appropriate, in determining

whether a registration should be

revoked or an application for

registration denied. Henry J. Schwarz,

Jr., M.D., 54 FR 16,422 (DEA) 1989).

The Controlled Substances Act further

prohibits dispensing a Schedule II

controlled substance without the

written prescription of a practitioner,

with certain exceptions not pertinent

here. 21 U.S.C. 829(a) (1996).

The Act also prohibits dispensing a

Schedule III or IV controlled substance

‘‘without a written or oral prescription

in conformity with [the Federal Food,

Drug and Cosmetic Act,’’ 21 U.S.C.

829(b) (1996).

Furthermore, the relevant regulations

governing prescriptions and

implementing the Controlled

Substances Act, 21 CFR 1306.03 through

1306.06 (1999) provide, in relevant part,

that: (1) Prescriptions for controlled

substances may be issued only by an

individual practitioner who is

authorized to prescribe these

medications by the jurisdiction in

which he is licensed to practice his

profession and is registered by DEA or

exempt from such registrations; (2) a

prescription for a controlled substance

must be issued for a legitimate medical

purpose by an individual practitioner

acting in the usual course of his

professional practice; (3) although a

prescribing practitioner is responsible

for the proper prescribing and

dispensing of controlled substances, ‘‘a

corresponding responsibility rests with

the pharmacist who fills the

prescription,’’ (4) prescriptions for

controlled substances must be rated as

of and signed on the day issued and

must bear the full name and address of

the patient, the drug name, strength,

dosage form, quantity prescribed, and

directions for use, as well as the name,

address, and DEA registration number of

the practitioner; and (5) prescriptions

for controlled substances may be filled

only by a pharmacist acting in the usual

course of his professional practice.

The Government argues, in substance,

that Mr. Sychak filled fictitious and

fraudulent prescriptions, delivered

controlled substances without a

prescription, provided controlled

substances in exchange for stolen drug

samples, added unauthorized refills to

prescriptions, encouraged drug abusers

to place fraudulent telephone calls

purportedly authorizing dispensings,

falsified insurance records, and made

misrepresentations to investigators. The

Government further argues that even if

Mr. Sychak and Medicap Pharmacy

could be considered the victims on

occasion of stratagems by drug-seeking

individuals who presented fraudulent

prescriptions or posed as physicians,

the pharmacy abrogated its obligation to

ensure that it filled only lawful

prescriptions.

As noted above, Respondent did not

file proposed findings of fact,

conclusions of law or argument in this

proceeding. In his closing argument at

the hearing, counsel for Respondent

asserted, in substance, that much of Ms.

Ruffner’s testimony was hearsay and she

had reason to fabricate her testimony;

the Government did not offer into

evidence the tape recordings of the

undercover visits; Respondent was not

afforded the opportunity to crossexamine Mr. Stepinski or the other

informants; and the Government did not

conduct a full audit of the pharmacy. In

sum, Respondent argues that the

Government has not met its burden of

proof in this proceeding.

With regard to factor one of the public

interest analysis pursuant to 21 U.S.C.

824(a)(4) and 823(f), the

recommendation of the State licensing

board, it is undisputed that at the time

of the hearing Respondent was

authorized by the Commonwealth of

Pennsylvania to handle controlled

substances. Inasmuch as State licensing

is a necessary but not sufficient

condition for DEA registration, however,

Judge Bittner found, and the Deputy

Administrator concurs, that this factor is

not determinative.

With regard to factor two,

Respondent’s experience in handling

controlled substances, Judge Bittner

made the following factual findings,

with which the Deputy Administrator

concurs. The stated quantities of illicitly

dispensed controlled substances are

based upon the evidence of the record

as a whole. The Deputy Administrator

recognizes that Respondent’s computer

logs may not have been entirely

accurate. Testimony and other evidence,

however, such as the fraudulent

prescriptions themselves, paint a fairly

complete picture of the magnitude of

illicit activity encouraged and abetted

by Respondent. It is highly doubtful,

moreover, that Respondent would have

overstated in his computer logs the

quantities of controlled substances he

was illegally dispensing.

a. The Deliveries to Mr. Ray

On August 8, 1997, Mr. Sychak

delivered sixty hydrocodone 7.5 mg to

Mr. Ray pursuant to the fictitious oral

authorization of Dr. Wigle. Although

that ‘‘authorization’’ specified no refills,

Respondent’s memorialization of it lists

one refill. Mr. Sychak in fact treated that

‘‘authorization’’ as if it provided for two

refills, delivering hydrocodone to Mr.

Ray on August 15, and August 22, 1997.

On August 29, 1997, Mr. Sychak refused

to provide drugs based on the blank

prescription from the fictitious Dr. Beck,

but based that refusal on his concern

that DEA investigators might notice that

the handwriting on the filled-out

prescription was the same as that on

other pharmacy records. When Mr. Ray

returned to the pharmacy shortly

thereafter with the same form filled out

75968 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices

for sixty Percocet, however, Mr. Sychak

honored it.

On September 5, 1997, Mr. Sychak

delivered Percocet to Mr. Ray after he

filled out the ‘‘prescription’’ in Mr.

Sychak’s presence, and also provided

Mr. Ray with sixty hydrocodone

pursuant to another fictitious

authorization from Dr. Beck. A week

later, Mr. Sychak again provided

hydrocodone to Mr. Ray pursuant to a

fictitious authorization from Dr. Beck.

b. The Deliveries to Mr. Stepinski

The record establishes that between

January 2, 1997, and April 14, 1998, Mr.

Sychak delivered 2,870 Percocet, 60

Roxicet, 4,310 Didrex 50 mg., and 360

Lorcet 10/650 to Mr. Stepinski using the

names of various Kacyznskis as aliases.

The record also establishes that these

deliveries were made pursuant to

fictitious ‘‘prescriptions’’ and that Mr.

Sychak was aware that these were not

bona fide dispensings.

c. The Deliveries to Lynette Reffner and

Michael Riley

Between July 17, 1997, and December

30, 1997, Respondent delivered to Ms.

Reffner a total of 1,620 dosage units of

Vicodin; 715 dosage units of

hydrocodone; 164 dosage units of

Hydromet syrup; 60 dosage units of

phenobarbital; 1,390 dosage units of

alprazolam; 1,240 dosage unit of ApOxazepam; 130 dosage units of

diazepam; and 100 dosage units of

Darvocet. From 1994 until 1998 Ms.

Reffner and Mr. Riley regularly

purchased Vicodin ES, Xanax, Darvocet,

Soma, and Hydromet syrup from Mr.

Sychak without a prescription or any

other form of physician authorization.

d. The Deliveries to the Ruffners

The record establishes that Mr.

Sychak provided controlled substances

to Ms. Ruffner’s mother in exchange for

physician samples of other drugs,

delivered drugs to Ms. Ruffner and to

her mother pursuant to purported

telephone authorizations he knew to be

fictitious, provided Ms. Ruffner more

refills than the written legitimate

prescriptions authorized, and sold

controlled substances to Ms. Ruffner on

the basis of lists she gave him

containing names of persons and drugs,

without any physician authorization.

Mr. Sychak also provided Mr. Ruffner a

fraudulent prescription vial at the

latter’s request. Respondent unlawfully

delivered controlled substances to the

Ruffners for several years. Between July

1996 and April 1998, Respondent

delivered to the Ruffners 18,031 Vicodin

ES 7.5; 9,165 hydrocodone with APAP

7.5; 8,425 hydrocodone 10 with APAP

650; 2,990 Lorcet 10/650; 2,640

diazepam 10 mg.; 330 Fioricet with

codeine No. 3; 90 Lomotil and Lonox;

4,080 milliliters of Hydromet syrup, and

390 Prelu-2 105 mg. There is no

indication that any of these deliveries

were pursuant to legitimate

prescriptions or other physician

authorizations. Karen Ruffner

additionally received 60 dosage units of

Vicodin ES in March and April of 1993

pursuant to a purported prescription

issued by Dr. Dzialowski. Finally,

during Ms. Ruffner’s undercover visit on

April 24, 1998, Mr. Sychak sold her

generic hydrocodone, without a

prescription and upon her giving him a

list of people and drug names.

e. The Deliveries to Mr. Glaser

Mr. Glaser stated in his February 1999

declaration that he had purchased

Lorcet and other Schedule III controlled

substances from Mr. Sychak since 1993,

and that he paid $3.00 per pill for

Lorcet. The record establishes that

between November 1993, and March

1997 Respondent delivered to Mr.

Glaser a total of 12,030 dosage units of

alprazolam 2 mg.; 360 dosage units of

diazepam 10 mg.; 13,980 dosage units of

Lorcet; 420 dosage units of Vicodin ES

7.5; 60 hydrocodone 7.5 with APAP;

12,080 milliliters of Tussionex

Pennkinetic suspension; 60

phentermine 37.5 mg.; and 240 Xanax 2

mg. It is also noteworthy that

Respondent delivered to Mr. Glaser 300

Vicodin in a six-week period in 1994,

and 240 Xanax in a three-week period

in 1995. Furthermore, as described

above, in the course of the two

undercover visits in September 1998,

less than five months after execution of

the April 24 search warrant, Mr. Sychak

sold Mr. Glaser 1,000 alprazolam; 140

Vicodin; 1,000 Lorcet; and 60 generic

hydrocodone, for a total of $4,000.

Judge Bittner found, and the Deputy

Administrator concurs, that the record

establishes that over a period of about

six years Mr. Sychak sold tens of

thousands of dosage units of controlled

substances without a physician’s

authorization. The record further

establishes that Mr. Sychak knew or

should have known that he was

delivering these medications to persons

who were drug abusers themselves and/

or who were providing the controlled

substances to others who were. Judge

Bittner found, and the Deputy

Administrator concurs, that this factor

weighs in favor of a finding that

Respondent’s continued registration

would be inconsistent with the public

interest.

With regard to factor three,

Respondent’s conviction record relating

to controlled substances, there is no

evidence that either Medicap Pharmacy

or Mr. Sychak has been convicted of

violating any laws relating to controlled

substances at the time of the hearing.

With regard to factor four,

Respondent’s compliance with

applicable laws relating to controlled

substances, the record establishes that

Mr. Sychak delivered tens of thousands

of dosage units of controlled substances

without complying with the statutory

and regulatory provisions discussed

above. Judge Bittner therefore found,

and the Deputy Administrator concurs,

that this factor weighs in favor of a

finding that Respondent’s continued

registration would be inconsistent with

the public interest.

Finally, with regard to the fifth factor,

other conduct that may threaten the

public health and safety, Judge Bittner

found, and the Deputy Administrator

concurs, that Mr. Sychak (1) acquiesced

to Mr. Ruffner’s request to provide a

fraudulent prescription vial; (2)

provided Percocet to Mr. Ray pursuant

to a fictitious prescription that Mr. Ray

filled out in front of him; (3) offered to

bill Ms. Reffner’s phenobarbital to

another patient’s medical insurance; (4)

exchanged controlled substances for

stolen physician samples of other drugs;

(5) continued to fill false prescriptions

after Mr. Werl warned him that they

were fraudulent; (6) misrepresented to

investigators that he had contacted Dr.

Beck to verify a prescription; and (7)

billed insurance carriers for drugs the

policyholders did not receive. Judge

Bittner therefore found, and the Deputy

Administrator concurs, that this factor

weighs in favors of a finding that

Respondent’s continued registration

would be inconsistent with the public

interest.

Judge Bittner found, and the Deputy

Administrator concurs, that it is

abundantly clear that Mr. Sychak has

egregiously abused his privilege to

handle controlled substances. It appears

from the record that Mr. Sychak was

purposefully attempting to engender

addiction through his unauthorized

dispensing of refills, apparently hoping

to profit from the illicit market for

controlled substances he thereby

created. There is no exculpatory

evidence to explain why Mr. Sychak

acted as he did, that he regrets his

actions, or that he will not repeat them

in the future. In these circumstances the

conclusion is appropriate that

Respondent’s continued registration

with DEA would be inconsistent with

the public interest. See SingersAndreini Pharmacy, Inc., 53 FR 4668,

4672 (DEA 1998); Gerald M. Bluestone,

R.Ph., d/b/a Bluestone Drug Store, 56 FR

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Notices 75969

16114, 16116 (DEA 1991); Arthur Sklar,

R.Ph., d/b/a King Pharmacy, 54 FR

34623 (DEA 1989).

Accordingly, the Deputy

Administrator of the Drug Enforcement

Administration, pursuant to the

authority vested in him by 21 U.S.C. 823

and 824 and 28 CFR 0.100(b) and 0.104,

hereby orders that the DEA Certificate of

Registration BM2751736, issued to

Medicap Pharmacy, be, and hereby is,

revoked, and any pending applications

for renewal of such registration be

denied. This order is effective January 4,

2001.

Dated: November 21, 2000.

Julio F. Mercado,

Deputy Administrator.

[FR Doc. 00–30930 Filed 12–4–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Manufacturer of Controlled

Substances; Notice of Registration

By Notice dated August 8, 2000, and

published in the Federal Register on

August 23, 2000, (65 FR 51331), Radian

International LLC, 14050 Summit Drive

#121, P.O. Box 201088, Austin, Texas

78720–1088, made application by

renewal to the Drug Enforcement

Administration (DEA) to be registered as

a bulk manufacturer of the basic classes

of controlled substances listed below:

Drug Schedule

Gamma hydroxybutyric acid

(2010).

I

Thebaine (9333) ........................... II

The firm plans to manufacture small

quantities of the listed controlled

substances to make deuterated and nondeuterated drug reference standards

which will be distributed to analytical

and forensic laboratories for drug testing

programs.

No comments or objections have been

received. DEA has considered the

factors in Title 21, United States code,

section 823(a) and determined that the

registration of Radian International LLC

to manufacture the listed controlled

substances is consistent with the public

interest at this time. DEA has

investigated Radian International LLC

on a regular basis to ensure that the

company’s continued registration is

consistent with the public interest.

These investigations have included

inspection and testing of the company’s

physical security systems, audits of the

company’s records, verification of the

company’s compliance with state and

local laws, and a review of the

company’s background and history.

Therefore, pursuant to 21 U.S.C. 823

and 28 CFR 0.100 and 0.104, the Deputy

Assistant Administrator, Office of

Diversion Control, hereby orders that

the application submitted by the above

firm for registration as a bulk

manufacturer of the basic classes of

controlled substances listed above is

granted.

Dated: November 20, 2000.

John H. King,

Deputy Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration.

[FR Doc. 00–30934 Filed 12–4–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 99–7]

In the Matter of Mary Thomson, M.D.;

Continuation of Registration With

Restrictions

The Deputy Assistant Administrator,

Office of Diversion Control, Drug

Enforcement Administration (DEA),

issued an Order to Show Cause dated

October 30, 1998, to Mary Thomson,

M.D. (Respondent), seeking to revoke

the Respondent’s DEA Certificate of

Registration, BT3320203, pursuant to 21

U.S.C. 824(a)(2) and (4); and deny any

pending application for renewal of such

registration pursuant to 21 U.S.C. 823(f)

because her registration would be

inconsistent with the public interest as

defined by 21 U.S.C. 823(f). Specifically,

the Order to Show Cause alleged that

Respondent (1) became opiate

dependent on Demerol, a Schedule II

Controlled Substance, and received inpatient treatment for chemical

dependency; (2) tested positive for

opiates and benzodiazepines in October

of 1995 and had her hospital privileges

suspended; (3) obtained controlled

substances by fraud or

misrepresentation by issuing

prescriptions for controlled substances

in names of persons for whom such

controlled substances were not intended

and administered the controlled

substances to herself for no legitimate

medical purpose and not in the usual

course of her professional practice; (4)

pled guilty to one felony count of

obtaining controlled substances by fraud

and received three years of probation,

community service, and a fine; and (5)

admitted to using controlled substances

without a legitimate medical purpose

and diverting controlled substances to

her own use. Respondent requested to

hearing in a letter filed November 30,

1998. The requested hearing was held in

Dallas, Texas, on April 6–8, 1999. At the

hearing both parties called witnesses to

testify and introduced documentary

evidence. After the hearing, both parties

submitted Proposed Findings of Fact,

Conclusions of Law, and Argument. On

January 4, 2000, Judge Randall issued

her Opinion and Recommended

Rulings, Findings of Fact, Conclusions

of Law, and Decision, recommending

that Respondent’s registration be

continued, subject to three restrictions.

The Government thereafter filed

Exceptions to Judge Randall’s Opinion

and Recommended Rulings, Findings of

Fact, Conclusions of Law, and Decision;

and Respondent filed Responses to the

Government’s Exceptions, The record

was transmitted to the Deputy

Administrator for final decision

February 16, 2000.

The Deputy Administrator has

considered the record in its entirety,

and pursuant to 21 CFR 1316.67, hereby

issues his final order based upon

findings of fact and conclusions of law

as hereinafter set forth. The Deputy

Administrator adopts the Opinion and

Recommended Rulings, Findings of

Fact, Conclusions of Law, and Decision

of the Administrative Law Judge, but

includes additional restrictions on

Respondent’s continued registration.

His adoption is in no manner

diminished by any recitation of facts,

issues, and conclusions herein, or of any

failure to mention a fact or matter of

law. The Deputy Administrator finds

the following facts especially relevant to

his decision.

Respondent was a practicing

pharmacist from 1980 until 1987.

Respondent has practiced medicine

since 1994, when she completed her

medical education. During the course of

her medical education, Respondent

earned several performance awards,

including ‘‘Resident Physician of the

Month,’’ ‘‘Resident of the Year,’’ and

‘‘Outstanding Third Year Resident.’’

Respondent was employed by St. Mary’s

Hospital from 1994 until she resigned

by letter received May 6, 1996.

Respondent is currently employed as

the sole full time physician for Special

Health Resources of East Texas

(SHRET). SHRET is a non-profit public

organization funded at least in part by

government grants. Respondent works

in three clinics serving a large part of

East Texas and also provides treatment

for HIV patients at the Well Spring

Recovery Center, a center for patients

with HIV and substance abuse

problems. Most of the patients who

avail themselves of SHRET’s services