2986 Federal Register / Vol. 87, No. 12 / Wednesday, January 19, 2022 / Notices 

*A I have made minor, nonsubstantive, 

grammatical changes to the RD and nonsubstantive 

conforming edits. Where I have made substantive 

changes, omitted language for brevity or relevance, 

or where I have added to or modified the Chief 

ALJ’s opinion, I have noted the edits in brackets, 

and I have included specific descriptions of the 

modifications in brackets or in footnotes marked 

with an asterisk and a letter. Within those brackets 

and footnotes, the use of the personal pronoun ‘‘I’’ 

refers to myself—the Administrator. 

*B I have omitted the RD’s discussion of the 

procedural history to avoid repetition with my 

introduction. 

1ALJ Ex. 1. 

2 [Omitted.] 

3 [Omitted.] 

4Allegations brought in the OSC and 

Government’s Prehearing Statements provide 

sufficient notice to the Respondent to defend 

against. Jose G. Zavaleta, M.D., 78 FR 27431, 27439 

(2013) (Where the Government did not allege 

material falsification on the respondent’s 

application in the Order to Show Cause, but did 

raise the issue in its Supplemental Pre-hearing 

Statement, the respondent was on notice that the 

issue would be considered at the hearing). 

5Although in his Posthearing Brief, the 

Respondent suggests the hearing was ‘‘truncated’’, 

there was nothing abbreviated or shortened as to the 

proceeding, which is now over 18 months and 

counting, or as to the hearing. Neither party was 

limited as to their time for presentation or number 

of witnesses. The hearing ended on October 21, 

2020, at 4:30 p.m., with 90 minutes remaining in 

the day. I did inform the parties that we would be 

finishing the hearing within the month of October, 

and to make their arrangements accordingly. 

6See ALJ Ex. 65, Order Granting the 

Government’s Motion for Partial Summary 

Disposition (June 18, 2020). 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 19–26] 

Samson K. Orusa, M.D.; Decision and 

Order 

On May 31, 2019, a former Assistant 

Administrator of the Drug Enforcement 

Administration (hereinafter, DEA or 

Government), issued an Order to Show 

Cause (hereinafter, OSC) to Samson K. 

Orusa (hereinafter, Respondent). 

Administrative Law Judge Exhibit 

(hereinafter, ALJ Ex.) 1, (OSC) at 1. The 

OSC proposed revocation of 

Respondent’s DEA Certificate of 

Registration Number BO4959889 

(hereinafter, registration or COR), the 

denial of any pending applications for 

renewal or modification of such 

registration, and the denial of any 

pending applications for additional DEA 

registrations including the pending 

application for COR Number 

W18070589C pursuant to 21 U.S.C. 

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

Respondent’s continued ‘‘registrations 

are inconsistent with the public 

interest.’’ Id. (citing 21 U.S.C. 823(f)). 

In response to the OSC, Respondent 

timely requested a hearing before an 

Administrative Law Judge. ALJ Ex. 2. 

The hearing in this matter was 

conducted on September 9, 2020, 

October 15, 2020, and October 21, 2020, 

via video teleconference technology. On 

December 8, 2020, Administrative Law 

Judge Mark M. Dowd, (hereinafter, ALJ) 

issued his Recommended Rulings, 

Findings of Fact, Conclusions of Law 

and Decision (hereinafter, 

Recommended Decision or RD) and 

neither party filed exceptions. I issue 

the final order in this case following the 

RD. Having reviewed the entire record, 

I adopt the ALJ’s Recommended 

Decision with minor modifications, as 

noted herein.*A

Recommended Rulings, Findings of 

Fact, Conclusions of Law, and Decision 

of the Administrative Law Judge *B

The Drug Enforcement 

Administration (DEA) Assistant 

Administrator, filed an Order to Show 

Cause (OSC) 1 on May 31, 2019, the 

Certificate of Registration (COR), No. 

BO4959889, of Samson K. Orusa, M.D. 

(Respondent), proposing to revoke the 

Respondent’s COR pursuant to 21 U.S.C. 

824(a)(4) on the ground that the 

Respondent’s registration is inconsistent 

with the public interest, as defined in 21 

U.S.C. 823(f). [Omitted.] 2 3 In its 

Supplemental Pre-hearing Statement 

(GSPHS), the Government further 

alleged that the Respondent made a 

material falsification in his renewal 

application of November 6, 2019, in 

violation of 21 U.S.C. 824(a)(1). ALJ Ex. 

53, 54.4 A hearing was conducted in this 

matter on September 9, 2020, October 

15, 2020, and October 21, 2020, via 

video teleconference technology.5

The issue to be decided by the 

Administrator is whether the record as 

a whole establishes by a preponderance 

of the evidence that the DEA Certificate 

of Registration, No. BO4959889, issued 

to Respondent should be revoked, and 

any pending applications for 

modification or renewal of the existing 

registration should be denied, and any 

pending applications for additional 

registrations should be denied, because 

his continued registration would be 

inconsistent with the public interest 

under 21 U.S.C. 823(f) and 824(a)(4) and 

because he materially falsified his 

application under 21 U.S.C. 824(a)(1). 

After carefully considering the 

testimony elicited at the hearing, the 

admitted exhibits, the arguments of 

counsel, and the record as a whole, I 

have set forth my recommended 

findings of fact and conclusions of law 

below. 

The Allegations 

Overview 

1. The Respondent is registered with 

the DEA as a Practitioner authorized to 

handle controlled substances in 

Schedules II–V under DEA registration 

number BO4959889 at 261 

Stonecrossing Drive, Clarksville, 

Tennessee 37042. His DEA COR 

BO4959889 expired by its terms on 

December 31, 2019. 

2. On July 6, 2018, the Respondent 

submitted an application (Application 

Control No. Wl8070589C) to the DEA for 

a new DEA COR (the ‘‘Application’’). 

This application seeks a new DEA COR 

under his Kentucky medical license at 

316 Pappy Drive, Oak Grove, Kentucky 

42262.6

3. Presently, the Respondent is 

licensed in the State of Tennessee as a 

medical doctor with license number 

28275. The Respondent’s Tennessee 

medical license expires by its own terms 

on March 31, 2020. The Respondent is 

also licensed in the State of Kentucky as 

a physician with license number 33408. 

The Respondent’s Kentucky medical 

license expires by its own terms on 

February 29, 2020. 

4. As a licensed medical doctor in 

Tennessee, the Respondent is subject to 

TENN. CODE ANN. 63–6–6214(b)(12) 

through (14), as those provisions pertain 

to ‘‘dispensing, prescribing, or 

otherwise distributing’’ controlled 

substances. Specifically, section 63–6– 

214(b)(12) prohibits a physician from 

prescribing controlled substances ‘‘not 

in the course of professional practice, or 

not in good faith to relieve pain and 

suffering, or not to cure an ailment, 

physical infirmity or disease, or in 

amounts and/or for durations not 

medically necessary, advisable or 

justified for a diagnosed condition.’’ 

Accordingly, section 63–6–214(b)(13) 

prohibits a physician from prescribing 

controlled substances to a person 

‘‘addicted to the habit of using 

controlled substances ‘‘without’’ making 

a bona fide effort to cure the [patient’s] 

habit.’’ To determine a violation of these 

provisions, the Tennessee Board of 

Medical Examiners uses a nonexhaustive list of guidelines (‘‘the 

guidelines’’) found in TENN. COMP. R. 

& REGS. 0880–02–.14(6)(e). The 

guidelines require that a physician (1) 

take a documented medical history; (2) 

conduct a physical examination; and (3) 

perform an adequate ‘‘assessment and 

consideration of the [patient’s] pain, 

physical and psychological function, 

any history and potential for substance 

abuse, coexisting diseases and 

conditions, and the presence of a 

recognized medical indication for the 

use of a dangerous drug or controlled 

substance.’’ TENN. COMP. R. & REGS. 


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0880–02–.14(6)(e)(3)(i). Additionally, 

Rule 0880–02–.14(6)(e) requires 

physicians to create a ‘‘written 

treatment plan tailored for the 

individual needs of the patient’’ that 

considers the patient’s ‘‘pertinent 

medical history and physical 

examination as well as the need for 

further testing, consultation, referrals, or 

use of other treatment modalities.’’ It 

also requires the physician to ‘‘discuss 

the risks and benefits of the use of 

controlled substances,’’ do a 

‘‘documented periodic review of the 

care . . . at reasonable intervals,’’ and 

‘‘keep [c]omplete and accurate records 

of the care.’’ Id. at 0880–02–.14(e)(3)(ii)– 

(v). 

5. On October 3, 2017, the 

Respondent issued a prescription for 42- 

ten milligram tablets of oxycodone to 

UC, a Tennessee state law enforcement 

officer working in an undercover 

capacity. The Respondent issued this 

prescription following a brief meeting 

with UC, during which he performed a 

cursory and inadequate physical 

examination and reviewed medical 

records which did not justify the 

prescribing of oxycodone in the amount 

and dosage which he prescribed. He 

also failed to: (1) Take an adequate 

medical history; (2) assess the patient’s 

pain, physical and psychological 

function; (3) assess the patient’s history 

and potential for substance abuse, 

coexisting diseases and conditions, and 

the presence of a recognized medical 

indication for the use of oxycodone. The 

Respondent further failed to create a 

legitimate written treatment plan for the 

patient’s individual needs or discuss the 

risks and benefits of the use of 

oxycodone with the patient. 

6. Additionally, on October 18, 2017, 

the Respondent’s office provided UC 

with a prescription which the 

Respondent signed and dated October 

18, 2017, for 84-ten milligram tablets of 

oxycodone. This occurred after UC paid 

$377 for an office visit during which no 

physical examination occurred and 

virtually no medical information was 

obtained or communicated. 

Additionally, on November 20, 2017, 

the Respondent’s office provided UC 

with a prescription which he signed and 

dated November 20, 2017, for 84-ten 

milligram tablets of oxycodone. This 

occurred after UC paid for another office 

visit during which no physical 

examination occurred and no medical 

information was obtained or 

communicated. 

7. With respect to the prescriptions 

the Respondent issued to UC, he issued 

these prescriptions without: (1) Taking 

a medical history or performing a 

minimally sufficient physical 

examination; (2) assessing the patient’s 

pain, physical and psychological 

function; and (3) assessing the patient’s 

history and potential for substance 

abuse, coexisting diseases and 

conditions, and the presence of a 

recognized medical indication for the 

use of oxycodone. The Respondent 

further failed to create and follow a 

legitimate written treatment plan for the 

patient’s individual needs or discuss the 

risks and benefits of the use of 

oxycodone with the patient. Also, by 

falsely indicating that UC was 

physically examined on October 18 and 

November 20 of 2017, he violated 

TENN. COMP. R. & REGS. 0880–02– 

.14(6)(e)(3)(v). 

8. In addition to the medical records 

for UC, medical records for more than 

20 of the Respondent’s patients were 

reviewed by a qualified medical expert 

(‘‘reviewing expert’’) who concluded 

that the Respondent’s continued 

prescribing of controlled substances to 

these patients was without a legitimate 

medical purpose and/or outside the 

usual course of professional practice. 

Below are examples of some of the 

patient records which were reviewed: 

a. Patient M.H.: From August 2014 

through February 2018, the Respondent 

regularly issued prescriptions for large 

quantities of alprazolam, carisoprodol, 

oxycodone, and oxymorphone to M.H. 

A representative sample of those 

prescriptions follows below: 

Date written Drug Dosage 

Quantity 

(number of 

tablets) 

1.3.17 ................................. Alprazolam ............................................................................................................... .5 mg ............ 120 

1.4.17 ................................. Oxycodone ............................................................................................................... 30 mg ........... 84 

1.4.17 ................................. Oxymorphone ........................................................................................................... 15 mg ........... 56 

2.3.17 ................................. Alprazolam ............................................................................................................... .5 mg ............ 112 

2.6.17 ................................. Carisoprodol ............................................................................................................. 350 mg ......... 56 

2.6.17 ................................. Oxycodone ............................................................................................................... 30 mg ........... 84 

2.6.17 ................................. Oxymorphone ........................................................................................................... 15 mg ........... 56 

3.3.17 ................................. Alprazolam ............................................................................................................... .5 mg ............ 112 

3.6.17 ................................. Oxycodone ............................................................................................................... 30 mg ........... 84 

3.6.17 ................................. Carisoprodol ............................................................................................................. 350 mg ......... 56 

3.6.17 ................................. Oxycodone ............................................................................................................... 30 mg ........... 84 

3.6.17 ................................. Oxymorphone ........................................................................................................... 15 mg ........... 56 

4.3.17 ................................. Alprazolam ............................................................................................................... .5 mg ............ 112 

4.4.17 ................................. Carisoprodol ............................................................................................................. 350 mg ......... 56 

4.4.17 ................................. Oxycodone ............................................................................................................... 30 mg ........... 84 

4.4.17 ................................. Oxymorphone ........................................................................................................... 15 mg ........... 56 

According to the reviewing expert, the 

Respondent diagnosed M.H. with 

‘‘chronic pain syndrome’’ even though 

he made no attempt to diagnose a 

specific pain etiology. The reviewing 

expert found that the Respondent failed 

to obtain diagnostic studies and current 

medical records from M.H.’s other 

medical providers and that the results of 

the Respondent’s physical examination 

and medical history did not justify the 

continued prescribing of controlled 

substances. The reviewing expert also 

noted that he ignored a major surgical 

intervention that occurred in September 

2016 as well as an abnormal drug 

screen. As such, the reviewing expert 

concluded that much of the medical 

record for M.H. was fabricated and 

seemed to be copied from records of 

other patients whose records contained 

identically worded assessments. The 

Respondent also documented that the 

patient provided ‘‘informed consent,’’ 

when no informed consent document 

could be located. The expert also found 

that, in some cases, the Respondent 

failed to repeat certain physical exams 

after his initial encounter with M.H., 

despite the fact he provided him with 

prescriptions for controlled substances 

for more than three years. 


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b. Patient C.F.: From August 2014 

through August 2018, the Respondent 

regularly issued prescriptions for 

oxycodone and alprazolam to C.F. A 

representative sample of those 

prescriptions follows below: 

Date written Drug Dosage 

Quantity 

(number of 

tablets) 

1.4.17 ................................. Alprazolam ............................................................................................................... .25 mg .......... 28 

1.6.17 ................................. Oxycodone ............................................................................................................... 15 mg ........... 84 

1.30.17 ............................... Alprazolam ............................................................................................................... .25 mg .......... 28 

2.3.17 ................................. Oxycodone ............................................................................................................... 15 mg ........... 84 

2.3.17 ................................. Oxycodone ............................................................................................................... 7.5 mg .......... 28 

3.1.17 ................................. Alprazolam ............................................................................................................... .25 mg .......... 28 

3.1.17 ................................. Oxycodone ............................................................................................................... 7.5 mg .......... 28 

3.4.17 ................................. Oxycodone ............................................................................................................... 15 mg ........... 84 

3.13.17 ............................... Alprazolam ............................................................................................................... .25 mg .......... 28 

3.14.17 ............................... Oxycodone ............................................................................................................... 15 mg ........... 28 

3.14.17 ............................... Oxycodone ............................................................................................................... 7.5 mg .......... 28 

4.25.17 ............................... Alprazolam ............................................................................................................... .25 mg .......... 28 

4.28.17 ............................... Oxycodone ............................................................................................................... 15 mg ........... 21 

4.28.17 ............................... Oxycodone ............................................................................................................... 7.5mg ............ 7 

5.8.17 ................................. Oxycodone ............................................................................................................... 15 mg ........... 84 

5.8.17 ................................. Oxycodone ............................................................................................................... 7.5 mg .......... 28 

The reviewing expert found that no 

credible physical examination had been 

performed on C.F. and that the exam 

results, as well as medical history, did 

not justify the continued prescribing of 

controlled substances. The expert 

further found that no meaningful 

follow-up physical exam was repeated, 

that supported diagnostic studies were 

not ordered, and that the Respondent 

failed to determine a chronic pain 

etiology. The expert also found that he 

ignored suspicious drug screen results 

which indicated illegal drug use. The 

reviewing expert concluded that much 

of the medical record for C.F. was 

fabricated and seemed to be copied from 

records of other patients whose records 

contained identically worded 

assessments. The Respondent also 

documented that the patient provided 

‘‘informed consent’’ when no informed 

consent document could be located. 

c. Patient M.P.: From September 2016 

through April 2018, the Respondent 

regularly issued prescriptions for large 

quantities of oxycodone and 

oxymorphone to M.P. A representative 

sample of those prescriptions follows 

below: 

Date written Drug Dosage 

Quantity 

(number of 

tablets) 

10.21.16 ............................. Oxycodone ............................................................................................................... 30 mg ........... 84 

10.21.16 ............................. Oxymorphone ........................................................................................................... 7.5 mg .......... 56 

11.18.16 ............................. Oxycodone ............................................................................................................... 30 mg ........... 84 

11.18.16 ............................. Oxymorphone ........................................................................................................... 7.5 mg .......... 56 

12.16.16 ............................. Oxycodone ............................................................................................................... 30 mg ........... 84 

12.16.16 ............................. Oxymorphone ........................................................................................................... 7.5 mg .......... 56 

11.22.17 ............................. Oxycodone ............................................................................................................... 30 mg ........... 84 

11.22.17 ............................. Oxymorphone ........................................................................................................... 7.5 mg .......... 56 

12.18.17 ............................. Oxycodone ............................................................................................................... 30 mg ........... 84 

12.18.17 ............................. Oxymorphone ........................................................................................................... 7.5 mg .......... 56 

1.19.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 84 

1.19.18 ............................... Oxymorphone ........................................................................................................... 7.5 mg .......... 56 

2.16.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 84 

2.16.18 ............................... Oxymorphone ........................................................................................................... 7.5 mg .......... 56 

3.16.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 84 

3.16.18 ............................... Oxymorphone ........................................................................................................... 7.5 mg .......... 56 

The reviewing expert found that he 

failed to request and obtain past medical 

records, he failed to order any 

radiographic studies, and that his 

physical examinations of M.P., 

including follow-up exams, were 

substandard and not credible. The 

expert found that he failed to document 

any evidence to support a pain etiology 

and that he failed to properly address 

M.P.’s substance abuse disorder despite 

the fact that she suffered a heroin 

overdose in his waiting room. As a 

result, the expert found no objective 

findings to justify the continued 

prescribing of oxycodone and 

oxymorphone. The reviewing expert 

also concluded that much of the 

medical record for M.P. was fabricated 

and seemed to be copied from records 

of other patients whose records 

contained identically worded 

assessments. He also documented that 

the patient provided ‘‘informed 

consent’’ when no informed consent 

document could be located. 

d. Patient B.C.: From August 2014 

through August 2018, the Respondent 

regularly issued prescriptions for large 

quantities of oxycodone, oxymorphone, 

alprazolam, and carisoprodol to B.C. A 

representative sample of those 

prescriptions follows below: 


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Date written Drug Dosage 

Quantity 

(number of 

tablets) 

4.10.18 ............................... Alprazolam ............................................................................................................... 1 mg ............. 84 

4.16.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 84 

4.21.18 ............................... Oxymorphone ........................................................................................................... 30 mg ........... 56 

4.27.18 ............................... Alprazolam ............................................................................................................... 1 mg ............. 84 

5.14.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 21 

5.21.18 ............................... Oxymorphone ........................................................................................................... 30 mg ........... 14 

5.22.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 84 

5.26.18 ............................... Oxymorphone ........................................................................................................... 30 mg ........... 56 

6.12.18 ............................... Alprazolam ............................................................................................................... 1 mg ............. 5 

6.12.18 ............................... Alprazolam ............................................................................................................... 1 mg ............. 84 

6.19.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 21 

6.22.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 84 

6.22.18 ............................... Oxymorphone ........................................................................................................... 30 gm ........... 56 

6.22.18 ............................... Carisoprodol ............................................................................................................. 350 mg ......... 56 

7.9.18 ................................. Alprazolam ............................................................................................................... 1 mg ............. 84 

7.25.18 ............................... Carisoprodol ............................................................................................................. 350 mg ......... 56 

7.25.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 84 

7.25.18 ............................... Oxymorphone ........................................................................................................... 30 mg ........... 56 

The reviewing expert found that the 

physical examination and medical 

history did not justify the continued 

prescribing of controlled substances. 

The expert found that he failed to: (1) 

Obtain the patient’s past medical 

records; (2) order radiologic and other 

studies that would support the 

treatment; (3) adequately address the 

fact that B.C. lied about his scheduled 

medications during his initial 

encounter; and (4) pursue a specific 

pain diagnosis. The expert also found 

that he failed to document the patient’s 

response to the medication which he 

prescribed. The reviewing expert also 

concluded that much of the medical 

record for B.C. was fabricated and 

seemed to be copied from records of 

other patients whose records contained 

identically worded assessments. 

e. Patient M.W.: From January 2014 

through August 2018, the Respondent 

regularly issued prescriptions for large 

quantities and dosages of oxycodone, 

oxymorphone, alprazolam, and 

carispoprodol to M.W. A representative 

sample of those prescriptions follows 

below: 

Date written Drug Dosage 

Quantity 

(number of 

tablets) 

4.3.17 ................................. Alprazolam ............................................................................................................... 2 mg ............. 56 

4.4.17 ................................. Carisoprodol ............................................................................................................. 350 mg ......... 28 

4.4.17 ................................. Oxycodone ............................................................................................................... 30 mg ........... 56 

4.4.17 ................................. Oxycodone ............................................................................................................... 15 mg ........... 56 

4.28.17 ............................... Alprazolam ............................................................................................................... 2 mg ............. 56 

5.2.17 ................................. Oxycodone ............................................................................................................... 30 mg ........... 56 

5.26.17 ............................... Alprazolam ............................................................................................................... 2 mg ............. 56 

7.7.17 ................................. Alprazolam ............................................................................................................... 2 mg ............. 56 

7.31.17 ............................... Oxycodone ............................................................................................................... 30 mg ........... 56 

8.4.17 ................................. Alprazolam ............................................................................................................... 2 mg ............. 56 

10.18.17 ............................. Alprazolam ............................................................................................................... 2 mg ............. 56 

12.12.17 ............................. Alprazolam ............................................................................................................... 2 mg ............. 56 

1.19.18 ............................... Alprazolam ............................................................................................................... 2 mg ............. 56 

2.12.18 ............................... Alprazolam ............................................................................................................... 2 mg ............. 56 

3.30.18 ............................... Oxymorphone ........................................................................................................... 15 mg ........... 56 

4.6.18 ................................. Alprazolam ............................................................................................................... 2 mg ............. 56 

4.27.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 28 

4.27.18 ............................... Oxymorphone ........................................................................................................... 15 mg ........... 56 

5.15.18 ............................... Alprazolam ............................................................................................................... 2 mg ............. 56 

5.29.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 28 

5.29.18 ............................... Oxymorphone ........................................................................................................... 15 mg ........... 56 

6.15.18 ............................... Alprazolam ............................................................................................................... 2 mg ............. 56 

7.2.18 ................................. Oxycodone ............................................................................................................... 30 mg ........... 56 

7.2.18 ................................. Oxymorphone ........................................................................................................... 15 mg ........... 56 

8.29.18 ............................... Alprazolam ............................................................................................................... 2 mg ............. 56 

8.29.18 ............................... Oxycodone ............................................................................................................... 30 mg ........... 56 

With respect to M.W., the reviewing 

expert found that the initial physical 

examination and medical history did 

not justify the continued prescribing of 

controlled substances and the 

subsequent physical examinations did 

not meaningfully evidence any chronic 

pain condition. The expert also found 

that he failed to: (1) Order and obtain 

diagnostic studies; and (2) adequately 

address numerous instances in which 

the patient had abnormal drug screens 

indicating possible diversion, abuse, 

and/or use of illegal controlled 

substances. The reviewing expert also 

concluded that much of the medical 

record for M.W. was fabricated and 

seemed to be copied from records of 


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7The surrender is signed by the Respondent 

individually. 

other patients whose records contained 

identically worded assessments. The 

Respondent also documented that the 

patient provided ‘‘informed consent’’ 

when no informed consent document 

could be located. 

9. With respect to the Respondent’s 

treatment of M.H., C.F., M.P., B.C., and 

M.W. (‘‘the five patients’’), the 

prescriptions for controlled substances 

which he issued were not issued in the 

course of professional practice 

inasmuch as he failed to: (1) Take an 

adequate medical history; (2) perform a 

sufficient physical examination; and (3) 

perform an adequate ‘‘assessment and 

consideration of the [patients’] pain, 

physical and psychological function, 

any history and potential for substance 

abuse, coexisting diseases and 

conditions, and the presence of a 

recognized medical indication for the 

use of a dangerous drug or controlled 

substance.’’ The Respondent also failed 

to create a ‘‘written treatment plan 

tailored for the individual needs’’ of 

each of the five patients which 

considered each of the patient’s 

‘‘pertinent medical history and physical 

examination as well as the need for 

further testing, consultation, referrals, or 

use of other treatment modalities.’’ He 

also failed to: (1) ‘‘Discuss the risks and 

benefits of the use of controlled 

substances’’ with patients M.H., C.F., 

M.P., B.C., and M.W.; (2) do a 

‘‘documented periodic review of the[ir] 

care . . . at reasonable intervals in view 

of the individual circumstances’’ of each 

patient; and (3) keep ‘‘[c]omplete and 

accurate records of the care provided.’’ 

As such, his conduct violated TENN. 

CODE ANN. § 63–6–214(b)(12) and 

TENN. COMP. R. & REGS. 0880–02 

.14(6)(e)(3)(i)–(v). 

10. With respect to C.F., M.P., and 

M.W., the Respondent failed to address 

substantial evidence that the patients 

were engaged in abuse and/or diversion 

of controlled substances, a violation of 

TENN. CODE ANN. § 63–6–214(b)(l3). 

11. The prescriptions the Respondent 

issued to UC, M.H., C.F., M.P., B.C., and 

M.W. failed to comply with Tennessee 

state law in that they did not conform 

to accept and prevailing medical 

standards in Tennessee, and thus, were 

issued outside the usual course of 

professional practice. His conduct, 

viewed as a whole, ‘‘completely 

betrayed any semblance of legitimate 

medical treatment.’’ Jack A. Danton, 

D.O., 76 FR 60,900, 60,904 (2011). By 

issuing these prescriptions for 

controlled substances, he failed to take 

reasonable steps to guard against 

diversion of controlled substances. See 

David A. Ruben, M.D., 78 FR 38,363, 

38,382 (2013); Beinvenido Tan, M.D., 76 

FR 17,673, 17,689 (2011); Dewey C. 

Mackay, M.D., 75 FR 49,956, 49,974 

(2010); Physicians Pharmacy, L.L.C., 77 

FR 47,096 (2012). 

12. Even a single act of knowing 

diversion is sufficient for the Agency to 

revoke a registration. See Dewey C. 

Mackay, 75 FR at 49,977. Detailed above 

are numerous acts of alleged unlawful 

prescribing, any one of which could 

independently establish the sort of 

intentional diversion on the part that 

would justify the revocation of his DEA 

registration and the denial of his 

pending application as inconsistent 

with the public interest. See 21 U.S.C. 

824(a)(4), 823(f). 

13. In addition to the legal authorities 

cited above, the following cases and 

Final Orders provide a summary of the 

legal basis for this action: United States 

v. Moore, 423 U.S. 122, 135, 143 (1975); 

Randall L. Wolff, M.D., 77 FR 5,106 

(February 1, 2012); Jack A. Danton, 

D.O., 76 FR 60,900 (September 30, 

2011); Robert F. Hunt, D.O., 75 FR 

49,995 (August 16, 2010); Linda Sue 

Cheek, M.D., 76 FR 66,972 (2011); Kathy 

A. Moral, 69 FR 59,956 (2004); Rebecca 

Sotelo, 70 FR 28,580 (2005); Patrick W. 

Stodola, M.D., 85 FR 20,727 (2009); 

Bob’s Pharmacy and Diabetic Supplies, 

74 FR 19,599 (2009); Nirmal Saran, 

M.D., 73 FR 78,827 (2008). 

14. With regard to the Respondent’s 

application for a new DEA COR in 

Kentucky, there are additional grounds 

for denying his application insofar as he 

lacks state authority to handle 

controlled substances in that state. On 

January 15, 2019, the Commonwealth of 

Kentucky, Board of Medical Licensure, 

issued an Emergency Order of 

Restriction prohibiting him from 

‘‘prescribing, dispensing, or otherwise 

professionally utilizing controlled 

substances.’’ See 201 KY. ADMIN. 

REGS. 9:240 1 and 3. Thus, he is 

currently without authority to handle 

controlled substances in the 

Commonwealth of Kentucky, the state 

in which he has applied for a new DEA 

COR. Consequently, the DEA must deny 

his application for a DEA COR based on 

his lack of authority to handle 

controlled substances in the 

Commonwealth of Kentucky. 21 U.S.C. 

824(a)(3); 21 CFR 1301.37(b). See e.g., 

Kenneth C. Beal, Jr., D.D.S. 83 FR 34,877 

(2018); Mehdi Nikparvarfard, M.D., 83 

FR 14,503 (2018); Leia A. Frickey, M.D., 

82 FR 37,113 (2017); Alaaeldin A. 

Babiker, M.D., 81 FR 50,723 (2016); 

James Dustin Chaney, D.O., 81 FR 

47,416 (2016); Irwin August, D.O., 81 FR 

3,158 (2016); Wayne D. Longmore, M.D., 

77 FR 67,669 (2012); Jovencio L. 

Raneses, M.D., 75 FR 11,563 (2010); 

John B. Freitas, D.O., 74 FR 17,524 

(2009); Worth S. Wilkinson, M.D., 71 FR 

30,173 (2006). 

Material Falsification 

In its Supplemental Prehearing 

Statement, the Government alleged that, 

on November 6, 2019, the Respondent 

made a material falsification on his 

renewal application for his Tennesseebased DEA COR, #59889. Specifically, 

the Government alleged that in response 

to liability question three, the 

Respondent answered ‘‘no’’, which he 

knew or should have known to be a 

false response. GX 26. Liability question 

three queries whether the applicant has 

ever surrendered for cause, or had a 

state professional license or controlled 

substance registration revoked, 

suspended, denied, restricted, or placed 

on probation, or have any such action 

pending. The Government alleged that 

an affirmative answer to Question Three 

would trigger an investigation by a 

diversion investigator whether to issue 

the registration or to deny it. The 

Respondent answered ‘‘No’’ to question 

3. A false ‘‘no’’ answer can result in an 

improperly issued registration. GX 26. 

In support, the Government cites to 

the State of Tennessee Department of 

Health, Notice of Charges and 

Memorandum for Assessment of Civil 

Penalties, see GX 29, an order from the 

Chancery Court for the State of 

Tennessee, 20th Judicial District, 

Davidson County, Part 3, reversing 

Denial of Stay, but Accompanying Stay 

with Conditions. GX 27. The 

Government contends that as of May 

2019, the Conditions preclude the 

Respondent from writing prescriptions 

or providing direct patient care during 

the pendency of the stay. The 

Government also cites an Agreed Order 

with the State of Tennessee, GX 27, in 

which the Respondent was required to 

surrender his Pain Management 

Certificate, a professional license, in 

2018, and prior to his application for 

registration in November, 2019. GX 26; 

GX 28. The Government alleges that, 

although GX 28 related to the surrender 

of the pain clinic license, and GX 26 

was the Respondent’s personal 

application, as the Respondent applied 

for the pain clinic license himself, it 

constitutes a surrender of his own 

license, warranting an affirmative 

response to Question Three of his DEA 

application. GX 26.7

The Hearing 

Government’s Opening Statement 

The Government characterized the 

Respondent as a willing enabler of drug 


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8 [Omitted for privacy.] 

9The Respondent’s written motion to exclude the 

testimony of Dr. Kennedy was carried until the 

Government offered Dr. Kennedy as an expert 

witness at the hearing. Tr. 24–25, 26. The 

Respondent’s Motion to Exclude was denied on its 

merits in conjunction with his objection to having 

Dr. Kennedy qualified as an expert witness. Tr. 201, 

211–12. Contrary to the Respondent’s claims, the 

motion was not denied as untimely. 

*C In this section, I have omitted some 

biographical and investigation-related information 

to protect the identity and methodology of UC. 

10 [Omitted original text in which footnote 

appeared.] 

11He is familiar with the DEA Physician’s 

Manual. Tr. 98. 

12At this point, Government offered Government 

Exhibit 3. The time stamp for the video of the 

October 3, 2017 visit is 5:05:42. Tr. 74. 

13UC noted that he did not present in any 

‘‘unusual way’’ to show that he had a disability, 

limp, change or change his gait. Tr. 46. 

14As discussed supra, UC was asked to bring in 

a discharge summary, which is a report that a pain 

management clinic creates when the clinic releases 

a patient. Tr. 38–39, 108. He ultimately did not 

provide this document to the Respondent’s office, 

stating that he was unable to obtain it. Tr. 39. He 

also stated that did not provide the printout 

showing the last three months of pharmaceutical 

history, because he was unable to get it. Tr. 39–40. 

15No one asked for these records after his visit 

and he never produced the pharmacy records. Tr. 

55. 

abuse and diversion. Tr. 20. Rather than 

maintaining medical records lacking in 

detail, the Respondent’s records, 

although detailed, were fabricated. The 

Government’s expert reviewed twentyfour patient charts and discovered 

identical language throughout. Some 

phrases were repeated more than 100 

times. Undercover 8 will testify that tests 

described in his chart were not 

performed. Test results were repeated 

during three visits in which he was not 

seen by the Respondent. The same 

identical test results were repeated in 

other patient charts. The Government’s 

expert will testify that the Respondent 

prescribed controlled substances 

without a legitimate medical purpose 

and outside the usual course of 

professional practice, on the basis of the 

subject medical charts. He will further 

testify that the charts reveal multiple 

red flags of abuse and diversion, which 

were largely ignored by the Respondent. 

Rather, he created records which were 

deceptive, dishonest, and in some cases, 

dangerous. Tr. 20. 

Respondent’s Opening Statement 

Samson Orusa contends that he is a 

fine physician, who cares deeply about 

his patients. Tr. 24. He spends a lot of 

time getting to know his patients to 

insure he understands their issues 

relating to pain management. His system 

is to use a number of documents, which 

the patients fill out prior to the 

Respondent seeing them, in order to get 

a full picture of each patient. These 

include the initial visit sheet, and a 41- 

page pain management physical exam 

sheet. He would go through these 

documents with the patient 

painstakingly. These forms take hours to 

fill out and to review. 

The undercover agent presented 

himself to the Respondent under false 

colors, under an assumed identity, and 

with an MRI, which the Respondent 

could not confirm. He claimed to be 

from Missouri, a state without a PDMP. 

He reported he had used over-thecounter medications to treat his pain, 

and falsely claimed he had previously 

been prescribed Schedule II controlled 

substances, painting the picture that he 

needed Schedule II pain medications 

from the Respondent. The evidence will 

fail to show that the Respondent has 

done anything outside the bounds of 

normal medical practice. 

Furthermore, the Government’s case 

relies solely on the opinion of its expert, 

Dr. Kennedy, who we maintain is not an 

expert in the field of pain management, 

and whose qualifications are limited to 

family practice. He holds himself out to 

be a diplomat with the American 

Academy of Pain Management, which is 

a defunct organization. He has never 

completed a fellowship in pain 

management. He is not board-certified 

in pain management, and would not be 

qualified in the State of Tennessee to be 

a medical director of a pain clinic. The 

Respondent maintains Dr. Kennedy’s 

opinion testimony should be afforded 

no weight in these proceedings.9 Tr. 24 

Government’s Case-in-Chief 

The Government presented its casein-chief through the testimony of four 

witnesses. First, the Government 

presented UC. Secondly, the 

Government presented the testimony of 

Dr. Gene Kennedy. Thirdly, the 

Government presented the testimony of 

a DEA Special Agent assigned to this 

matter. Finally, the Government 

presented testimony of a DEA Diversion 

Investigator assigned to this matter. 

Undercover 

[UC testified regarding his education, 

credentials, and employment 

background with the Tennessee Bureau 

of Investigation].*C He has conducted 

approximately twenty to thirty 

investigations as the lead case agent in 

cases involving allegations of fraud, 

physicians prescribing narcotics 

without medical necessity, and 

physicians prescribing outside the scope 

of processional practice. Tr. 31–32. 

[Omitted.] 10 He provided lower back 

pain as a false symptom in this case, 

specifically because he has ‘‘absolutely 

no back pain whatsoever.’’ Tr. 112–11. 

Undercover was contacted by a 

Special Agent (SA) with the United 

States Department of Health, Office of 

Inspector General (SA–DOH) who asked 

him to make an appointment with the 

Respondent in the late summer of 2017. 

Tr. 34; 98.11 The initial goal in these 

types of cases is to get an appointment 

to see the doctor. Tr. 34. The ultimate 

goal is to see if the physician will write 

the undercover agent a prescription for 

a controlled substance. Tr. 34, 101. 

In this particular investigation, UC 

contacted the Respondent’s office and 

spoke with the receptionist over the 

phone, who told him that he would be 

scheduled for a new patient visit and 

was required to bring certain items on 

that day including; (1) an MRI report, (2) 

the last three chart notes from a 

previous physician, (3) the discharge 

summary from his previous pain 

management clinic, and (4) a printout of 

the last three months from his 

pharmacy. Tr. 35. UC already had some 

of the items, such as the MRI report, but 

there were other items he needed to put 

together. Tr. 34–35. The MRI that UC 

had was authentic, as it was his actual 

MRI that was performed on September 

2, 2016. Tr. 35–37, 106. The only thing 

he altered was the ordering physician 

and patient name of ‘‘Chris Rutledge.’’ 

Tr. 35–37. 

The patient records that he presented 

to the Respondent were fabricated. Tr. 

37–38. DOH–SA and another SA 

consulted with a nurse practitioner who 

worked for TBI and instructed the 

agents to generate medical records that 

would be indicative of someone who 

was seeing a nurse practitioner for pain. 

Tr. 38, 108; GX 6. UC then provided his 

personal information including his date 

of birth and his medical complaints for 

the agent to create a medical record. The 

only medical record provided to the 

Respondent’s office was signed by 

‘‘S.C.,’’ who was not practicing 

medicine at that time. Tr. 38, 133. 

UC visited the Respondent’s office on 

October 3, 2017, and recorded video and 

audio of the visit. Tr. 40; 42–43.12 He set 

up an appointment for 8:00 a.m. and 

was told to bring the necessary 

documents. Tr. 40. UC showed up for 

the appointment at approximately 8:00 

a.m.13 and gave the documents he had 

to the receptionist, and explained why 

he was missing two documents.14 Tr. 

38–40, 108; GX 4.15 The receptionist 

gave him about twenty pages of 

paperwork and asked him to sit in the 

waiting room to fill it out. At some point 

he was called up by one of the 


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16At this point in the testimony, Judge Dowd 

stated that UC was not allowed to read from his 

report directly. UC clarified that although he ‘‘did 

have it open,’’ he had not ‘‘looked at it yet.’’ Tr. 41. 17At this point in the testimony, the Government 

played a video. Tr. 51; GX 4. Judge Dowd instructed 

the court reporter not to transcribe the audio of the 

video, as the recording itself is the best evidence. 

UC confirmed that the transcript of the proceedings 

was a fair and accurate representation of the 

recording. Tr. 55; GX 4. 18UC had noted that he may have stated that he 

did not sleep well because he was awakened by his 

pain. 19UC noted that there were several forms that 

were blank in the copies he had. 

20 In fact, a physician had previously told UC that 

he may have arthritis, UC was not given a diagnosis 

of degenerative disk disease. Tr. 106–107. 

21At this point in the testimony, on crossexamination, the Respondent’s counsel made a 

comparison to an undercover agent purchasing 

heroin from a dealer and the Tribunal inquired of 

the Respondent’s counsel as to the relevance of his 

questioning. Tr. 121. The Respondent’s counsel 

asserted that UC had lied to the Respondent to 

achieve his goal of getting a prescription. Tr. 121. 

The Tribunal asserted that ‘‘in principle this is an 

undercover operation. [That is] the whole point of 

it.’’ Tr. 122. 

22UC confirmed that this Government Exhibit 18 

was a fair and accurate copy of the prescription he 

received on October 3, 2017. 

23UC asserted that he did not expect to get 

controlled substances on this first visit, as he 

usually does not expect to get them, but from what 

he had ‘‘been told regarding the clinic, it [did not] 

shock him.’’ Tr. 125. If he had not received 

prescriptions that first visit, it would not have 

deterred him from making future appointments as 

it usually takes several appointments to build up to 

the point where the undercover agent receives 

controlled substances. Tr. 125. There is no set 

number for visits, but in cases where he has been 

the case agent, he has looked for a progression from 

other modalities of treatment first being offered and 

then elevating to drugs like hydrocodone to 

oxycodone, elevating the dosage or the quantities 

over time. Tr. 126–27. 

24UC stated that Government Exhibit 4 is a 

transcript of his interaction with the Respondent on 

that date and is a fair and accurate representation 

of their encounter. Tr. 60; GX 4 at 4. The transcript 

reflects that the video was difficult to hear. The 

Respondent’s counsel objected to the video being 

put into evidence if the video could not be properly 

played before the Tribunal. Tr. 64–66. The Tribunal 

noted the objection and allowed the Government’s 

counsel to proceed. The video was replayed and UC 

asserted that he was able to hear the tape. The 

Tribunal overruled the objection and noted that the 

Respondent’s counsel could cross examine UC. The 

Government later moved Government Exhibits 4 

and 17 into the record. Tr. 69. The Tribunal 

admitted pages 1, 2, and 3 of Exhibit 4 and part of 

Government Exhibit 17, but noted that it was ‘‘not 

convinced that [the] audio is intelligible, fully 

audible, without interference, because [it] ha[s] 

nothing but interference’’ on the Tribunal’s end. Tr. 

70. On Day 3 of the hearing, the Tribunal 

reconsidered its earlier ruling on the limited 

admissibility of GX 4 and 17, and admitted the 

exhibits in their entirety, noting that the video/ 

audio (GX 4) was played successfully at the hearing 

to all participants, except the Tribunal and court 

employees 16 who made a comment 

about one of the pages in UC’s medical 

record appeared to be ‘‘whited out’’ and 

the employee then made a statement 

that there are ‘‘people that are trying to 

bring down [the Respondent]’’ and the 

Respondent would therefore ‘‘be 

reluctant to write any medications.’’ Tr. 

41; GX 3. The receptionist then told UC 

to have a seat and he would be called 

back for triage to get his vitals. Tr. 41– 

42, 44. UC paid for this visit with $311 

of cash. Tr. 49, 110.17

UC filled out a pain disability index 

and ranked his pain level as a nine out 

of ten, which was not a truthful 

response to how he felt at the time. Tr. 

47, 101, 109–10, 123. As to his goals, his 

second goal was to ‘‘sleep through the 

night’’ but he did not check the box for 

insomnia. Tr. 134–35, 139. Despite this 

contradiction, no one in the office asked 

about this. Tr. 139.18 He also filled out 

a Zung Self-Rating Depression Scale, 

selecting random answers. Tr. 102. He 

also filled out a drug use questionnaire 

regarding his drug history with the 

intention of presenting a picture of a 

person who is in pain. Tr.102–03. He 

also filled out an agreement for opioid 

maintenance therapy and for cancer and 

non-cancer patients. Tr. 103. He also 

filled out an American Chronic Pain 

Association form including a chronic 

problem list and reported that he was 

only taking Advil, an over-the-counter, 

anti-inflammatory and pain medication 

of three pills, three times a day, with the 

understanding that if he was performing 

well with the over-the-counter 

medicine, a doctor would likely not give 

him a prescription. Tr. 103–105, 123. He 

also filled out a multi-page pain 

management physical form, which was 

blank 19 in his seized medical record. Tr. 

105, 128. He could not recall if the 

Respondent went through every form 

with him, but did remember the 

Respondent asking him a couple 

questions. Tr. 105. He also recalled 

telling the Respondent that he had taken 

prescription hydrocodone in the past 

and it had helped him. Tr. 123. 

At one point, a female wearing scrubs 

took his blood pressure, asked about his 

weight, provided him a specimen cup, 

and instructed him to go into the 

bathroom located inside the waiting 

room. Tr. 44–45. UC then produced a 

urine sample. Tr. 45. 

The time that passed from when UC 

spoke with the employee about his 

‘‘fabricated’’ records with the ‘‘whiteout’’ page until he met with the 

Respondent, was about seven hours, 

only leaving the office for 

approximately forty-five minutes to get 

lunch. Tr. 48–49, 100. 

[Omitted to protect law enforcement 

techniques]. UC told the Respondent 

where his pain was located and if it hurt 

he would respond that he had pain in 

that area, but did not make any face or 

wince. There was less than sixty 

seconds of any kind of physical 

touching between himself and the 

Respondent, which he testified was 

brief compared with other physicians. 

The Respondent asked what his 

previous diagnosis was and he 

responded with arthritis and 

degenerative disk disease. Tr. 105–06.20

During this visit, UC learned that the 

office staff had tried to contact his 

pharmacy and was unable to do so. Tr. 

108–09. UC explained to the 

Respondent that he would try to get a 

hold of them and the Respondent’s 

stated that his office would make 

another attempt. Tr. 109. They also 

discussed the alternative treatment of 

injections for UC’s back pain, but UC 

refused to get the injections. Tr. 117, 

127. UC told the Respondent that he had 

fallen off a truck sometime in 2013, was 

seeing Dr. Chapman in Pierce City, 

Missouri, and he moved to Tennessee 

about one month prior to his first visit 

on October 3, 2017. Tr. 117–18. None of 

these statements were true. Tr. 117–18. 

UC also shared a story about his aunt 

breaking her hip and him going to the 

clinic to obtain records, that he was 

unable to do so because the clinic was 

shut down, and that his aunt still lived 

in Missouri. Tr. 118. None of these 

statements were true. Tr. 118. UC 

admitted that he stated all of these lies 

in order to achieve his stated goal to get 

a prescription from this visit and also 

noted that ‘‘[u]ndercover operations 

inherently rely upon some falsehoods in 

all aspects of law enforcement.’’ Tr. 

119–21.21

He received a prescription for 42 

oxycodone 10-milligram tablets, thirty 

minutes after he left the exam room, 

from one of the receptionists, despite 

not asking for oxycodone. Tr. 56–57; GX 

18. He also received prescriptions for 

Meloxicam and flexeril. Tr. 57–58; GX 

18.22 He filled the oxycodone 

prescription, but not the other 

prescriptions. Tr. 57, 58.23

UC went back to the office for a 

second visit on October 15, 2017, which 

was supposed to be his well-care visit 

between receiving his two narcotic 

prescriptions. Tr. 58–59. He did not 

make an appointment. He showed up at 

the office, and made a $25 payment to 

the receptionist. Tr. 59. He was called 

back to the triage room where the nurse 

asked him his weight, to which he 

replied, ‘‘210,’’ and if his blood pressure 

was ok, to which he responded, ‘‘yes.’’ 

The nurse then directed him back to the 

waiting room. He was later called to the 

exam room. 

This visit was recorded in the same 

manner as the visit on October 3, 2017. 

Tr. 59–60; GX 4 at 4.24 When he entered 


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reporter, which the Tribunal attributed to a VTC 

issue and not to a defect in the DVD itself. [I have 

reviewed the contents of the DVD and find that the 

videos play successfully.] 

*D The Government did not fully explain this 

portion of its case which I find to be immaterial. 

Ultimately, inconsistent UDS results were not 

relevant to Dr. Kennedy’s opinion that the 

prescriptions issued to UC were issued outside of 

the standard of care nor were they relevant to my 

findings in this decision. 

25Although the Respondent objected to 

Government Exhibit 3 being offered into evidence 

based on hearsay, the Tribunal overruled the 

objection finding that any hearsay statements in this 

exhibit have been properly authenticated. Tr. 94. 

The Tribunal also noted that UC could be crossexamined regarding his report. 

26UC noted in the Patient Pain History form that 

he had previous medications including 

hydrocodone between November 2016 and 

September 2017, Xanax from approximately August 

16, 2016 through September 2017, and oxycodone 

from August 2017 to September 2017. 

27Although not dispositive in this setting, Dr. 

Kennedy’s credentials would not permit him to be 

a director of a pain clinic in Tennessee, without 

annually consulting with a board certified pain 

management specialist. Tr. 204–05, 428–30. 

the room, the Respondent asked if it was 

UC’s first well visit or primary care visit 

and UC affirmed it was. Tr. 71. The 

Respondent asked if UC was taking 

other medications and he stated that he 

was not taking medications other than 

pain medications. The Respondent 

asked whether UC was sleeping well 

and he responded ‘‘not really.’’ The 

Respondent then stated that he would 

write him a prescription for pain 

medications to help him sleep. UC 

asked what it was, and the Respondent 

stated, ‘‘amitriptyline.’’ That marked the 

end of the encounter. Tr. 71. There was 

no further medical examination or 

physical examination of his lower back, 

of any of his extremities, or an 

examination to determine if he had 

muscle pain. Tr. 71–72. 

UC had a third visit on October 18, 

2017, when he was scheduled to get the 

refills for his narcotic medications. Tr. 

75. He went to the Respondent’s office 

and first attempted to pay with cash, but 

had to secure a debit card. Tr. 75–76. He 

wrote his name on a clipboard, paid the 

$377 fee for the office visit, and about 

an hour later his name was called and 

he got his prescription. Tr. 76. He was 

at the clinic for approximately two and 

half hours and was not examined by any 

medical personnel nor did he provide 

any medical records. Tr. 77. He received 

a prescription for eighty-four tablets of 

ten milligrams of oxycodone. Tr. 78, GX 

18 at 3, 4. This dosage was less than the 

Lortab of four times a day. He also 

received the ‘‘euphoria drug’’ of Xanax 

that he had falsely claimed he was 

receiving in Missouri. Tr. 112. 

Upon reviewing the medical records, 

UC noted that despite his records stating 

that ‘‘Mr. Rutledge . . . has had a 

history of insomnia and anxiety for 

several years,’’ he did not report anxiety 

symptoms of shortness of breath, of 

having palpitations, sweating, dizziness, 

or shaking. Tr. 79–80; GX 5. The 

medical record also reflects that he had 

a headache that day, despite the fact 

that UC did not report having a 

headache, dizziness, nausea, or 

vomiting. Tr. 80; GX 5. No one 

questioned UC as to whether he had 

abdominal pain, diarrhea, and 

constipation. Tr. 80–81. UC reviewed 

Government Exhibit 5 and noted that he 

was not asked about any of these 

symptoms. Tr. 81. He also assumes that 

the office accessed and checked the 

Tennessee controlled substance data 

bank on his first visit as this was in his 

medical records, but he was not 

specifically informed of it. Tr. 110. He 

also believes that the UC’s assumed 

identity has never had a controlled 

substance filled in Tennessee. Tr. 111. 

He also believes there was no Missouri 

prescription database at that time, 

where he asserted he was from, so the 

office could not obtain information from 

there. And the fact that Missouri did not 

have a state-controlled prescription 

monitoring program in Missouri was a 

factor as to why the persona of UC’s 

assumed identity was somebody from 

Missouri. Tr. 110–11. 

At the appointment on October 17, 

2017, UC did not have his blood 

pressure checked, was not weighed, did 

not have his chest examined, and did 

not have his breathing measured or 

evaluated. Tr. 82. On October 18, 2017, 

UC did not discuss muscle pain, back 

pain, nor a Review of Systems (ROS). 

Tr. 82–83. No one examined his chest, 

or his breathing. Tr. 83. 

UC had another visit on November 15, 

2017, which was another well-visit. Tr. 

84. He paid $25, waited for some time, 

was called back and asked about his 

weight and if his blood pressure was 

okay. He specifically asked the nurse if 

he was dismissed and after she said yes, 

he left. He did not receive any 

prescriptions that day. Tr. 85. Despite 

what the medical records say regarding 

this visit, there was no medical 

examination conducted on that day, 

including of his chest, or breathing. Tr. 

86, 90; GX 5. 

UC had another visit on November 20, 

2017, for a medication visit. Tr. 87; GX 

at 10. UC walked in, put his name on 

a clip board, paid some money, waited 

a certain amount of time for his name 

to be called, and went to the window to 

obtain his prescriptions. Tr. 88. On this 

particular day, he was asked to provide 

a urine sample. Tr. 88, 92. He received 

a cup from the nurse, went into the 

bathroom for his unsupervised urine 

test, and provided a urine sample. He 

had brought a vial of a substance that 

would cause him to test positive for 

Oxycodone, put that in the urine 

sample, and returned the sample to the 

nurse as instructed. Tr. 88, 92; GX 3. He 

believes that, despite the added 

substance, his urine drug screen came 

back negative *D and the Respondent 

never discussed this screen with UC nor 

did anyone else at the practice. Tr. 91– 

92; GX 3.25 He received a prescription 

for oxycodone for eighty-four tablets of 

ten milligrams from one of the 

receptionists, who provided the 

prescription to him as well as several 

others. Tr. 89. GX 18 at 4. UC did not 

meet with the Respondent that day. The 

medical records say ROS, but none of 

the systems were examined during this 

visit. Tr. 91. 

Besides verbalizing and writing down 

that his pain was nine out of ten, UC did 

not do anything to indicate that his pain 

was actually that level. Tr. 94–95; GX 3, 

18. He did not present any falsified 

records showing he had a history of 

filling controlled substance 

prescriptions in any state 26 and never 

produced pharmacy records showing 

his prescription history. Tr. 133. In UC’s 

experience of working with people who 

abuse drugs or obtain drugs to sell them, 

he has found that these people are 

pretty savvy about filling out their forms 

when they go to the doctor. Tr. 133–34. 

Dr. Gene Kennedy 

Dr. Kennedy, who is licensed in 

Georgia, is a family practitioner by 

training and has treated patients for 

pain since being licensed. Tr. 202. Dr. 

Kennedy was offered, and qualified, as 

an expert in the field of pain 

management. Tr. 201, 211–12, 216. 

Although not board certified in pain 

management, he has been treating 

people for pain full-time since 2004 or 

2005, when he opened his own pain 

management clinic. Tr. 178–80, 202–03, 

427.27 He has treated all types of pain 

patients: Patients suffering acute postsurgical pain; patients suffering from 

back pain; cancer patients; and patients 

referred by other pain management 

physicians. Tr. 180–81, 355. He has 

prescribed assorted controlled 

substances, including opioids to treat 

pain, including Schedule I. Tr. 181. He 

treats patients over 120 MME. He noted 

only UC and C.F. were being treated 

below 120 MME. Tr. 427–28. He has 


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*E Dr. Kennedy testified that an adequate back 

exam would have required Respondent to look ‘‘for 

something that is out of place, muscle spasms, . . . 

perform lumbar range of motion maneuvers where 

the patient essentially bends at the waist in various 

directions. Additionally, . . . a straight leg raised 

test, . . . neurologic exam, which makes comment 

on their motor deficits and their sensorium as 

pertains to their complaint of low back pain.’’ 

prescribed benzodiazepines. He 

performs pain injections. Tr. 357. 

He has previously been qualified as 

an expert witness in administrative 

hearings of the Alabama Medical Board, 

the Georgia Medical Board, DEA, FBI 

and DOJ. On thirteen occasions he has 

testified regarding whether a physician 

has properly prescribed controlled 

substances. GX 24. He has served as an 

adjunct lecturer regarding the proper 

prescribing of controlled substances to 

DEA, at the National Advocacy Center, 

and on behalf of the DOJ. Tr. 185. He 

estimated over half of his income comes 

from the work and lectures given to 

Government agencies. Tr. 359. In 2018, 

he estimates he was paid over $100,000 

by the Government. Tr. 432. For the 

instant case, he is being paid $450 per 

hour for an estimated forty hours of 

preparation plus courtroom hours. Tr. 

434–36. He has also lectured regarding 

the PDMP to medical residents and 

physicians and taught a course to 

pharmacists in Tennessee regarding 

legitimate prescribing. Tr. 185. He is 

familiar with Tennessee law pertaining 

to prescribing controlled substances, 

and has relied on the following sources 

in developing his opinions herein: 

Tennessee Pain Clinic Guidelines, the 

Federation of State Model Policy, AMA 

Guidelines, the DEA Practitioner’s 

Manual. Tr. 183, 360–62. He was hired 

by the DEA to offer an expert opinion 

on the Respondent’s prescribing and of 

the medical practice, on the basis of 

material the government provided him. 

This material included approximately 

twenty charts, surveillance videos, and 

pharmacy reports. The surveillance 

videos involved undercover encounters 

between UC and the Respondent. Tr. 

184; GX 8–23. 

Dr. Kennedy is familiar with the 

standard of care for a physician 

prescribing controlled substances in 

Tennessee. This standard requires an 

adequate medical history, including all 

the historical information helpful in 

developing a diagnosis, course of 

treatment and in understanding the 

risks involved. Tr. 189, 195. The 

standard requires diagnostic testing, if 

indicated. Tr. 196. The standard 

requires the physician to perform a 

physical exam. Tr. 190, 200–01. The 

standard requires a physician to 

maintain medical records for patients to 

whom controlled substances are 

prescribed. Tr. 196. These medical 

records should contain a pain history, a 

history of drug abuse and termination 

by other physicians, a physical exam 

pertinent to the patient’s complaint, 

efforts at obtaining state pharmacy 

reports, the physician’s thoughtful 

assessment of the patient’s condition, 

and an individualized treatment plan. 

Tr. 196–98. Dr. Kennedy noted the 

importance of maintaining complete 

and accurate patient records. Tr. 353. 

With patients sometimes on high doses 

of potentially dangerous controlled 

substances, the charts must be accurate 

and honest, so any practitioner who 

views the charts can make an accurate 

assessment of the patient’s conditions. 

Tr. 353–54. 

In reviewing the subject medical 

records, Dr. Kennedy recognized 

indications of possible abuse and 

diversion, including patients unable to 

produce past medical records, a cloudy 

history of drug abuse. Tr. 191–92. Dr. 

Kennedy noted that the Tennessee 

standard precludes a physician from 

prescribing controlled substances to a 

patient with a habit of improperly using 

them, without first making a bona fide 

effort to cure the patient’s addiction. Tr. 

199. When a benzodiazepine and an 

opioid are prescribed in combination, 

the physician would have a heightened 

sense of vigilance, which would need to 

be documented within the chart. Tr. 

190. Urine drug screening (UDS) is a 

common practice in pain management 

treatment. Tr. 192. It can reveal whether 

a patient is taking a medication he is 

prescribed and whether he is taking 

medications or illegal drugs he is not 

prescribed. Tr. 193–94. The standard of 

care would require, at minimum, that 

the physician document in the records 

the inconsistent UDS, and describe his 

plan of action. Tr. 194–95. 

Dr. Kennedy reviewed the chart and 

the undercover videos for Patient UC, 

who was the undercover agent. Tr. 216– 

17, 363; GX 6. Dr. Kennedy 

acknowledged that in scheduling the 

first visit, the Respondent’s staff 

instructed UC to bring certain medical 

records to his first visit: The previous 

three physician notes, his discharge 

summary, the record of the previous 

three months prescriptions and an MRI, 

an appropriate protocol in Dr. 

Kennedy’s opinion. Tr. 364–65; GX 3 at 

1. Dr. Kennedy did not believe the 

medical chart justified the prescribing of 

controlled substances. Tr. 230–31, 240; 

GX 18 at 1, 3. Although an actual MRI 

report of UC, Dr. Kennedy found the 

MRI report internally inconsistent, 

which did not justify controlled 

substance medication. Tr. 387–94, 483– 

86. UC was being treated for complaints 

of back pain. However, Dr. Kennedy 

opined that the physical exam detailed 

in the chart was not sufficient under 

Tennessee standards, and the exam 

performed revealed a normal back.*E Tr. 

217, 231, 237, 396–97, 440. On rebuttal, 

Dr. Kennedy reiterated this assessment 

after listening to the Respondent’s 

explanation. Tr. 651–52. After filling out 

extensive paperwork, the initial 

examination by the Respondent 

consisted of observing the UC, touching 

his back and causing the patient to lift 

his leg. Tr. 217–18, 359–60; GX 6 at 6. 

Dr. Kennedy did not believe UC’s chart 

reflected the Respondent maintained a 

truthful and accurate record of the 

treatment. Tr. 232; GX 3; 4. Dr. Kennedy 

noted the taking of vital signs and a 

general exam within the chart, however 

he observed that from viewing the video 

of this visit, such exam was not 

performed as described, or not 

performed at all. Tr. 218–19, 232–33, 

379–81; GX 6 at 4. The prior medical 

history reported by UC, was facially 

suspicious and constituted a red flag. 

Tr. 238. UC reportedly, came from a 

clinic, which has since shut down, and 

provided medical records from a Nurse 

Practitioner, whose license has been 

suspended. Tr. 238. Dr. Kennedy opined 

that UC’s obfuscation, false and 

misleading statements to the 

Respondent and staff, did not relieve the 

Respondent’s obligation to investigate 

any suspicious circumstances. Tr. 375– 

78, 382. 

Dr. Kennedy noted that the physical 

exam included in this first visit by UC 

was repeated verbatim in most of the 20 

or so charts he reviewed. Tr. 220; GX 7 

at 65 (M.B.), GX 9 at 69 (M.W.). Dr. 

Kennedy noted UC’s chart identified 

him with a ‘‘long-standing history of 

insomnia and anxiety,’’ however the 

chart contained no examination, which 

would support such findings. Tr. 233– 

34; GX 5 at 4. Additionally, the reported 

symptoms of the anxiety finding, 

‘‘palpitations, sweating, dizziness, 

shaking’’ was repeated almost 

universally throughout the medical 

records reviewed as to patients 

diagnosed with insomnia and anxiety. 

Tr. 233–34. Although UC reported his 

pain level at 9 or 10, the exam results 

do not support that, nor did the video 

of this encounter. Tr. 234–35, 238. 

Similarly, the visit of October 17, 2017, 

by UC contains extensive medical 

findings, although the video of that visit 

does not support those findings. Tr. 

235–37; GX 5 at 5. The video does 

reveal the Respondent asking UC, ‘‘how 

is your sleep,’’ to which UC responds, 

‘‘not good.’’ Tr. 236. The Respondent 


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*F Dr. Kennedy actually offered several bases for 

his opinion that all of the controlled substances 

Respondent prescribed to C.R. were issued outside 

the usual course of professional practice. Tr. 239. 

Specifically, Dr. Kennedy identified Respondent’s 

failures to perform a sufficient physical 

examination; to adequately assess the patient’s 

pain, physical, and psychological function; to 

sufficiently examine the patient’s history; to assess 

a recognized medical indication for the use of 

oxycodone; to create or follow a legitimate written 

treatment plan; to discuss the risks and benefits of 

using oxycodone with the patient; to maintain 

truthful and accurate medical records; or to resolve 

red flags arising from the medical records C.R. 

provided, which stated that C.R. had been treated 

at a clinic that had closed by a nurse practitioner, 

whose license had been suspended. Tr. 237–39. 

*G For example, regarding the UDS at GX 9, 2– 

4, M.W. was prescribed oxycodone, carisoprodol, 

alprazolam, and ozymorphone. GX 9, 2–4. The drug 

screen results were negative for the prescribed 

drugs alprazolam and carisoprodol and, as Dr. 

Kennedy testified, positive for non-prescribed 

substances including ‘‘morphine, positive for 

hydromorphone, positive for oxymorphone, . . . 

positive for THC. . . .’’ Tr. 251–52. 

*H Dr. Kennedy testified that the little 

documentation there was suggesting a physical 

exam could have been performed was ‘‘not 

credible’’ because it was ‘‘repeated documentation 

that we have described before.’’ Tr. 262. 

*ISpecifically, Dr. Kennedy testified that 

Respondent failed: To perform a sufficient physical 

examination; to adequately assess the patient’s 

pain, physical, and psychological function; to 

sufficiently examine the patient’s history and 

potential for substance abuse; to identify a 

recognized medical indication for the use of the 

controlled substance prescriptions; to create or 

follow a legitimate written treatment plan; and to 

adequately address M.W.’s exhibited evidence of 

drug abuse. Tr. 264–66. 

then prescribed Elavil, also called 

amitriptyline. Tr. 236. Dr. Kennedy 

made a similar observation as to 

extensive medical findings on 

subsequent visits, in which UC was not 

seen by the Respondent. Tr. 235–37; GX 

5 at 3–5. Although the medical records 

reflect physical examination took place 

at the level one visits, the Respondent 

explained that it was permissible in 

medical record-keeping to carry forward 

results from prior examinations to later 

visit records, with new findings added. 

Tr. 623–28. Dr. Kennedy disagreed, 

noting that it is never permissible for 

charts to reflect examination results, 

when no exam occurred. Tr. 652–53. 

On the basis of the deficient physical 

exam, Dr. Kennedy opined that 

prescribing controlled substances to UC 

was not justified.*F Although the 

Respondent prescribed a much lower 

MME than UC had purportedly been on 

previously, it was not consistent with 

the Tennessee standard, which would 

include observation, looking for spasms, 

lumbar range of motion maneuvers, 

straight leg raise test, neurologic exam 

and motor deficits. Tr. 221–25, 239, 

382–83; GX 5 at 6. Other deficiencies in 

the records that caused the controlled 

substance prescriptions for UC to be 

unjustified included the deficiency in 

the prior medical records provided by 

UC Tr. 228. UC’s chart revealed an 

exploration of alternate treatment, by 

prescribing Meloxicam. Tr. 228–29. 

However, UC’s chart did not include an 

adequate treatment plan. Tr. 229. The 

records reveal a deficient discussion 

regarding the risks and benefits of 

controlled substance medication. Tr. 

231. Dr. Kennedy deemed the diagnosis 

of degenerative disc disease unjustified 

on the basis of the chart and MRI. Tr. 

240–42; GX 5 at 2, 6; GX 6 at 12. 

Dr. Kennedy prepared reports or 

charts containing his review of the 

relevant medical evidence in this case. 

His findings accurately reflect the 

original medical records, which are in 

evidence. His chart was admitted as a 

chart of voluminous records under Fed. 

R. Evid. 1006. Tr. 225–28; GX 6 at 2. 

Patient M.W. 

Dr. Kennedy identified his ‘‘chart 

review’’ for M.W. Tr. 243–44; GX 9, 10. 

M.W. was diagnosed with low back 

pain, yet Dr. Kennedy opined that the 

records did not support such diagnosis. 

Tr. 245–46; GX 9 at 14; GX 10 at 3. The 

notes did reference back to M.W.’s 

initial encounter. Tr. 441. There were no 

findings in the record which would 

support a chronic pain condition and 

justify prescribing controlled 

substances. Tr. 246–47. Dr. Kennedy 

found no credible physical exam to 

justify the diagnosis. Tr. 247, 265. The 

Respondent did not assess M.W.’s pain 

level, physical and psychological 

functioning, history, potential for drug 

abuse, or coexisting diseases. Tr. 265. 

The Respondent did not follow a 

legitimate treatment plan. Tr. 265. The 

physical exam findings were generally 

normal findings, except for limited 

range of motion at the lumbar spine. Tr. 

247; GX 10 at 7. M.W. reported a pain 

level, at worst, at 10 of 10, and at best, 

6 of 10. Tr. 248–49; GX 9 at 19; GX 10 

at 8. M.W.’s reported pain level was 

inconsistent with the generally normal 

results of the physical exam. Tr. 249–50. 

The electronic medical record for this 

visit does not contain the handwritten 

information recorded in GX 10 at 8. Tr. 

250–51; GX 10 at 9. Instead, the results 

of the physical exam mirror those 

findings made for UC, rendering M.W.’s 

chart not credible. Tr. 251–52. 

Additionally, the record contained 

‘‘wildly abnormal’’ *G UDS results that 

were ‘‘not meaningfully addressed.’’ Tr. 

252–55; GX 9 at 2–4, 9–11, 84, 96, 102. 

After a series of inconsistent UDS, the 

Respondent noted in M.W.’s chart that 

M.W. was dismissed from pain 

management with one month notice. Tr. 

258; GX 9 at 84. Yet, at the same visit 

in which he had been notified he would 

be dismissed, the history of present 

illness (HPI) reports patient is compliant 

and consistent. Tr. 258. Dr. Kennedy 

deemed the chart not credible, 

accordingly. Tr. 259. However, despite 

being dismissed, M.W. continued to be 

seen for months afterwards, without any 

further explanation. Tr. 259–60. Dr. 

Kennedy later conceded that M.W. was 

reinstated consistent with the 

Respondent’s office protocol. Tr. 449– 

50. The Respondent continued to 

prescribe him Alprazalam, 

amitriptyline, oxycodone, oxymorphone 

and Soma. Regarding the Alprazalam 

prescription, Dr. Kennedy found it 

unjustified based on the information 

supporting the anxiety diagnosis. Tr. 

260–61, 442–44; Tr. 261; GX 9 at 85. Dr. 

Kennedy noted the indications for 

anxiety were not supported by the 

findings within the chart, and mirrored 

those in the charts for UC and the other 

patients. Tr. 261–62. Although Dr. 

Kennedy opined M.W. should have 

been physically examined ‘‘on a regular 

basis’’ during his treatment, the charts 

suggest he was not examined again 

following his first examination.*H Tr. 

262. Dr. Kennedy further opined that as 

M.W. was a 25 year-old diagnosed with 

degenerative disc disease, the Tennessee 

standards would require diagnostic 

testing, such as an MRI to confirm the 

diagnosis. Tr. 262, 447–48. Dr. Kennedy 

found M.W.’s chart ‘‘not credible and 

fabricated.’’ Tr. 263–64, 266; GX 10 at 5, 

23. He noted that of 93 of 98 total visits 

shared the identical findings for the 

physical exams and ROS. Tr. 264. 

Similarly, Dr. Kennedy found the 

diagnosis of insomnia not credible. Tr. 

264. A finding of drug abuse and 

chemical dependency would have been 

supportable, but such indications were 

not sufficiently addressed by the 

Respondent. Tr. 264–65. The credible 

findings within M.W.’s chart did not 

support the prescribing of controlled 

substances,*I and the subject 

prescriptions were issued without 

medical justification and outside the 

usual course of professional practice. Tr. 

266–68. 

Patient C.F. 

Dr. Kennedy identified the summary 

chart he prepared on Patent C.F. Tr. 268; 

GX 12. C.F. was being treated for 

chronic pain due to trauma, unspecified 

inflammatory polyarthropathy. C.F. had 

suffered stab wounds to the chest 

requiring open heart surgery, which can 

cause long-term neuropathic pain. Tr. 

451–53. Dr. Kennedy opined the history, 


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*J Dr. Kennedy testified that the documented 

physical exam was insufficient, because ‘‘there are 

no positive objective physical findings that rise to 

the level of requiring medications prescribed.’’ Tr. 

291. He further testified, that based on B.C.’s known 

medical problems, ‘‘[it is] not impossible that this 

patient had a chronic pain condition. But I would 

note that over the course of 140 encounters the 

chart does not mention, . . . on a single occasion 

where [we are] consistently talking about what 

specific pain the patient is experiencing.’’ Tr. 305. 

Accordingly, Dr. Kennedy testified, the medical 

record did not support a recognized medical 

indication for the use of the prescribed controlled 

substances. Id. 

*KAccording to Dr. Kennedy, the medical records 

say ‘‘the patient is counseled at length, but again, 

[there is] nothing specific about what the 

counseling entailed or any decision made based on 

it.’’ Tr. 301. 

*LMy findings in this matter are based solely on 

Respondent’s prescribing of controlled substances, 

not Respondent’s prescribing of non-controlled 

substances or his overall treatment of patients. 

physical exams, the pain and physical 

and psychological functioning, the 

potential for substance abuse, written 

treatment plan, and alternate treatment 

considerations were inadequate, and did 

not justify the controlled substance 

prescriptions. Tr. 269–70, 285, 455; GX 

11 at 106; GX 12 at 7. The Respondent 

did not discuss the risks and benefits of 

controlled substance medications [and 

did not keep accurate records of the care 

he provided.] Tr. 285–86. The physical 

exam notes revealed essentially normal 

findings, however the electronic records 

for this visit failed to include these 

findings. Tr. 271; GX 11 at 69. Instead, 

under physical exam, the same language 

often duplicated in the records, is 

included. Tr. 272. There were no 

credible follow up physical exams, 

supporting studies, and no reasonable 

pain etiology. Tr. 272; GX 12 at 5, 6. The 

ROS indications were identically 

repeated in other charts. Tr. 272–73. Dr. 

Kennedy noted that the language in the 

general exam, ‘‘patient is alert and 

oriented’’ is similarly repeated 102 

times throughout the records. Dr. 

Kennedy reported an inconsistent UDS 

for C.F., collected on July 2, 2018, and 

many thereafter. Tr. 273–80, 282; GX 11 

at 9, 23, 24, 25, 28, 33, 44, 47, 54, 69, 

78, 111, 117; GX 20. C.F.’s UDS result 

was negative for all of the medications 

he was prescribed. Tr. 275–77. C.F. also 

tested positive for cocaine and 

marijuana. Tr. 277, 280. An inconsistent 

drug screen on July 26, 2017, is not 

mentioned in the medical records. Tr. 

288–89. Although the records 

repeatedly noted that, ‘‘patient 

counseled at length on unsatisfactory 

UDS,’’ this was insufficient under 

Tennessee standards in addressing 

C.F.’s drug abuse and diversion [because 

it did not document ‘‘anything 

specific.’’] Tr. 280, 284. On May 3, 2017, 

C.F. tested positive for buprenorphine, a 

medication typically used for opioid use 

disorder. Tr. 281–82. The Respondent 

had not prescribed it [and failed to 

investigate or address the issue.] Tr. 

282. Dr. Kennedy opined that the 

Respondent continued to improperly 

prescribe controlled substance without 

making a bona fide effort to cure C.F.’s 

addiction. Tr. 284. The Respondent 

prescribed alprazolam for anxiety and 

insomnia. Tr. 286; GX 11 at 39. 

However, the supporting indications are 

identical to the other patients who were 

diagnosed with anxiety and insomnia. 

Tr. 286–87. The Respondent did not 

maintain complete and accurate records 

for C.F. Tr. 286. Dr. Kennedy concluded 

that the controlled substance 

prescriptions to C.F. were outside the 

usual course of professional practice. Tr. 

287. 

Patient B.C. 

Dr. Kennedy identified his summary 

chart for B.C. Tr. 289–90; GX 13; GX 14. 

B.C. was being treated for chronic pain 

syndrome. B.C. was referred from the 

Clark County Jail, a potentially 

challenging patient. Tr. 458–59. The 

Respondent did not take an adequate 

medical history. Tr. 304. Although 

documentation of some physical exam 

was evident, it was insufficient and 

non-supportive to justify prescribing the 

medications prescribed.*J Tr. 290–91, 

304; GX 13 at 169; GX 14 at 7; GX 22. 

He did not make an adequate 

assessment of pain, physical and 

psychological function, history of 

substance abuse, coexisting diseases and 

conditions, written treatment plan, or 

alternate treatments. Tr. 304–06. He did 

not conduct any periodic reviews, or 

discuss the risks and benefits of the use 

of controlled substances. Tr. 306. There 

were no radiologic studies ordered. Tr. 

303. There were no prior medical 

records ordered or obtained, yet the 

records did include hospital records. Tr. 

303, 459–60. Dr. Kennedy noted 

indications from the ROS were 

duplicated throughout the records. Of 

141 encounters, the ROS language was 

duplicated 140 times, while the 

physical exam language was duplicated 

134 times. Tr. 291–92. He did not 

maintain accurate and complete records. 

Tr. 306. B.C. had serious health issues, 

including Hodgkins lymphoma, a cancer 

of the lymphatic system. Tr. 293. Dr. 

Kennedy identified a document in the 

chart indicating B.C. had been 

dismissed from a prior physician, a 

clear red flag [for which there was no 

‘‘evidence in the medical record that 

[the] red flag was investigated.’’] Tr. 

293–94; GX 13 at 188. 

Dr. Kennedy noted that B.C.’s pain 

level was left blank in the medical 

record for nine consecutive encounters, 

suggesting [‘‘that [the] information is not 

actually being obtained and that the 

documentation is simply being inserted 

in the chart.’’] Tr. 294–95; GX 13 at 159; 

GX 14 at 8. One entry reveals, ‘‘patient 

lied about his prescriptions,’’ an 

alarming red flag left unaddressed by 

the Respondent. Tr. 296; GX 13 at 169. 

Despite noting that the ‘‘patient lied,’’ 

the Respondent issued controlled 

medications and ‘‘held’’ up UDS for a 

month. Tr. 297. Dr. Kennedy opined 

that this prescribing was outside the 

usual course of professional practice. 

B.C. continued to have inconsistent 

UDS results, which were insufficiently 

addressed by the Respondent.*K Tr. 

297–98; GX 13 at 33, 79, 150, 155, 156, 

158, 164, 165. The information 

contained in B.C.’s chart did not justify 

the controlled medications prescribed 

by the Respondent, nor support that 

they were issued in the usual course of 

professional practice. Tr. 307–08. 

Patient M.H. 

Dr. Kennedy identified his summary 

chart for Patient M.H. Tr. 309; GX 15; 

GX 16. M.H. was being treated for 

chronic pain syndrome. GX 15 at 62, 63. 

The physical exam indications are 

identical to those repeated throughout 

the medical records. Tr. 311. The 

indications do not support any chronic 

pain diagnosis. Tr. 311. The records 

reveal M.H. suffered a gunshot wound 

in 2008, and although serious, would 

not in itself justify pain medication 

eight years later. Tr. 323. Dr. Kennedy 

assessed the Respondent’s treatment as 

outside the scope of acceptable medical 

practice.*L Tr. 312. He did not make an 

adequate assessment of pain, and 

physical and psychological function, of 

medical history, of history of substance 

abuse, coexisting diseases and 

conditions, periodic review of care, 

written treatment plan or alternate 

treatments. Tr. 326–28. He did not 

conduct any periodic reviews, or 

discuss the risks and benefits of the use 

of controlled substances. Tr. 328. M.H. 

had inconsistent UDS. Tr. 314–20; GX 

15 at 36, 39, 40, 47, 49, 53, 56, 63. 

Although several inconsistent UDS were 

noted in the chart, they were not 

typically mentioned. The Respondent 

failed to adequately address the UDS. 

Tr. 314–20. 

During his treatment with the 

Respondent, M.H. underwent a serious 

and complex spinal surgery, a major 

surgery. Tr. 320–22, 462–63. GX 15 at 

26; GX 16 at 9. M.H. was seen by the 

Respondent the day after his release 


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*M Dr. Kennedy opined that the ‘‘spinal surgery 

. . . definitely supported being on scheduled 

medications. [But] [t]hat’s not even referenced in 

the medical record.’’ Tr. 328. Accordingly, Dr. 

Kennedy opined that Respondent failed to 

document a ‘‘recognized medical indication for the 

use of the controlled substances, which were 

prescribed.’’ Id. 

*N Dr. Kennedy went on to testify that all of the 

controlled substances prescribed to the individuals 

at issue (other than the undercover) were 

‘‘dangerous.’’ Tr. 352. He stated, ‘‘[c]ontrolled 

substances are dangerous. . . . [In the] context that 

we’re talking about, because of the abnormal drug 

screens that were essentially ignored, and the 

documentation about the patient’s status was not 

done. In the face of sometimes very alarming 

patient red flags, I would say that it was clearly 

dangerous.’’ Id. Dr. Kennedy further opines, ‘‘none 

of the medical records are credible and . . . 

maintaining a patient on scheduled medications 

. . . sometimes at high dosages, without having 

honest, accurate, complete medical records is 

dangerous.’’ Tr. 352–53. This is because, according 

to Dr. Kennedy, ‘‘those medical records will 

instruct other people who look at them as to what 

the motivation was for the treatment . . . [a]nd if 

what is documented in the medical record simply 

doesn’t made sense or is something that is in 

conflict . . . [t]hat can . . . present a dangerous 

situation.’’ Tr. 353. 

from the hospital. GX 15 at 48. Despite 

his recent, major surgery, there is no 

mention of the surgery in the encounter 

notes.*M Tr. 322–23. The encounter 

notes are identical to all the other 

encounter notes reviewed. Tr. 323; GX 

15 at 48. There is no updated physical 

exam, as would be required by the 

standard of care. Tr. 324. The PE and 

HPI notes are the same as those the 4 

months prior to the spinal surgery, 

which is not credible. Tr. 324–25, 491– 

92; GX 15 at 49, 51. The Respondent did 

not maintain accurate and complete 

records as to M.H. Tr. 328. Dr. Kennedy 

reviewed the prescriptions issued. Tr. 

325; GX 19 at 1–13. He opined that the 

chart, including the number of 

inconsistent UDS, reveals that there was 

‘‘a significant probability’’ that M.H. 

was addicted to the habit of using 

controlled substances, yet the 

Respondent continued prescribing them 

without making a bona fide effort to 

cure the addiction. Tr. 325. The subject 

prescriptions were issued outside the 

usual course of professional practice. Tr. 

329–30, 493. 

Patient M.P. 

Dr. Kennedy identified his summary 

chart for Patient M.P. Tr. 331; GX 8. 

M.P. was being treated for low back, 

neck, hip and shoulder pain. She was 

later diagnosed with degenerative disc 

disease and right shoulder pain. 

Although a physical exam was 

performed, it was inadequate to 

substantiate the diagnoses. Tr. 331–34, 

339–40, 343; GX 7 at 2. A mechanical 

shoulder exam and range of motion back 

and neck exam should have been 

performed. Tr. 335. He did not make an 

adequate assessment of pain, nor 

physical and psychological function, of 

medical history, of history of substance 

abuse, coexisting diseases and 

conditions, periodic review of care, 

written treatment plan nor alternate 

treatments. Tr. 349–51. He did not 

conduct any periodic reviews, nor 

discuss the risks and benefits of the use 

of controlled substances. Tr. 349–50. 

Her employment as a server, working 

forty to sixty-five hours per week is 

inconsistent with her ‘‘occupational 

disability’’ score of 9 or 10, which Dr. 

Kennedy described as a significant 

conflict. Tr. 344–45; GX 7 at 3, 9, 10. Dr. 

Kennedy noted the hand-written exam 

notes did not appear in the electronic 

medical records, Tr. 325–36; GX 7 at 68, 

rather, the medical records reflected the 

same PE notes duplicated throughout 

the medical records for all of the 

patients at issue. Tr. 336, 351. The pain 

level is reported as 9, which is 

inconsistent with the PE indications. Dr. 

Kennedy indicated notes generated at 

the initial visit appeared to be a 

reminder to obtain certain prior medical 

records from Dr. M. Tr. 337, 468; GX 7 

at 1, 68. Those same notes appear in the 

record repeatedly thereafter. Tr. 337; GX 

7 at 59. Other than the requested 

pharmacy report, the prior records were 

never obtained. Tr. 338–39. The 

Respondent did not maintain accurate 

and complete records as to M.P., [and 

the chart contained language that was 

verbatim as other medical charts.] Tr. 

350–51. 

At M.P.’s initial visit, a UDS was 

performed revealing inconsistent 

results, which were never addressed in 

the records. Tr. 338; GX 7 at 19, 68. 

Notes reveal M.P. had been terminated 

from a prior physician, which is a red 

flag. Tr. 343. The records did reveal a 

monitoring of the Tennessee PDMP, and 

a successful pill count. Tr. 470. There 

were emergency room notes, which 

revealed she was admitted on April 17, 

2018, and released on April 18 for 

apparent heroin overdose, which 

occurred in the Respondent’s waiting 

room. Tr. 340–41; GX 7 at 25. [Dr. 

Kennedy testified that, aside from the 

ER records, ‘‘there is not a note in the 

chart that specifically refers to this 

patient overdosing or going 

unresponsive in the waiting room.’’ Tr. 

341.] At the next encounter, the 

Respondent discontinued the previous 

prescriptions for controlled substances, 

discussed drug rehab with M.P., which 

she declined to pursue, and prescribed 

buprenorphine, an opioid abuse 

treatment. Tr. 342. Dr. Kennedy viewed 

this course of action as dangerous and 

outside the standard. Tr. 342, 371–73, 

465–66. As the patient was shown to be 

on heroin, a UDS would be necessary to 

determine if she had heroin in her 

system before prescribing 

buprenorphine, which in conjunction 

with heroin could result in permanent 

withdrawal. Tr. 343. There were 

inconsistent UDS in the records for M.P. 

Tr. 346; GX 7 at 48, 59. 

Dr. Kennedy reviewed the 

prescriptions issued. Tr. 348–49; GX 21. 

He opined that the chart, including the 

number of inconsistent UDS, reveals 

that [Respondent should have been 

concerned that M.P. had a habit of 

being] addicted to controlled 

substances, yet the Respondent 

continued prescribing them without 

making a bona fide effort to cure the 

addiction, until after she overdosed on 

heroin. Tr. 348. The subject 

prescriptions, as well as those 

prescribed to the other charged patients, 

were dangerous *N and were issued 

without medical justification and 

outside the usual course of professional 

practice. Tr. 352, 488–89. 

DEA Special Agent (SA1) 

SA1 is a Special Agent with the Drug 

Enforcement Administration, and has 

been for ten years. Tr. 498. He attended 

the Special Agent Academy in 2009. Tr. 

498. He has been involved in three or 

four investigations surrounding 

prescriptions. Tr. 498. He served as case 

agent for the current investigation. The 

first search warrant was executed on 

February 27, 2018, at the clinic and at 

the Respondent’s residence in 

Clarksville, Tennessee, where paper 

records, patient files, financial records 

and digital evidence from several 

computers were seized. Tr. 500. The 

second warrant was served on the 

Respondent’s clinic in Millersville, 

Tennessee in September, 2018. Tr. 500. 

SA1 authenticated GX 5 as seized from 

the Respondent’s clinic. Tr. 502–03. 

SA1 noted that some medical 

documents provided by UC to the clinic 

were not found during the searches. Tr. 

503–04. SA1 authenticated GX 7 as 

medical records of M.P. seized from the 

Respondent’s clinic. Tr. 505. SA1 

authenticated GX 9, as the medical 

records of M.W. seized from the 

Respondent’s clinic. Tr. 506. SA1 

authenticated GX 11 as medical records 

of C.F. seized from the Respondent’s 

clinic. Tr. 507. SA1 authenticated GX 

13, as the medical records of B.C. seized 

from Respondent’s clinic. Tr. 508. SA1 

authenticated GX 15, as the medical 

records of M.H. seized from the 

Respondent’s clinic. Tr. 509–10. These 

complete records were supplied to the 

Government’s medical expert, Dr. 


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28Although relevant testimony herein, the 

January 15, 2019 restriction as to the Respondent’s 

Kentucky license does not constitute a ground for 

the material falsification allegation. It was neither 

charged in the OSC or the Government’s Prehearing Statements. Nor was it noticed by the 

Government at the time of its offering as a proposed 

additional charge under the principle of ‘‘litigation 

by consent.’’ Where the Government has not 

provided notice of a particular charge yet produces 

evidence on that charge, and does not argue that the 

issue was litigated by consent, the charge cannot 

form the basis for revocation. Cove Inc., d/b/a 

Allwell Pharmacy, 80 FR 29,037, 29,039 (2015). 

Kennedy. Tr. 511–12. Additionally 

supplied to the expert were PDMP 

reports, the missing records supplied to 

the clinic by UC and the video of the 

undercover encounters. Tr. 512. 

DEA Diversion Investigator (DI) 

DI is a Diversion Investigator with the 

Drug Enforcement Administration. Tr. 

519–20. She has been with DEA for ten 

years. She has been involved in 15–20 

investigations involving physicians 

prescribing controlled substances. As 

part of the current investigation, she 

collected relevant prescriptions, and 

processed the documents in support of 

the Order to Show Cause. Tr. 520. She 

identified the Respondent’s DEA 

Registration. GX 1. She authenticated 

GX 18, which include the prescriptions 

the Respondent issued to UC, which she 

obtained from various pharmacies. Tr. 

521–22. She authenticated GX 19, 

which are the prescriptions the 

Respondent issued to M.H., which DI 

obtained from various pharmacies. Tr. 

523–24. She authenticated GX 20, 

which are the prescriptions the 

Respondent issued to C.F., which DI 

obtained from various pharmacies. Tr. 

524–25. She authenticated GX 21, 

which are the prescriptions the 

Respondent issued to M.P., which DI 

obtained from various pharmacies. Tr. 

526. She authenticated GX 22, which 

are the prescriptions the Respondent 

issued to B.C., which DI obtained from 

various pharmacies. Tr. 527. She 

authenticated GX 23, which are the 

prescriptions the Respondent issued to 

M.W., which DI obtained from various 

pharmacies. Tr. 528. She authenticated 

the Respondent’s application for 

renewal of his DEA Registration for the 

State of Tennessee, # 59889, which was 

submitted on November 6, 2019. Tr. 

529–30; GX 26. 

She explained the significance of 

Question Three on the application, a 

‘‘liability’’ question. It queries whether 

the applicant has ever surrendered for 

cause, or had a state professional license 

or controlled substance registration 

revoked, suspended, denied, restricted, 

or placed on probation, or have any 

such action pending. Tr. 530–31. An 

affirmative answer to Question Three 

would trigger an investigation by a 

diversion investigator whether to issue 

the registration or to deny it. The 

Respondent answered ‘‘No’’ to Question 

Three. Tr. 531; GX 26. 

She also authenticated GX 29, the 

State of Tennessee Department of 

Health, Notice of Charges and 

Memorandum for Assessment of Civil 

Penalties. Tr. 531–32. She also 

authenticated GX 27, an order from the 

Chancery Court for the State of 

Tennessee, 20th Judicial District, 

Davidson County, Part 3, reversing 

Denial of Stay, but Accompanying Stay 

with Conditions. Tr. 532–33. DI noted 

that as of May 2019, the Conditions 

preclude the Respondent from writing 

prescriptions or providing direct patient 

care during the pendency of the stay. Tr. 

533–34. DI authenticated GX 28, An 

Agreed Order with the State of 

Tennessee, in which the Respondent 

was required to surrender his Pain 

Management Certificate, a professional 

license, in 2018, and prior to his 

application for registration in 2019. Tr. 

534–35; GX 26; GX 28. DI authenticated 

GX 25, an Emergency Order of 

Restriction from the Commonwealth of 

Kentucky board of License, issued on 

January 15, 2019, which again predates 

his subject DEA application, and is a 

further restriction on a professional 

license. Tr. 537–39.28 DI explained that 

although GX 28 related to the surrender 

of the pain clinic license and GX 26 was 

the Respondent’s personal application, 

as the Respondent applied for the pain 

clinic license himself, it constitutes a 

surrender of his license, warranting an 

affirmative response to question 3 of his 

DEA application. Tr. 542–43; GX 26. 

Additionally, the surrender is signed by 

the Respondent individually. Tr. 545. 

Respondent’s Case-in-Chief 

The Respondent presented his casein-chief through the testimony of one 

witness, the Respondent, Samson K. 

Orusa, M.D. 

Samson K. Orusa, M.D. 

Dr. Orusa was born in Bayelsa, 

Nigeria. Tr. 547. Dr. Orusa finished his 

medical education at a fully accredited 

medical school in Benin City, Nigeria 

and worked for a year in Nigeria. Tr. 

548. He completed a one-year rotational 

internship in internal medicine, 

pediatrics, surgery and OBGYN at the 

University of Port-Harcourt Teaching 

Hospital. Tr. 549–50. He then spent a 

year doing outpatient care at a rural 

primary healthcare center. Thereafter, 

he entered private practice in Lagos, 

Nigeria in 1989. In 1992, Dr. Orusa 

immigrated to the United States to 

advance his medical training. He 

completed a three-year residency 

program in internal medicine at 

Columbia University, College of 

Physicians and Surgeons in 1996. Tr. 

551. He obtained his Tennessee medical 

license, and with his certification in 

internal medicine, he was hired at a 

clinic in Clarksville, Tennessee. Tr. 552, 

555. He was admitted to practice at 

Memorial Hospital. In 1997, he opened 

his own clinic in Clarksville, where he 

had a general medical practice. In 2004, 

he began concentrating on pain 

management. Tr. 553. In 2017, he was 

board certified by the American Board 

of Interventional Pain Physicians as a 

specialist in interventional pain 

medicine. Tr. 553, 555. His extensive 

training involved the use of deep 

injections, spinal nerve blocks, nerve 

injections, foraminal blocks, and 

epidural injections. Tr. 553–54. By 

2018, he held sufficient certification to 

operate his own pain clinic in 

Tennessee. Tr. 555. 

From 1998 to 2017, the clinic 

transitioned from primary care to pain 

management, but even by 2017, he still 

had primary care patients. Tr. 557–58. 

Initial visits required appointment, 

which were scheduled for the first thing 

in the morning. Returning pain patients 

were permitted to walk in without 

appointments. Tr. 558. He has had a 

staff of ten, including a nurse 

practitioner and physician’s assistant. 

Tr. 559. By 2017, his pain management 

practice included deep tissue injections, 

cervical, lumbar and thoracic nerve 

blocks, sacroiliac joint injections, and 

bursitis injections. Tr. 60. In 2018, the 

frequency of injections increased as the 

Respondent began performing injections 

under fluoroscopy. Tr. 560. 

The Respondent had a protocol for 

new pain patients. Tr. 561. Some of 

these protocols were in writing, but not 

produced at the hearing. Tr. 620. They 

were required to bring a referral letter or 

letter of dismissal from their previous 

physician, any imaging reports, records 

from their last three medical visits and 

their pain medication. Tr. 561–62, 572. 

If the patient did not produce the 

materials, the clinic staff would attempt 

to obtain them. Tr. 564–66. The initial 

visit typically takes all day, as the 

patient must fill out extensive 

documentation (twenty pages with 252 

questions), which is necessary for 

diagnosis and selection of treatment. Tr. 

566–67. Seventy-five questions relate 

strictly to pain. It includes pain 

disability index, depression assessment, 

drug-use history and social history. 

There is a pain management agreement. 

Tr. 571–72. The staff explains the side 

effects, the addiction process and the 


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resources to help with addiction. Tr. 

572. 

The charts often contained the exact 

same language for indications of anxiety 

and insomnia. Tr. 633–34. The 

Respondent explained that the language 

was often identical as anxiety patients 

typically share the same symptoms. Tr. 

634–36. 

Undercover 

The Respondent took a medical 

history, a condition-specific physical 

exam for low back pain, reviewed the 

MRI (GX 6) of UC. Tr. 575–80. The 

Respondent noted that his physical 

exam of UC was not captured by the 

video of the encounter. The camera was 

pointed at the wall. Tr. 581–82. The 

Respondent spent no more than fifteen 

minutes with UC in the examination 

room. Tr. 621. The Respondent 

performed the required assessments 

related to pain, physical and 

psychological function, and history and 

potential for drug abuse. Tr. 582. This 

involved the paperwork UC filled out, 

authenticating that paperwork, the 

triage of UC by staff, UDS, and a final 

review of the paperwork by the 

Respondent with the patient. Tr. 583, 

584. Although UC’s chart contains an 

entry that his pharmacy printout was 

reviewed, the Respondent conceded that 

no pharmacy printout was reviewed and 

that such entry was in error. Tr. 631–32; 

GX 5 at 6. UC was a challenge as the 

clinic he reported had been closed, and 

he could not obtain the pharmacy 

information, so the Respondent could 

not verify that source. Tr. 583–85. 

The Respondent expected his patients 

to be honest and truthful with him, 

consistent with the DEA Physician’s 

Manual, which requires patients to be 

honest with their doctors. Tr. 586–87. 

The Respondent explained that a 

patient’s pain is very subjective. After 

reviewing his paperwork, including the 

MRI, examining UC, and speaking with 

him, the Respondent had no reason not 

to treat him as someone who had 

genuine pain. Tr. 588. UC’s statement 

that he had used controlled substances 

for his pain and that ibuprofen was not 

working supported the conclusion that 

his pain was long-standing, and 

warranted a Schedule II medication. As 

UC’s prior medical records could not be 

confirmed, the Respondent prescribed a 

dosage appropriate to a patient just 

starting opioid treatment. Tr. 589–90. 

The Respondent testified that he 

prepared a written treatment plan with 

appropriate treatment goals and therapy. 

Tr. 590–91. 

The Respondent explained that his 

electronic medical record often referred 

to other records. For example under 

history of present illness (HPI), he 

would often reference the initial 

encounter paperwork as included in the 

electronic record. Tr. 592. He also 

explained that he performed a physical 

exam at the initial visit of each of his 

patients, as required by the Tennessee 

pain management guidelines. Tr. 594. 

Physical exams thereafter are at the 

discretion of the physician. Tr. 594. 

Although UC had five visits to the 

clinic, only two involved encounters 

with the Respondent. The other three 

visits were ‘‘level one’’ visits, in which 

UC met with the Respondent’s staff 

only. Tr. 622–28, 645–50. Although the 

medical records reflect a physical 

examination took place at the level one 

visits, the Respondent explained that it 

was permissible in medical recordkeeping to carry forward results from 

prior examinations to later visit records, 

with new findings added. Tr. 623–28. 

Patient M.W. 

M.W. was first seen in January 2013. 

Tr. 595. M.W. was a gunshot victim to 

whom the Respondent prescribed 

alprazolam. This was based on the 

history and physical exam. Tr. 593. Tr. 

635–36; GX 9 at 69. The Respondent 

obtained a medical history, conducted a 

physical exam, performed an adequate 

pain, physical, and psychological 

assessment, history and potential for 

substance abuse. Tr. 596. The evaluation 

of the patient’s potential for drug abuse 

is an ongoing evaluation with UDS, 

involving both office screens, 

confirmatory lab screens, and pill 

counts. Tr. 596–98, 600. Once an 

inconsistent UDS is discovered, the 

Respondent initiates a dismissal 

process. Tr. 598–600. The Tennessee 

pain management guidelines leave it to 

the physician’s discretion on the 

handling of confirmed inconsistent UDS 

results. Tr. 598–99. The Respondent 

gives the patient a month to come into 

compliance. Tr. 600. If he has a 

consistent UDS within the month, the 

patient is permitted to remain in 

treatment. Tr. 601. The Respondent was 

able to bring M.W. back into compliance 

through counseling; however, the chart 

only documents that the patient was 

counseled as to the inconsistent UDS. 

Tr. 637–38. The Respondent prepared a 

written treatment plan. Tr. 601. 

Patient C.F. 

Patient C.F. had a stab wound to the 

chest, requiring heart surgery, resulting 

in residual chronic pain. Tr. 601. The 

Respondent took a medical history, 

performed a physical exam, adequate 

pain, physical and psychological 

assessments, and evaluated her history 

and potential for substance abuse. Tr. 

601–02. The Respondent noted that he 

had the benefit of confirmatory records 

from Vanderbilt University Medical 

Center. Tr. 602. The Respondent 

explained that the MED prescribed to 

C.F. was a relatively low dose of 82.5, 

noting the 120 MED threshold in which 

primary care physicians in Tennessee 

must consult with pain management 

specialists. Tr. 603–05. 

Patient B.C. 

Patient B.C. was referred from jail on 

December 19, 2012. The Respondent 

noted the pain management guidelines 

have changed since then. Tr. 605. The 

Respondent explained why he kept 

pharmacy printouts in his records 

because they are easier and quicker to 

obtain than medical records. Tr. 606. 

The pharmacy printout informs how 

long the patient has been prescribed 

medications, changes in dosage, and the 

prescriber. Tr. 607. Each of the 

Respondent’s patient records contained 

the instruction, ‘‘rule out doctor 

shopping,’’ which was a prompt to 

review the Tennessee PDMP to 

determine if the patient was obtaining 

controlled substances from multiple 

physicians. Tr. 608. 

The Respondent took a medical 

history, performed a physical exam, 

adequate pain, physical and 

psychological assessments, and 

evaluated his history and potential for 

substance abuse, and prepared a written 

treatment plan. Tr. 608. Although the 

Respondent described the extensive 

forms each patient is required to fill out 

at the initial visit, some of the described 

forms, which were referenced in B.C.’s 

chart, were missing from the 

Respondent’s records as relates to B.C. 

Tr. 628–29; GX 13 at 5. The Respondent 

explained that some records were lost in 

2014. Tr. 630. The missing records were 

not recreated as B.C. was a long-term 

patient. Tr. 630. 

Patient M.H. 

Patient M.H. presented with a post 

gunshot wound to the abdomen and 

chronic low back pain secondary to 

degenerative disc disease. Tr. 608. He 

had already been treated for pain 

management. He had a history of 

extensive spinal surgery at Vanderbilt 

University Medical Center, including a 

laminectomy. Tr. 609–11. The 

Respondent prescribed a lower MME 

than the surgeon prescribed postoperative at Vanderbilt. Tr. 611. The 

Respondent’s medical findings as to 

Patient M.H. for the visit just prior to 

M.H.’s major back surgery are the same 

as the Respondent’s findings for the 

visit the day after the surgery. Tr. 637– 

38; GX 15 at 48–50. The Respondent 


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*O According to Agency records, this application 

is pending renewal and has not expired. 

explained that the subject findings were 

based on history. Tr. 638. 

The chart reports M.H. has been 

‘‘compliant,’’ however, on the next page 

of the chart, it reports M.H. had an 

inconsistent UDS. Tr. 638–40; GX 15 at 

48–49. The Respondent explained that 

the inconsistent UDS related to the 

point of care test, not the confirmatory 

lab test, so the chart was accurate. Tr. 

640. M.H.’s chart contains apparently 

inconsistent findings of long-term 

insomnia, but with an entry of sleeping 

well. Tr. 640–41; GX 15 at 47–48. The 

Respondent conceded these were 

inconsistent entries. Tr. 641. 

Patient M.P. 

Patient M.P. was being managed for 

chronic pain. In her initial visit, she 

reported conflicting information 

regarding whether she had been in drug 

rehab treatment. Tr. 641–42; GX 7. The 

Respondent explained that he could 

only rely on the information provided. 

Tr. 642. Initially, in September of 2016, 

the Respondent requested dismissal 

records, an X-ray and an MRI from Dr. 

M. Tr. 642–44; GX 7 at 48. Yet, eighteen 

months later, the Respondent still had 

not received the requested records. Tr. 

644; GX 7 at 59. 

Ultimately, she came to the clinic 

overdosing on heroin. Tr. 611–12. She 

had to be resuscitated until EMS was 

able to reverse the effects of heroin with 

Narcan. Tr. 612. In the post-overdose 

notes the Respondent took an extensive 

history again regarding her drug use. He 

directed she cannot be on pain 

management but must be on opioid 

abuse treatment. So, the Respondent 

started her on Suboxone. Tr. 613. The 

Respondent explained his 

understanding of Suboxone induction. 

The first type of induction therapy is by 

observation. You give the patient 

Suboxone and observe them until they 

reach the point of withdrawal. The other 

form of induction is to give the patient 

Suboxone and send her home without 

observation by the physician. Tr. 612– 

14. M.P. was initially receptive to drug 

treatment, but later changed clinics. Tr. 

615. 

The Respondent took a medical 

history, performed a physical exam, 

adequate pain, physical and 

psychological assessments, and 

evaluated her history and potential for 

substance abuse, and prepared a written 

treatment plan. Tr. 615–17. Following 

the heroin overdose, the determination 

was made that she needed treatment of 

Suboxone and no further opioid 

prescriptions. Tr. 616. 

The Facts 

Stipulations of Fact 

The Government and the Respondent 

have agreed to 1, 2 in part, 3, 4, 5, 6, 

7 stipulations, which I recommend be 

accepted as fact in these proceedings: 

1. The Respondent is registered with 

the DEA as a Practitioner authorized to 

handle controlled substances in 

Scheduled II–V under DEA COR No. 

BO4959889 at 261 Stonecrossing Drive, 

Clarksville, Tennessee 37042. DEA COR. 

No. B04959889 expires by its terms in 

December 31, 2019.*O

2. On July 6, 2018, the Respondent 

submitted an application (No. 

W18070589C) for a new DEA COR at 

316 Pappy Drive, Oak Grove, Kentucky 

42262. On January 15, 2019, the 

Commonwealth of Kentucky, Board of 

Medical Licensure, issued an 

Emergency Order of Restriction 

prohibiting Respondent from 

‘‘prescribing, dispensing, or otherwise 

professionally utilizing controlled 

substances.’’ See 201 KY. ADMIN. REGS 

9:240 Section 1 and 3. Thus the 

Respondent is currently without 

authority to handle controlled 

substances in the Commonwealth of 

Kentucky. 

3. Soma is a brand name of 

carisoprodol, a Schedule IV controlled 

substance. 

4. Percocet is a brand name for 

oxycodone, a Schedule II controlled 

substance. 

5. Oxycodone is a Schedule II 

controlled substance. 

6. Oxymorphone is a Schedule II 

controlled substance. 

7. Alprazolam is a Schedule IV 

controlled substance. 

Findings of Fact 

The factual findings below are based 

on a preponderance of the evidence, 

including the detailed, credible, and 

competent testimony of the 

aforementioned witnesses, the exhibits 

entered into evidence, and the record 

before me. 

The Government’s case was largely 

based on (1) several undercover visits to 

Respondent’s medical office by UC; (2) 

the medical charts and prescriptions 

pertaining to UC as well as to five other 

patients, M.H., M.W., C.F., B.C. and 

M.P.; and (3) the testimony of Gene 

Kennedy, M.D., the Government’s 

expert. 

The Undercover Operation 

1. UC is currently an Assistant Special 

Agent in Charge with the Tennessee 

Bureau of Investigation. Tr. 30. [Omitted 

to preserve identity of UC.] 

2. UC testified that he was contacted 

by a Special Agent with the United 

States Department of Health and Human 

Services, Office of the Inspector 

General, to conduct an undercover 

operation at Respondent’s clinic. Tr. 33– 

34. In preparation for this operation, UC 

contacted Respondent’s clinic to set up 

an appointment. Tr. 34. He was told to 

bring several items to the appointment, 

including an MRI report, prior ‘‘chart 

notes’’ from his previous physician, a 

discharge summary from his previous 

physician, and documentation showing 

his last three months of prescriptions. 

Tr. 35. 

October 3, 2017 Visit 

3. UC testified he arrived at 

Respondent’s office on October 3, 2017, 

at approximately 8:00 a.m. Tr. 40. He 

testified that he paid $311 for this 

appointment. Tr. 49. He recorded 

portions of the visit on a ‘‘covert video 

camera device embedded’’ in a cell 

phone case. Tr. 42–43. Upon arrival, he 

provided an MRI report from September 

2, 2016, that he testified was ‘‘authentic 

in the sense that it was my physical 

MRI.’’ However, the physician’s name 

on the report had been altered. Tr. 35, 

37; GX 6 at 8–9. UC also provided 

‘‘fabricated’’ medical records which 

appeared to be signed by a nurse 

practitioner in Missouri. This nurse 

practitioner, according to UC, was no 

longer practicing in October 2017. Tr. 

37–8; GX 6 at 10–11. UC did not provide 

a discharge summary or any 

prescription information. Tr. 39–40; 

133. Nor did he provide any documents 

to show he had undergone a prior 

physical examination. Tr. 133. 

4. After providing the materials, UC 

was given what he estimated to be 

approximately twenty pages of 

paperwork to fill out, none of which 

was included in his medical file seized 

later by DEA. Tr. 40; GX 5. However, UC 

took photographs of the forms before 

turning them in. Tr. 100. When asked to 

state his pain level, UC testified he told 

the clinic staff that it was ‘‘9’’ out of 

‘‘10’’ (‘‘9/10’’), but when he was 

examined, he exhibited no overt 

indications of pain. Tr. 47, 56. 95. In 

fact, on one of the forms, he listed his 

quality of life as nine out of ten. Tr. 

131–32. On another form, he rated his 

pain disability as only two out of ten. 

Tr. 132. On one form, he also denied he 

suffered from insomnia, Tr. 132–33, but 

wrote on another form that he sought to 

work without pain and sleep through 

the night. Tr. 135. No one questioned 

him about these contradictions. Tr. 139. 

UC acknowledged that he filled out 


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*PThis section of the Recommended Decision 

included several superscript numbers in the body 

of the text without any corresponding text in 

footnotes. As I believe that the superscript text was 

likely the result of a scrivener’s error, I have deleted 

them throughout this section without further 

demarcation. 

forms at his first appointment on 

October 3, 2017, and took photographs 

of the forms. Tr. 100. The completed 

documents, however, were not part of 

the Respondent’s medical file seized by 

DEA and were not offered as exhibits by 

either party. Tr. 100; GX 5. 

5. UC testified that one of the 

Respondent’s employees apparently 

questioned the authenticity of the 

records he provided, stating that people 

are trying to ‘‘bring down Dr. Orusa.’’ 

Tr. 41–42. This employee was not 

named, but was identified as the person 

depicted in GX 30. UC testified that, 

after providing the paperwork, his vital 

signs were recorded, including his 

blood pressure. He was also asked about 

his weight and asked to give a urine 

sample. Tr. 44–45. 

6. UC described the October 3, 2017 

visit as follows. He testified that he 

made no attempt to demonstrate that he 

had a disability. He did not limp or 

change his gait. Tr. 45–46. Though UC 

arrived at the clinic at approximately 

8:00 a.m., he did not meet with 

Respondent until approximately 4:00 

p.m. Tr. 47–48. During UC’s encounter 

with Respondent, UC informed 

Respondent that the last ‘‘pain clinic’’ 

he visited was ‘‘Dr. Chapman in Pierce, 

City, Missouri, and had recently ‘‘closed 

down.’’ GX 4 at 1. He also told 

Respondent that the person who 

ordered his MRI was ‘‘Dr. Morgan,’’ a 

fictitious person. Tr. 37; GX 4 at 2. 

There was also a discussion about UC 

providing ‘‘pharmacy information.’’ GX 

4 at 3. UC told Respondent he would 

‘‘get those records if I need to’’ but did 

not know the pharmacy’s phone 

number. 

7. UC testified that he did not produce 

any additional records. Tr. 55. UC 

testified that, during his meeting with 

Respondent, he saw Respondent ‘‘going 

through some forms on the counter,’’ 

but could not determine what 

Respondent was reviewing. Tr. 105. UC 

testified that he told Respondent he fell 

while unloading a truck in 2013. Tr. 

117; GX at 1. He told Respondent that 

he was managing his pain with over-thecounter medications. Tr. 104. Though 

he told Respondent that he could 

‘‘barely function,’’ he did not 

‘‘elaborate’’ and there was no further 

discussion about this statement. Tr. 124; 

GX at 2; GX 17. UC testified that, in 

response to Respondent’s question 

about a previous diagnosis, he told 

Respondent that a previous medical 

provider told him he had degeneration 

of some sort and ‘‘some arthritis.’’ Tr. 

105–06; GX at 1. 

8. UC testified that Respondent 

performed a cursory physical exam 

described as ‘‘less than 60 seconds of 

any kind of physical touching.’’ Tr. 56. 

He testified that Respondent instructed 

him to remain seated and UC ‘‘just told 

[Respondent] where the pain was. If he 

did something and asked me if it hurt 

I would respond that I felt pain in that 

area.’’ Tr. 56. He testified that he made 

no ‘‘faces’’ and did not ‘‘wince’’ when 

touched. Following the exam, 

Respondent inquired about UC’s past 

pharmacy records. UC told Respondent. 

‘‘I’ll get those records if I need to.’’ Tr. 

108–09; GX at 3. UC testified that 

Respondent wanted to do ‘‘injections,’’ 

but UC refused. Tr. 117. According to 

the transcript of the meeting, UC told 

Respondent that he hated needles. GX at 

3. 

9. Approximately 30 minutes after he 

left the exam room, UC received a 

prescription for 42 tablets of 10 mg 

oxycodone, even though he never asked 

for oxycodone. GX 18 at 1; Tr. 57. 

During the encounter with Respondent, 

UC said that he had previously been 

given hydrocodone, Xanax (alprazolam) 

and ‘‘oxys.’’ GX 4 at 2. He also told 

Respondent that he was currently 

managing his pain with ‘‘Advil this past 

month’’ and had been ‘‘miserable.’’ Id. 

UC testified that he also received two 

other prescriptions for non-controlled 

substances, including Flexeril 

(cyclobenzaprine) and meloxicam. Tr. 

58. 

10. When asked why, he told 

Respondent he had lower back pain as 

opposed to pain in some other area, UC 

testified that, due to his exercise 

schedule, which including running five 

to seven miles each day, a practitioner 

might find objective evidence to justify 

complaints of knee, ankle, or shoulder 

pain. Here, he testified, he had 

‘‘absolutely no back pain whatsoever.’’ 

Tr. 114–15. He testified that, if 

Respondent’s clinic had been ‘‘doing 

their job,’’ he would ‘‘not expect to walk 

out with a prescription.’’ Tr. 105. Also, 

in his experience as an undercover 

operative, he testified that ‘‘more often 

than not’’ he has been refused 

prescriptions for controlled substances 

on the first visit. Tr. 123–24. 

11. A video recording of UC’s meeting 

with Respondent was played during the 

hearing. GX 17. UC testified that the 

video portion was a fair and accurate 

recording of his ‘‘entire encounter with’’ 

Respondent on October 3, 2017. Tr. 55. 

UC also testified that the transcript of 

that encounter (GX 4) was an accurate 

representation of the recording. Both the 

recording and the transcript were 

accepted into the official record. GX 4, 

17; Tr. 70–71, 187–88. 

October 17, 2017 Visit 

12. UC testified that, in order to 

receive more ‘‘narcotic prescriptions,’’ 

he was required to come in for a ‘‘wellcare’’ visit before making an 

appointment during which he would 

receive narcotics. Tr. 57–58. On October 

17, 2017, he returned to the clinic and 

paid $25 for the visit. Tr. 57–59; GX 4, 

GX 17. He was then called back to a 

‘‘triage room’’ and asked about his 

weight and blood pressure. Tr. 59.*P He 

saw the Respondent for ‘‘about one 

minute,’’ during which Respondent 

asked him if he slept well. When he 

responded, ‘‘not really,’’ Respondent 

wrote him a prescription for 

amitriptyline. Tr. 59; GX at 4. This 

encounter was also recorded. GX 17. UC 

testified that, during this visit, no 

physical exam was performed. Tr. 71– 

72. He testified that no one examined 

his lower back, extremities, or checked 

his muscles. Tr. 72. 

October 18, 2017 Visit 

13. UC testified that, on October 18, 

2017, he returned to the clinic for refills 

of narcotic medications. Tr. 74. Because 

the clinic would no longer accept cash, 

he secured a debit card to pay for the 

appointment, which cost $377. Tr. 75– 

76. During the October 18, 2017 

appointment, UC waited approximately 

two and a half hours. He was not 

examined and he met with medical 

personnel only for the purpose of 

paying the fee and receiving his 

prescription. There was no discussion 

about his medical condition and he 

provided no medical records. Tr. 76–77. 

At the end of this visit, he received a 

prescription for 84 tablets of 10 mg 

oxycodone, twice as much as he 

received 15 days earlier. Tr. 78; GX 18 

at 3–4. 

November 15, 2017 Visit 

14. UC testified that, on November 15, 

2017, he returned to the clinic for a 

fourth time. On this visit, he testified 

that he paid $25, ‘‘waited for some 

amount of time,’’ was ‘‘asked’’ about his 

weight and blood pressure, and was 

dismissed. Tr. 83–84. 

November 20, 2017 

15. UC testified that, on November 20, 

2017, he returned to the clinic for a fifth 

time. He described this as a ‘‘medication 

visit.’’ Tr. 87. UC testified that, during 

this visit, he wrote down his name on 


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a clipboard, ‘‘paid a certain amount of 

money,’’ and waited a ‘‘certain amount 

of time’’ before he was given his 

prescriptions. Tr. 87–8. UC testified that 

he was asked to provide a urine sample 

to which he added ‘‘a vial of a substance 

that would cause me to test positive for 

oxycodone.’’ Tr. 88. At this visit, he 

received another prescription for 84 

tablets of 10 mg oxycodone. GX 18 at 4; 

Tr. 89. 

Falsified Medical Records 

16. UC identified numerous entries in 

his medical record that indicated his 

medical chart had been fabricated. For 

instance, on October 17, 2017, 

Respondent wrote that UC exhibited a 

number of ‘‘[a]nxiety symptoms’’ such 

as shortness of breath, ‘‘palpitations, 

sweating, dizziness, [and] shaking.’’ GX 

5 at 5. UC testified that he never 

reported any of these symptoms. Tr. 79– 

80. Respondent also wrote that UC 

reported ‘‘no headache, no dizziness, no 

nausea, no vomiting, no abdominal 

pain, no diarrhea, no constipation, no 

[shortness of breath], no chest pain, 

[and] no palpitations.’’ GX 5 at 5. UC 

testified that he was never asked about 

any of these symptoms. Tr. 80–81. UC 

was also asked about a notation for 

October 17, 2017, where his weight and 

blood pressure were recorded. GX 5 at 

5. He testified that he was neither 

weighed, nor did anyone measure his 

blood pressure on that day. Also, on 

October 17, 2017, Respondent wrote 

‘‘Chest: no deformities, no asymmetry, 

no rales, no wheezes, normal vesicular 

breath sounds.’’ GX 5 at 5. UC testified 

that no one ever examined his chest or 

evaluated his breathing. Tr. 81–82. 

17. Regarding the medical records for 

October 18, 2017, Respondent’s entries 

for this appointment were identical to 

those made the day before. Again, he 

wrote ‘‘ROS for MSS is positive for 

muscle pain, back pain, joint pain, and 

body aches and pain.’’ GX 5 at 4. 

Respondent again repeated the same 

notations about UC’s chest and 

breathing. However, all of this was 

created on a day when UC did not see 

the Respondent. Nor was UC examined 

by anyone else at the clinic that day. Tr. 

82–83. 

18. With respect to the November 15, 

2017 visit, Respondent repeated the 

same notations even though, as UC 

testified, no exams were performed and 

Respondent was not there to see him. 

Nevertheless, Respondent wrote out a 

list of symptoms in the section marked 

‘‘HPI,’’ GX 5 at 4, which correspond to 

the visit on November 15, 2017. Again, 

UC testified that none of these 

symptoms were ever discussed and no 

examination was performed. Tr. 86. 

Likewise, with respect to Respondent’s 

notes in the section marked ‘‘PE’’ 

(physical exam),’’ UC testified that no 

one examined his chest or breathing. Tr. 

86–87. 

19. Finally, regarding the November 

20, 2017 visit, Respondent wrote, as he 

had four times previously, that UC was 

‘‘positive for muscle pain, back pain, 

joint pain and body aches.’’ GX 5 at 3. 

UC testified that no physical exam was 

performed on this day. Tr. 90–91. 

Respondent also, for the fifth time, 

described a physical examination 

(section ‘‘PE’’) that was never 

performed. GX 5 at 3; Tr. 91. 

20. UC also testified about the results 

of his urine drug screening. He noted 

that, despite adding an oxycodone 

solution to his urine on November 20, 

2017, his records showed ‘‘UDS ALL 

NEG.’’ Tr. 91–92; GX 5 at 3. UC also 

testified that there was no discussion 

about this result. Tr. 92. 

Expert Review 

21. Dr. Kennedy testified as the 

Government’s expert. Dr. Kennedy owns 

a pain management clinic on St. Simons 

Island, Georgia; has treated more than 

1000 patients, but his current practice 

involves fewer than 100 patients. Tr. 

143–46. He testified that he has treated 

patients with post-surgical issues, 

patients with cancer pain, and patients 

with back pain. Tr. 178–80. Most of his 

patients, he testified, need to have their 

medications ‘‘managed.’’ Tr. 143–44. Dr. 

Kennedy testified that he has been 

practicing pain management for 

approximately 15 years. Tr. 145, 179– 

80. He is licensed to practice medicine 

in Georgia and runs a ‘‘state licensed 

pain management clinic.’’ Tr. 146; GX 

24. Dr. Kennedy is not board certified. 

Tr. 373. 

22. Dr. Kennedy testified that, in his 

practice, he prescribes controlled 

substances, including opioids such as 

oxycodone and hydrocodone. Tr. 181. 

He has treated insomnia and/or anxiety 

with benzodiazepines, such as 

lorazepam, diazepam, and alprazolam. 

Tr. 181–82. He has also prescribed 

muscle relaxants such as carisoprodol. 

Tr. 181–82. 

23. Dr. Kennedy has also lectured on 

controlled substances ‘‘numerous 

times’’ at the DEA training facility in 

Quantico. He has taught at the National 

Advocacy Center, and at various DEA 

and Department of Justice (‘‘DOJ’’) 

‘‘venues’’ around the country. Tr. 184– 

85. He also taught a course for 

pharmacists in Tennessee. Tr. 185. 

24. Dr. Kennedy testified he has 

served as an expert witness in numerous 

cases, including those involving 

physicians alleged to have improperly 

prescribed controlled substances. Tr. 

182. He estimates he has testified 13–14 

times. Id. 

25. As the Government’s expert, Dr. 

Kennedy reviewed the medical charts 

for patients UC (GX 5), M.P. (GX 7), 

M.W. (GX 9), C.F. (GX 11), B.C. (GX 13), 

and M.W. (GX 15). He also reviewed the 

prescriptions for these patients (GX 18– 

23), the undercover video created by 

UC, the transcripts (GX 17 and 4) of that 

video, and UC’s reports of his 

undercover visits (GX 3). Tr. 183–84, 

186–89; 213–16. 

26. Dr. Kennedy explained that, 

according to the minimal standard of 

care for prescribing controlled 

substances in Tennessee, a physician 

must: (1) Take an adequate medical 

history; (2) perform a physical 

examination; (3) obtain past medical 

records; (4) order diagnostic testing if 

indicated; [and (5) maintain complete 

and accurate medical records.] Tr. 189– 

90, 195–96, 353. 

27. Dr. Kennedy testified that, 

according to the minimal standard of 

care, a physician’s medical records 

should contain the following; (1) past 

medical records or attempts to obtain 

past medical records; (2) a ‘‘pain 

history’’ or ‘‘collection of statements 

pertaining directly’’ to the patient’s pain 

history; (3) history of ‘‘drug abuse, 

chemical dependency, [or] alcoholism;’’ 

(4) records of a physical examination 

‘‘that is specific and pertinent to the 

problem;’’ (5) patient assessment; (6) 

treatment plan; and (7) efforts to obtain 

state pharmacy reports. Tr. 197. He also 

testified he was familiar with Tennessee 

regulations requiring a physician to 

keep accurate and complete medical 

records. Tr. 201. 

28. Dr. Kennedy testified that, in cases 

where physicians prescribe opioids in 

combination with benzodiazepines, a 

physician must have a ‘‘heightened 

sense of vigilance managing the patient’’ 

and this should be noted in the medical 

record. Tr. 190–91. 

29. Dr. Kennedy testified that there 

are indications of possible drug abuse 

and/or diversion in patients whose 

medical histories are ‘‘difficult to 

obtain’’ as well as patients with ‘‘cloudy 

histories of drug abuse.’’ Tr. 191–92. He 

discussed urine drug screening (‘‘UDS’’) 

and how a physician must respond if a 

patient’s UDS result shows an 

‘‘abnormality, it’s not simply enough to 

just to say a patient’s urine is positive 

for cocaine or positive for 

methamphetamine. The physician also 

has an obligation to say that the patient 

is positive for this substance, and I 

discussed it with the patient, and I’m 

going to do this if it happens again or 

I’m going to adjust the medications or 


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*Q I find that Dr. Kennedy credibly testified that 

the applicable standard of care in Tennessee is as 

described in Finding of Fact Nos. 26–27 supra. The 

requirements of the Tennessee regulations are 

clearly components of and incorporated into the 

standard of care set forth by Dr. Kennedy at Finding 

of Fact Nos. 26–27. TENN. COMP. R. & REGS. 

0880–02–.14(6)(e)(3)(i). Further, Dr. Kennedy’s 

expert testimony is unrebutted in this proceeding. 

not adjust the medications. And it has 

to be something that is utilized as a 

diagnostic treatment.’’ Tr. 194. Dr. 

Kennedy further testified that the above 

information should be documented in 

the medical record. Id. 

30. Dr. Kennedy testified that, prior to 

testifying in this matter, he reviewed 

Tennessee regulations pertaining to the 

prescribing of controlled substances. He 

confirmed that these regulations 

included requirements that a physician 

must (1) take the patient’s documented 

medical history; (2) perform a physical 

examination; (3) perform an adequate 

assessment and consideration of the 

patient’s pain, physical, and 

psychological function: And (4) take a 

history for the potential of substance 

abuse.*Q Tr. 200. Dr. Kennedy also 

testified that he was familiar with rules 

prohibiting a physician from prescribing 

controlled substances to a person 

addicted to the habit of using controlled 

substances without making a bona fide 

effort to the cure the patient’s habit. Tr. 

199. 

31. Based on his qualifications and 

expertise, his knowledge of Tennessee 

regulations and statutes, and his 

experience as an operator of a pain 

management clinic, Dr. Kennedy was 

accepted as an expert in pain 

management qualified to give an expert 

opinion regarding Respondent’s 

prescribing of controlled substances. Tr. 

211–12; 216. 

Undercover 

32. With respect to the undercover 

officer, Dr. Kennedy testified he 

reviewed the video recording UC made 

during his visits to Respondent’s clinic 

on October 3 and October 17 of 2017 

(GX 17); UC’s investigative reports for 

all five of his visits to Respondent’s 

clinic; the patient medical file 

pertaining to patient UC; and the 

prescriptions issued to UC by the 

Respondent. GX 3, 5, 17–18; Tr. 184–86, 

216, 239. 

33. Dr. Kennedy testified that, based 

on his review, UC was being treated for 

back pain. He testified that the physical 

exam was inadequate, describing it as 

‘‘cursory in that it consisted of 

essentially observing’’ UC, ‘‘touching 

his back, and having him lift his leg 

once.’’ Tr. 217. Dr. Kennedy testified 

that a minimally adequate exam would 

include ‘‘observing the patient’s back, 

looking for muscle spasms, performing 

‘‘lumbar range of motion maneuvers 

where the patient . . . bends at the 

waist in various directions,’’ doing a 

neurologic exam, and doing a ‘‘straight 

leg raised test having the patient laying 

supine on the table.’’ Tr. 224–25. Dr. 

Kennedy concluded that, based on the 

medical records, there were no ‘‘positive 

findings on physical examination.’’ Tr. 

226. In other words, he testified, 

Respondent’s ‘‘physical exam findings’’ 

failed to support a ‘‘pain ideology’’ and 

certainly could not justify a reported 

pain level of 9/10. Tr. 226–27, 234. With 

respect to the Respondent’s diagnosis 

(GX 5 at 2) of ‘‘[d]egeneration of 

[l]umbar [i]ntervertebral [d]isc . . . 

[l[umbar [s]pondylosis . . ., and 

[i]nsomnia,’’ Dr. Kennedy noted that 

even the MRI failed to mention 

degenerative disc disease and Dr. 

Kennedy could identify no other 

findings to justify that diagnosis. Tr. 

240–42. And though spondylosis could 

be severe enough to ‘‘be causing 

symptoms,’’ Dr. Kennedy testified that 

there was no evidence that these 

symptoms existed. Tr. 242. Dr. Kennedy 

also testified that neither UC’s MRI 

report, nor the prior medical records, 

justified the prescribing of controlled 

substances. Tr. 228, 230. 

34. Looking at Respondent’s medical 

record for patient UC, Dr. Kennedy 

further concluded that the record was 

rife with fabrications as the following 

testimony indicates: ‘‘. . . if you look it 

says on the second line, chest, no 

deformities, no asymmetry. The only 

way to determine [this] is to look at 

them with their shirt off. And this 

patient was not required to disrobe . . . 

there is also no indication . . . that the 

heart and lungs were evaluated. But 

there are heart and lung evaluations as 

well as the chest appearance . . . . you 

couldn’t see everything, but clearly 

listening to the audio, I didn’t hear any 

breathe in, breathe out, anything that 

would indicate to me that there was a 

physical exam that included these 

things.’’ Tr. 218–19. Dr. Kennedy further 

noted that the description of UC’s 

general exam in the section marked 

‘‘PE’’ (GX 5 at 6) was not only 

inaccurate, but was identical to 

language he found in more than 20 

medical charts he reviewed for other 

patients. Likewise, Dr. Kennedy 

disputed the truth of the information 

supposedly used to support a finding 

that UC suffered from insomnia. Tr. 233. 

This was further confirmed by UC’s 

testimony, in which he testified that he 

neither reported nor manifested any of 

the listed ‘‘insomnia’’ symptoms. Tr. 

79–80, 134–35, 139. Dr. Kennedy also 

testified that the physical exam depicted 

in the video (GX 17) as well as UC’s 

subsequent encounters could not 

possibly support the repeated findings 

corresponding to visits on October 17 

and 18, as well as the visits on 

November 15 and 20. GX 5 at 3–5; Tr. 

235–37. 

35. Dr. Kennedy testified that UC, as 

an undercover patient, also manifested 

various ‘‘red flags’’ for possible drug 

abuse and/or diversion. Tr. 230. He 

noted that UC’s prior medical records 

showed only a ‘‘single office visit’’ (GX 

6 at 10) from a provider in another state 

and documentation from the encounter 

showed a ‘‘completely normal physical 

exam with no positive findings at all.’’ 

Tr. 220–31. Dr. Kennedy testified that a 

patient who comes from a clinic that has 

closed and provides medical records 

from a practitioner whose license has 

been suspended are red flags for 

diversion. He further noted that none of 

these red flags was ‘‘significantly’’ 

addressed by Respondent prior to 

prescribing oxycodone. Tr. 238. 

36. In summary, Dr. Kennedy testified 

that, with respect to UC, Respondent: (1) 

Failed to discuss the risks and benefits 

of the use of oxycodone; (2) failed to 

maintain truthful and accurate medical 

records; (3) failed to assess the patient’s 

pain, physical and psychological 

function; (4) failed to assess the 

patient’s history and potential for 

substance abuse; (5) failed to assess any 

co-existing diseases, conditions in the 

presence of a recognized medical 

indication for the use of oxycodone; and 

(6) failed to create and follow a 

legitimate written treatment plan for the 

patient’s individual needs. Tr. 231–32, 

237–38. Dr. Kennedy further concluded 

that Respondent’s prescribing of 

controlled substances to UC was outside 

the usual course of professional 

practice. Tr. 239. Additionally, Dr. 

Kennedy concluded that the 

prescriptions issued to UC lacked a 

medical justification. Tr. 239; see also 

GX 6 (Dr. Kennedy’s expert report on 

patient UC), 18 (prescriptions issued to 

UC). 

Patient M.W. 

37. Dr. Kennedy testified that 

Respondent treated M.W. for lower back 

and limb pain. Tr. 245. M.W. was 

prescribed alprazolam, carisoprodol 

(Soma), oxycodone, and oxymorphone. 

GX 23. In his review, Dr. Kennedy 

stated that there was nothing that 

meaningfully supported a chronic pain 

condition. Id. Dr. Kennedy discussed a 

form in M.W.’s file titled ‘‘Pain 

Management Physical Exam.’’ (GX 9 at 

14/GE 10 at 7). He testified that the form 


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indicated only ‘‘normal findings’’ and 

‘‘acute findings.’’ Tr. 247. Yet, the 

patient reported a pain level of 10/10. 

Tr. 248–49; GX 9 at 19; GX 10 at 8. As 

Dr. Kennedy testified, in order to 

support such a high pain level, there 

would have to be ‘‘very, very significant 

findings on lumbar exam.’’ For instance, 

he testified, he would not expect to see 

a patient whose ‘‘gait is normal.’’ Tr. 

250. Dr. Kennedy also testified that it 

would be unusual to see a 25 year old 

patient with degenerative disc disease. 

In that case, he testified, he would 

expect Respondent to order radiologic 

studies to confirm the diagnosis. Tr. 

262–63; GX 10. 

38. Dr. Kennedy also found nothing in 

M.W.’s medical chart to justify the 

continuing prescribing of alprazolam. 

Tr. 260–62. Rather, he found ‘‘identical 

language [to] that [which] was used to 

diagnose insomnia’’ for UC. Tr. 261; see 

also GX 9 at 84 (‘‘HPI’’ entry); compare 

to GX 5 at 5 (same). There was no 

evidence, Dr. Kennedy testified, that 

M.W. suffered from insomnia. Tr. 264. 

39. Dr. Kennedy also testified that 

there were numerous red flags in M.W.’s 

medical chart for abuse and/or 

diversion. Specifically, M.W.’s chart 

showed a ‘‘wildly abnormal’’ drug 

screen in which M.W. tested positive for 

morphine, hydromorphone, and THC in 

March 2016. He was also negative for 

carisoprodol and alprazolam, two drugs 

he was being prescribed and was 

supposed to be taking. Tr. 251–52; GX 

9 at 2–4. Based on the medical record, 

Dr. Kennedy testified that this abnormal 

result was not ‘‘meaningfully 

addressed.’’ Tr. 252. Elsewhere in the 

chart, there were other examples of 

abnormal drug screens. On March 28, 

2016, Respondent wrote ‘‘UDS pos for 

oxy-unsat.’’ GX 9 at 102. Then, 

according to an UDS lab report dated 

May 11, 2017, M.W. tested negative for 

four controlled substances he had been 

prescribed, including oxycodone, 

oxymorphone, alprazolam, and 

carisoprodol (Soma). GX 9 at 10. 

Inexplicably, six days before M.W. 

provided the specimen, Respondent 

wrote that M.W. was negative for all 

prescribed drugs. GX 9 at 85. On May 

31, 2017, Respondent wrote that M.W. 

is ‘‘dismissed’’ with ‘‘one month 

notice,’’ but noted on the same day that 

M.W. was ‘‘compliant and consistent.’’ 

GX 9 at 83–84. However, less than a 

month later, the ‘‘dismissal [was] 

reversed.’’ GX 9 at 83. Dr. Kennedy said, 

‘‘[i]f the patient is negative for the 

medication and its metabolites of 

essentially everything that’s prescribed, 

there’s a problem.’’ Tr. 260. Dr. Kennedy 

testified that this was evidence of drug 

abuse, which Respondent failed to 

adequately address. Tr. 265. 

40. With respect to M.W.’s medical 

records, Dr. Kennedy again cited 

numerous inconsistences that 

questioned Respondent’s credibility. 

For, instance, he testified that the 

findings on the handwritten physical 

exam form (GX 9 at 14) did not match 

those listed in Respondent’s electronic 

medical record (GX 10 at 9). Instead, Dr. 

Kennedy found the same language in 

M.W.’s chart that was present in UC’s 

medical chart and in the charts for other 

patients he reviewed. Tr. 250–51. Dr. 

Kennedy noted that, out of 98 different 

encounters, Respondent repeated the 

same notes 93 times. Tr. 264. This, he 

testified, rendered the medical file ‘‘not 

credible.’’ Tr. 251. Dr. Kennedy also 

cited the fact that Respondent described 

M.W. as ‘‘compliant and consistent’’ the 

same day he tested negative for all the 

controlled drugs he was supposed to be 

taking. Tr. 258–59. Again, he described 

the inconsistency as ‘‘simply not 

credible.’’ Tr. 259. 

41. In summary, Dr. Kennedy testified 

that, with respect to M.W., Respondent: 

(1) Failed to perform an adequate 

physical examination; (2) failed to 

assess the patient’s pain, physical, 

psychological function; (3) failed to 

assess the patient’s history and potential 

for substance abuse, coexisting diseases 

and conditions; and (4) failed to create 

a legitimate written treatment plan for 

the patient’s individual needs. Tr. 265. 

He further testified that Respondent 

failed to maintain a truthful and 

accurate medical record for M.W. Tr. 

265–66. Dr. Kennedy testified that the 

controlled substances in GX 23 were 

prescribed to M.W. outside the usual 

course of professional practice. Tr. 266– 

68. Lastly, Dr. Kennedy testified that his 

opinions applied to all the prescriptions 

in GX 23. Tr. 266. 

Patient C.F. 

42. Dr. Kennedy testified that patient 

C.F. was treated for ‘‘chronic pain due 

to trauma, unspecified inflammatory 

polyarthropathy.’’ Tr. 269. However, he 

testified that C.F.’s physical 

examination did not support the 

controlled substances prescribed. Id. Dr. 

Kennedy noted that, while C.F. had 

scars, her muscle strength was normal 

as well as her tendon reflexes, and her 

fine touch sensation. Also, he testified 

that C.F.’s ‘‘[l]eg raise tests were normal 

bilaterally’’ and her gait was normal. Tr. 

270; GX 11 at 106. Dr. Kennedy also 

testified that the findings in 

Respondent’s ‘‘Pain Management 

Physical Exam’’ (GX 11 at 106) were not 

accurately reflected in Respondent’s 

electronic medical record. Tr. 271. 

Rather, he testified, that portion of 

Respondent’s medical record contained 

findings ‘‘present in the other charts 

that we’ve already discussed.’’ Tr. 271– 

72; GX 11 at 69. Dr. Kennedy also 

testified that he could find no evidence 

of any credible follow-up physical 

exams being performed even though 

C.F. remained a patient for nearly four 

years. Tr. 272. Nor did he find any 

evidence that Respondent ordered any 

supporting studies. Id. 

43. Dr. Kennedy testified regarding 

the long term prescribing of alprazolam 

to C.F. He testified that there was no 

justification for this since the objective 

findings to support a diagnosis of 

insomnia and/or anxiety were identical 

to those found in medical records for 

other patients, including those 

pertaining to UC. GX 11 at 39; Tr. 286– 

87. 

44. Dr. Kennedy testified he also 

found evidence of possible abuse/ 

diversion that Respondent never 

adequately addressed. In GX 11 at 117, 

a laboratory report dated July 9, 2018, 

shows that C.F. tested negative for 

prescribed controlled medications, a 

result that Respondent himself labeled 

as ‘‘Unsat.’’ GX 11 at 117; Tr. 274. 

According to Respondent’s own records, 

this test was taken just three days after 

C.F. was prescribed alprazolam, 

oxycodone, and oxymorphone. GX 11 at 

9; Tr. 274–75. Pursuant to a report dated 

July 7, 2017, C.F. tested negative for 

alprazolam and positive for 

hydrocodone. GX 11 at 111; Tr. 275. On 

June 30, 2017, Respondent’s records 

showed C.F. was prescribed alprazolam, 

but hydrocodone is not listed. GX 11 at 

25; Tr. 275–76. Dr. Kennedy testified 

that, according to notes from a 

subsequent visit on July 26, 2017, the 

abnormal drug screen result is never 

mentioned. GX 11 at 23; Tr. 288–89. 

45. Additionally, Dr. Kennedy 

testified that, according to a lab report 

dated July 13, 2014, C.F. tested positive 

for a diazepam metabolite, negative for 

alprazolam, and positive for cocaine, 

oxycodone, oxymorphone, and THC. GX 

11 at 79; Tr. 276–278. However, at the 

next visit on August 11, 2014, 

Respondent’s medical records made no 

reference to these abnormal results. GX 

11 at 69; Tr. 278–79. 

46. Regarding C.F.’s multiple 

unsatisfactory drug screens, Dr. 

Kennedy testified that it is insufficient 

for a physician to simply document that 

the patient was counseled. Rather, he 

testified, the doctor needs to document 

how the abnormalities are ‘‘going to 

affect treatment.’’ Tr. 283–84. Dr. 

Kennedy testified that ‘‘repeating over 

and over that the patient was 

counseled. . . leads to the impression 


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. . . that it’s not making any difference 

to the prescriptions for schedule 

medications that are being provided.’’ 

Id. 

47. Regarding C.F.’s medical record, 

Dr. Kennedy testified that Respondent’s 

description of his review of systems 

(‘‘ROS’’) was repeated throughout C.F.’s 

chart and found in numerous other 

charts. Tr. 272–73. Likewise, the section 

labeled ‘‘Gen exam’’ was repeated 102 

times and also found in other charts. Tr. 

273. Also, as stated above, Respondent’s 

description of the physical exam failed 

to reflect the actual handwritten notes 

but rather mirrored what had been 

written about other patients, including 

UC. 

48. In summary, regarding patient 

C.F., Dr. Kennedy testified that 

Respondent: (1) Failed to take an 

adequate medical history; (2) failed to 

perform an adequate physical 

examination; (3) failed to perform an 

adequate assessment in consideration of 

the patient’s pain, physical, and 

psychological function; (4) failed to take 

an adequate history and evaluate the 

potential for substance abuse; (5) failed 

to create a written treatment plan 

tailored for the individual needs of the 

patient; (6) failed to consider the 

patient’s pertinent medical history and 

physical examination as well as the 

need for further testing, consultation, 

referrals, or use of other treatment 

modalities, (7) failed to discuss the 

benefits and risks of the use of 

controlled substances; (8) failed to 

conduct a documented periodic review 

of the care at reasonable intervals in 

view of the individual circumstances of 

each patient; (9) failed to keep complete 

and accurate records of the care 

provided; and (10) continued to issue 

prescriptions for controlled substances 

without making a bona fide effort to 

cure the patient’s habit. Tr. 284–86. 

49. Dr. Kennedy further testified that, 

for the reasons in Finding of Fact no. 48 

and given C.F.’s numerous abnormal 

drug screen results, the issuing of 

prescriptions for controlled substances 

to C.F., including those in GX 20, were 

issued ‘‘outside the scope of acceptable 

medical practice.’’ Tr. 287. 

Patient B.C. 

50. Dr. Kennedy testified that B.C. 

was treated for ‘‘chronic pain 

syndrome.’’ Tr. 290. He testified that he 

found no handwritten notes reflecting a 

physical exam and that the electronic 

records showed results that were ‘‘nonsupportive’’ of a chronic pain condition. 

Tr. 290–91. Dr. Kennedy explained that 

the electronic records, in the category of 

‘‘systems review,’’ reflected 141 

encounters with Respondent and the 

‘‘system review documentations was 

repeated 140 times.’’ He also testified 

that the ‘‘physical exam documentation 

was repeated ‘‘approximately 134 

times.’’ According to Dr. Kennedy, this 

same documentation was found, 

verbatim, in other charts. Tr. 292. 

51. Though Dr. Kennedy 

acknowledged that B.C. seemed to have 

serious medical ‘‘problems,’’ such as 

Hodgkin’s lymphoma, a cancer of the 

lymphatic system, Respondent’s notes, 

inexplicably, failed to reflect those 

problems. Dr. Kennedy noted, for 

instance, that the review of systems for 

B.C. showed, among other things, that 

B.C.’s ‘‘endocrine’’ was ‘‘negative.’’ Tr. 

292–93; see, e.g., GX 13 at 169. Dr. 

Kennedy also took issue with the fact 

that Respondent, after repeatedly 

reporting a nonsensical pain level of ‘‘/ 

10’’ over the course of nine sequential 

encounters,’’ began to record a pain 

level of 10/10 without medication and 

8/10 with medication. Tr. 295–96. Dr. 

Kennedy testified that, despite B.C. 

being dismissed from another physician, 

there was also no attempt to obtain prior 

medical records. Tr. 304. 

52. Dr. Kennedy testified that there 

were numerous red flags in B.C.’s chart 

for abuse and/or diversion. First, B.C. 

had been dismissed from a previous 

physician, GX 13 at 188, Tr. 293–94, an 

issue that was not investigated. Tr. 294. 

Respondent also noted that B.C. lied 

about his prescriptions at the first 

encounter—another issue that does not 

appear to have been addressed. Tr. 296; 

GX 13 at 169. In fact, Dr. Kennedy 

testified that the record, despite 

evidence of B.C.’s untruthfulness, 

appears to show that Respondent 

prescribed controlled substances to B.C. 

without ordering a UDS screen, 

something that ‘‘is outside the course of 

usual medical practice.’’ Tr. 297; GX 13 

at 169. Dr. Kennedy testified that there 

were also abnormal drug screen results. 

On February 20, 2013, B.C. was positive 

only for oxycodone when he was also 

prescribed alprazolam. Tr. 298; GX 13 at 

166. A note dated March 26, 2013, 

indicated ‘‘unsatisfactory benzo only 

UDS.’’ Tr. 298–99; GX 13 at 165. On 

August 19, 2013, B.C. was positive for 

opioids only, another unsatisfactory 

result. Tr. 299; GX 13 at 158. Dr. 

Kennedy identified more abnormal 

results, including one where B.C. 

testified positive only for 

benzodiazepines when he was also 

being prescribed oxycodone. Tr. 299; 

GX 13 at 156–57. In another note, B.C. 

tested positive only for oxycodone when 

he was also being prescribed 

alprazolam. GX 13 at 155–65 (October 6, 

2014 entry); Tr. 300. On December 22, 

2014, Respondent noted that B.C. was 

negative for all drugs, another 

unsatisfactory result. Tr. 300–01; GX 13 

at 150. And though the record indicates 

the patient was counseled, Dr. Kennedy 

testified that there was ‘‘nothing specific 

about what the counseling entailed or 

any decisions’’ made as a result. Tr. 301. 

53. Dr. Kennedy also testified that 

B.C. had been in jail, another red flag. 

Tr. 301–02. Dr. Kennedy testified that, 

in this case, a ‘‘reasonable physician 

would provide documentation that 

supports that this was addressed and 

taken into account in pursuing a 

treatment plan.’’ Tr. 302–03. 

54. Dr. Kennedy noted numerous 

instances where the medical chart, 

instead of recording an actual pain 

level, listed a nonsensical pain level of 

‘‘/10.’’ Tr. 294–95. 

55. In summary, Dr. Kennedy testified 

that Respondent’s examination of B.C. 

did not support a chronic pain 

condition. He testified that Respondent: 

(1) Failed to take an adequate medical 

history; (2) failed to perform a sufficient 

physical examination; (3) failed to 

perform an adequate assessment in 

consideration of the patient’s pain, 

physical and psychological function; (4) 

failed to take an adequate history for the 

potential for substance abuse, coexisting 

diseases and condition; (5) failed to 

show the presence of a recognized 

medical indication for the use of a 

dangerous drug or controlled substance; 

(6) failed to create a written treatment 

plan tailored to the individual needs of 

the patient; (7) failed to adequately 

address the need for further testing, 

consultation, referrals or other treatment 

modalities; (8) failed to discuss the risks 

and benefits of the use of controlled 

substances; (9) failed to do a 

documented periodic review of his care 

at reasonable intervals in view of the 

individual circumstances; and (10) 

failed to keep complete and accurate 

records of the care provided. Tr. 304–06. 

Dr. Kennedy testified that, in his view, 

there was no medical justification for 

issuing prescriptions for controlled 

substances to B.C. and, as a result, the 

prescriptions were issued outside the 

usual course of professional practice. Tr. 

307–08; GX 22. 

Patient M.H. 

56. Dr. Kennedy testified that M.H. 

was being treated for ‘‘chronic pain 

syndrome.’’ Tr. 309. He testified that 

Respondent performed a physical exam; 

however, the findings were identical to 

those for other patients. See GX 15 at 

62–63 (sections marked ‘‘PE’’ for 

February 4, 2015, and April 1, 2015); Tr. 

310–11. Moreover, Dr. Kennedy testified 

that these findings did not support a 

chronic pain condition and that the 


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treatment was ‘‘outside the scope of 

acceptable medical practice.’’ Tr. 311– 

12. Dr. Kennedy also testified about an 

‘‘extremely’’ unusual situation in which 

M.H. underwent extensive spinal 

surgery and was discharged from the 

hospital on October 4, 2016. However, 

the medical chart entry dated October 5, 

2016, shows no mention of the surgery 

and no evidence that a physical exam 

was performed. Tr. 320–22, 323–24; GX 

15 at 26 (hospital notes), at 48 

(encounter note for October 5, 2016). Dr. 

Kennedy described the situation as 

follows: ‘‘this whole thing is about 

scheduled medications to begin with. 

This is ostensibly a chronic pain 

patient. He has been discharged from 

the hospital the day before this 

encounter after having had a major, 

major spinal surgery. And not only it is 

not mentioned in this encounter note, 

but essentially this encounter note is 

normal and identical to all the other 

encounter notes.’’ Tr. 322–23. Dr. 

Kennedy also found no justification for 

the continued prescribing of alprazolam. 

As with the other patients, the factual 

findings related to insomnia/anxiety 

were identical to the findings found in 

charts of the other patients discussed 

during the hearing. GX 15 at 49 (section 

marked HPI). 

57. Dr. Kennedy testified that he also 

found evidence of abnormal drug 

screens, even on M.H.’s initial visit. Tr. 

313–14; GX 15 at 63. On some 

occasions, M.H. tested positive for illicit 

substances. See GX 15 at 56 (positive for 

THC, cocaine, PCP); GX 15 at 53 

(positive for amphetamines); Tr. 314–15. 

In other cases, he tested negative for 

drugs that had been prescribed. GX 15 

at 51 (positive for opiates and 

oxycodone when patient also prescribed 

alprazolam and carisoprodol); GX 15 at 

49 (same); GX 15 at 47 (same); GX 15 at 

40 (UDS negative for all drugs while 

patient was prescribed oxycodone 

oxymorphone, alprazolam, and 

carisoprodol); GX 15 at 39 (UDS 

negative for all drugs); GX 15 at 36 (UDS 

positive only for oxycodone). In these 

cases, Dr. Kennedy testified, there was 

no evidence that Respondent addressed 

the abnormalities other than to order 

repeat tests. Tr. 313–20. 

58. Dr. Kennedy also reviewed the 

prescriptions for M.H. identified as GX 

19. These included alprazolam, 

oxymorphone, carisoprodol, and 

oxycodone. Tr. 325–27. 

59. Dr. Kennedy testified that, in his 

view, Respondent prescribed controlled 

substances to M.H. despite evidence 

that M.H. may have been addicted to the 

habit of using controlled substances. Tr. 

327. He testified that Respondent made 

no effort to cure M.H.’s habit. Id. Dr. 

Kennedy further testified that 

Respondent: (1) Failed to perform an 

adequate assessment in consideration of 

the patient’s pain, physical and 

psychological function; (2) failed to 

evaluate the patient’s history and 

potential for substance abuse; (3) failed 

to determine a recognized medication 

indication for the use of controlled 

substances; (4) failed to create a written 

treatment plan tailored for the 

individual needs of the patient; (5) 

failed to consider the need for further 

testing, consultation, referrals, or use of 

other treatment modalities; (6) failed to 

discuss the risks and benefits of the use 

of controlled substances; (7) failed to do 

a documented periodic review of the 

patient’s care at reasonable intervals in 

view of the individual circumstances of 

each patient; and (8) failed to keep 

complete and accurate records of the 

care provided to M.H. Tr. 327–29. 

60. Dr. Kennedy testified that the 

controlled substances issued to M.H. 

were not issued in the usual course of 

professional practice. Tr. 329. 

Patient M.P. 

61. Dr. Kennedy testified that M.P. 

was being treated for low back, neck, 

hip, and shoulder pain. Tr. 331. Dr. 

Kennedy testified that the physical 

exam used to justify prescribing 

controlled substances for M.P. was 

inadequate. Tr. 334. As he explained, 

M.P. was diagnosed with degenerative 

disc disease and right shoulder pain. To 

determine whether M.P. had shoulder 

pain, Dr. Kennedy testified, a physician 

would have to test the patient’s ‘‘range 

of motion as far as extension, flexion, 

abduction . . . tenderness to palpation 

specific to the shoulder.’’ Tr. 335. With 

respect to degenerative disc disease, Dr. 

Kennedy testified that Respondent 

should have found, for example, that the 

‘‘dorsal lumber and C-spine range of 

motion’’ was ‘‘decreased in all 

directions.’’ Id. Dr. Kennedy testified he 

saw no such findings in Respondent’s 

medical record. Tr. 334–35. Dr. 

Kennedy also testified that M.P.’s pain 

level was inconsistent with other 

information in the record. 

62. Dr. Kennedy also testified that, 

throughout M.P.’s medical records, 

Respondent expressed a need to obtain 

M.P.’s prior medical records, but 

Respondent never followed through. GX 

7 at 1, 59, 68; Tr. 337–38. This included 

obtaining M.P.’s x-rays, MRI report, and 

the dismissal form from her prior 

physician. Id. 

63. Dr. Kennedy testified that M.P. 

manifested signs of abuse/diversion 

which were not adequately addressed. 

Initially, M.P. tested positive for 

buprenorphine, benzodiazepines, 

oxycodone, and THC. GX 7 at 68. 

According to the pharmacy report, 

which was part M.P.’s medical chart, 

buprenorphine had never been 

prescribed. Tr. 338–39; GX 7 at 19. Dr. 

Kennedy also discussed that there was 

mention of ‘‘termination paperwork 

from a previous physician,’’ another red 

flag for abuse and/or diversion. Tr. 342. 

Dr. Kennedy pointed out ‘‘highly 

conflicting’’ information in M.P.’s 

medical chart. Tr. 345. For instance, 

M.P. listed her occupational disability 

as both ‘‘9’’ and ‘‘10,’’ but stated she 

works ‘‘45–60 hours weekly’’ as a 

waitress. GX 7 at 9–10. Dr. Kennedy also 

questioned M.P.’s truthfulness when she 

denied that she had ever been in a drug 

treatment program (GX 7, 13). However, 

following a heroin overdose, she told 

Respondent that she refused to go into 

such a program because she had tried 

drug treatment before. GX 7 at 57 

(section marked ‘‘HPI’’). Dr. Kennedy 

also pointed out several abnormal drug 

screen results. In GX 7, page 58, there 

is a reference to a positive test for THC, 

opioids, and benzodiazepines, none of 

which had been prescribed. Tr. 347. 

64. M.P. overdosed on heroin in 

Respondent’s waiting room. GX 7 at 25; 

Tr. 340–41. However, according to Dr. 

Kennedy, Respondent incorrectly 

treated M.P. with Suboxone 

(buprenorphine). 

65. Dr. Kennedy testified that 

Respondent repeatedly issued 

prescriptions for controlled substances 

to M.P. despite the fact she was 

addicted to the habit of using controlled 

substances. Tr. 348. Also, up until the 

point M.P. overdosed on heroin, 

Respondent made no effort to cure 

M.P.’s habit. Tr. 348–49. Dr. Kennedy 

also testified that, with respect to M.P., 

Respondent: (1) Failed to perform a 

sufficient physical examination; (2) 

failed to perform an adequate 

assessment in consideration of the 

patient pain, physical and psychological 

function; (3) failed to record an 

adequate history of potential substance 

abuse; (4) failed to determine a 

recognized medical indication for the 

use of controlled substances; (5) failed 

to create a written treatment plan 

tailored for the individual needs of the 

patient; (6) failed to take a pertinent 

medical history and perform a physical 

examination as well as perform further 

testing, consultation, referrals. And the 

use of other treatment modalities; (7) 

failed to discuss the risk and benefits of 

the use of controlled substances; (8) 

failed to do a documented periodic 

review of M.P.’s care at reasonable 

intervals in view of the individual 

circumstances; and (9) failed to keep 


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29 In its GPHB, the Government argues Factors 

Two and Four should be combined for a joint 

analysis. 

*R Remaining text omitted for brevity and clarity. 

30T. C. A. § 63–6–214. License denial, 

suspension, or revocation; grounds; examination; 

investigations; abstract of record; report; standard of 

care; disclosure of records; screening panels; 

hearings; orders 

(a) The board has the power to: (1) Deny an 

application for a license to any applicant who 

applies for the same through reciprocity or 

otherwise; (2) Permanently or temporarily withhold 

issuance of a license; (3) Suspend, or limit or 

restrict a previously issued license for such time 

and in such manner as the board may determine; 

(4) Reprimand or take such action in relation to 

Continued 

complete an accurate medical records of 

the care provided to M.P. Tr. 348–50. 

66. Dr. Kennedy also testified that the 

prescriptions issued to M.P., including 

those in GX 21, were issued outside the 

usual course of professional practice, 

and that Respondent lacked a medical 

justification for issuing the 

prescriptions. Tr. 352. 

67. With respect to patients, B.C, C.F., 

M.H., M.W., and M.P., Dr. Kennedy 

testified that the prescribing of 

controlled substances to these patients 

was dangerous. Tr. 352. As a basis for 

that opinion, he cited: (1) Abnormal 

drug screens that were ‘‘essentially 

ignored,’’ (2) the lack of documentation 

about the patients’ status; (3) medical 

records that were not credible; (4) and 

maintaining patients on scheduled 

medications, sometimes at high dosages 

‘‘without having honest, accurate, 

complete medical records.’’ Tr. 352–53. 

He testified that ‘‘[b]ecause medical 

records will instruct other people who 

look’’ at the patients later, a medical 

record that ‘‘simply doesn’t make sense 

or [has] something that is in conflict,’’ 

can ‘‘present a dangerous situation.’’ Tr. 

353. 

Respondent’s Falsification 

68. DI testified that Respondent 

submitted an application to renew his 

DEA COR (No. BO4959889) on 

November 6, 2019. Tr. 529; GX 26. She 

testified that Respondent answered 

‘‘no’’ to the third liability question on 

the application. Specifically, the 

question sought to determine whether 

Respondent had ever ‘‘surrendered for 

cause or had a state professional license 

or controlled substance registration 

revoked, suspended, denied, restricted, 

or placed on probation.’’ Tr. 530. 

69. DI introduced a document 

outlining an administrative action 

against Respondent, titled ‘‘Notice of 

Charges and Memorandum for 

Assessment of Civil Penalties,’’ 

submitted May 1, 2019, by the 

Tennessee Department of Health. GX 29; 

Tr. 531. As the document states, 

Respondent was charged with, among 

other things, prescribing ‘‘narcotics and 

other medications and controlled 

substances in amounts and/or duration 

that were not medically necessary, 

advisable, or justified for a diagnosed 

condition.’’ GX 29 at 5. 

70. DI introduced a document from 

the Chancery Court for the State of 

Tennessee, 20th Judicial District, 

Davidson County, Part III (‘‘Chancery 

Court’’), staying the proceedings brought 

by the Tennessee Department of Health, 

[omitted] and imposing restrictions on 

Respondent’s license as conditions of 

the stay. Those restrictions included 

prohibiting Respondent from: (1) 

Writing prescriptions; (2) supervising or 

collaborating with any mid-level 

practitioners for the writing of 

prescriptions; and (3) providing direct 

patient care including but not limited to 

diagnosing, treating, operating on or 

prescribing for any person. GX 27 at 2– 

3; Tr. 533–34. The order is dated May 

17, 2019, approximately three months 

before Respondent submitted his 

renewal application. GX 27 at 4. 

71. DI introduced a document, titled 

Agreed Order, dated August 21, 2018. 

GX 28. DI testified that the Order 

provided that Respondent must 

surrender his Tennessee Pain 

Management Clinic Certificate (‘‘Pain 

Clinic Certificate’’), No. 246, as a result 

of violations related to the prescribing of 

controlled substances. Id. at 5–7. 

72. DI testified, as a result of having 

surrendered his Pain Clinic Certificate 

and the restrictions placed upon his 

medical license by the Chancery Court, 

that Respondent did not answer 

truthfully on his renewal application. 

Tr. 536. 

Analysis 

Findings as to Allegations 

The Government alleges that the 

Respondent’s COR should be revoked, 

and any applications should be denied, 

because the Respondent [has committed 

such acts as would render his 

registration inconsistent with the public 

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

823(f) and in particular the Government 

relies on Public Interest Factors Two 

(the Respondent’s experience 

conducting regulated activity) and Four 

(the Respondent’s compliance with state 

and federal laws related to controlled 

substances)]. ALJ Ex. 1.29 In the 

adjudication of a revocation of a DEA 

COR, the DEA bears the burden of 

proving that the requirements for such 

revocation are satisfied. 21 CFR 

1301.44(e). Where the Government has 

sustained its burden and established 

that a respondent has committed acts 

that render his registration inconsistent 

with the public interest, to rebut the 

Government’s prima facie case, a 

respondent must both accept 

responsibility for his actions and 

demonstrate that he will not engage in 

future misconduct. Patrick W. Stodola, 

M.D., 74 FR 20,727, 20,734 (2009). 

Acceptance of responsibility and 

remedial measures are assessed in the 

context of the ‘‘egregiousness of the 

violations and the [DEA’s] interest in 

deterring similar misconduct by [the] 

Respondent in the future as well as on 

the part of others.’’ David A. Ruben, 

M.D., 78 FR 38,363, 38,364 (2013). 

Where the Government has sustained its 

burden and established that a registrant 

has committed acts inconsistent with 

the public interest, that registrant must 

present sufficient mitigating evidence to 

assure the Administrator that he can be 

entrusted with the responsibility 

commensurate with such a registration. 

Medicine Shoppe-Jonesborough, 73 FR 

364, 387 (2008). 

The Agency’s conclusion that ‘‘past 

performance is the best predictor of 

future performance’’ has been sustained 

on review, Alra Labs., Inc. v. DEA, 54 

F.3d 450, 452 (7th Cir. 1995), as has the 

Agency’s consistent policy of strongly 

weighing whether a registrant who has 

committed acts inconsistent with the 

public interest has accepted 

responsibility and demonstrated that he 

or she will not engage in future 

misconduct. Hoxie v. DEA, 419 F.3d 

477, 482–83 (6th Cir. 2005); see also 

Ronald Lynch, M.D., 75 FR 78,745, 

78,754 (2010) (holding that the 

Respondent’s attempts to minimize 

misconduct undermined acceptance of 

responsibility); George C. Aycock, M.D., 

74 FR 17,529, 17,543 (2009) (finding 

that much of the respondent’s testimony 

undermined his initial acceptance that 

he was ‘‘probably at fault’’ for some 

misconduct); Jayam Krishna-Iyer, M.D., 

74 FR 459, 463 (2009) (noting, on 

remand, that despite the respondent’s 

having undertaken measures to reform 

her practice, revocation had been 

appropriate because the respondent had 

refused to acknowledge her 

responsibility under the law); Medicine 

Shoppe–Jonesborough, 73 FR 364 at 387 

(noting that the respondent did not 

acknowledge recordkeeping problems, 

let alone more serious violations of 

federal law, and concluding that 

revocation was warranted).*R

Tennessee Law 

As a licensed medical doctor in 

Tennessee, the Respondent was subject 

to TENN. CODE ANN. § 63–6–214(b)(12) 

through (14),30 as those provisions 


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disciplining an applicant or licensee, including, but 

not limited to, informal settlements, private 

censures and warnings, as the board in its 

discretion may deem proper; or (5) Permanently 

revoke a license. 

(b) The grounds upon which the board shall 

exercise such power include, but are not limited to: 

. . . (12) Dispensing, prescribing or otherwise 

distributing any controlled substance or any other 

drug not in the course of professional practice, or 

not in good faith to relieve pain and suffering, or 

not to cure an ailment, physical infirmity or 

disease, or in amounts and/or for durations not 

medically necessary, advisable or justified for a 

diagnosed condition; (13) Dispensing, prescribing 

or otherwise distributing to any person a controlled 

substance or other drug if such person is addicted 

to the habit of using controlled substances without 

making a bona fide effort to cure the habit of such 

patient; (14) Dispensing, prescribing or otherwise 

distributing any controlled substance, controlled 

substance analogue or other drug to any person in 

violation of any law of the state or of the United 

States; . . . (emphasis added). 

31Tenn. Comp. R. & Regs. 0880–02–.14 

SPECIALLY REGULATED AREAS AND ASPECTS 

OF MEDICAL PRACTICE. [Omitted text of 

guidelines for brevity.] 

*SText omitted for brevity. 32 [Omitted original text in which footnote 

appeared.] 33 [Omitted original text in which footnote 

appeared.] 

34UC noted that despite his records stating that 

‘‘[UC] . . . has had a history of insomnia and 

anxiety for several years,’’ he did not report anxiety 

symptoms of shortness of breath, of having 

palpitations, sweating, dizziness, or shaking. Tr. 

79–80; GX 5. The medical record also reflects that 

he had a headache that day, despite the fact that 

UC did not report having a headache, dizziness, 

nausea, or vomiting. Tr. 80; GX 5. No one 

questioned UC as to whether he had abdominal 

pain, diarrhea, and constipation. Tr. 80–81. 

pertain to ‘‘dispensing, prescribing, or 

otherwise distributing’’ controlled 

substances. Specifically, section 63–6–2 

l 4(b)(12) prohibits a physician from 

prescribing controlled substances ‘‘not 

in the course of professional practice, or 

not in good faith to relieve pain and 

suffering, or not to cure an ailment, 

physical infirmity or disease, or in 

amounts and/or for durations not 

medically necessary, advisable or 

justified for a diagnosed condition.’’ 

Additionally, section 63–6–214(b)(13) 

prohibits a physician from prescribing 

controlled substances to a person 

‘‘addicted to the habit of using 

controlled substances’’ without ‘‘making 

a bona fide effort to cure the [patient’s] 

habit.’’ To determine a violation of these 

provisions, the Tennessee Board of 

Medical Examiners uses a 

nonexhaustive list of guidelines (‘‘the 

guidelines’’) found in TENN. COMP. R. 

& REGS. 0880–02-.14(6)(e).31 The 

guidelines require that a physician: (1) 

Take a documented medical history; (2) 

conduct a physical examination; and (3) 

perform an adequate ‘‘assessment and 

consideration of the [patient’s] pain, 

physical and psychological function, 

any history and potential for substance 

abuse, coexisting diseases and 

conditions, and the presence of a 

recognized medical indication for the 

use of a dangerous drug or controlled 

substance.’’ TENN. COMP. R. & REGS. 

0880–02–.14(6)(e)(3)(i). Additionally, 

Rule 0880–02–.14 (6)(e) requires 

physicians to create a ‘‘written 

treatment plan tailored for the 

individual needs of the patient’’ that 

considers the patient’s ‘‘pertinent 

medical history and physical 

examination as well as the need for 

further testing, consultation, referrals, or 

use of other treatment modalities.’’ It 

also requires the physician to ‘‘discuss 

the risks and benefits of the use of 

controlled substances,’’ complete a 

‘‘documented periodic review of the 

care . . . at reasonable intervals,’’ and 

‘‘keep [c]omplete and accurate records 

of the care.’’ Id. at 0880–02– 

.14(6)(e)(3)(ii)–(v). 

Exclusion of the Respondent’s 

Testimony 

The Government objected to the 

Respondent’s testimony *S because prior 

to the hearing Respondent identified 

that he may testify regarding the 

material falsification allegation, but said 

he would not testify regarding the 

prescribing allegations as he has another 

matter pending. However, at the 

hearing, the Respondent sought to 

present testimony regarding the 

allegations surrounding his prescribing. 

He did not offer testimony regarding the 

material falsification allegation. [The 

ALJ permitted all portions of the 

Respondent’s testimony that could have 

been reasonably anticipated by the 

Government and I have considered 

Respondent’s testimony in reaching my 

decision. I find it unnecessary to reach 

any further conclusions and have 

omitted the remainder of the ALJ’s 

analysis for brevity, as the Government 

did not take exception to the ALJ’s 

ultimate decision.] 32 33

Accurate and Complete Medical 

Records 

The Government alleges that the 

Respondent failed to maintain accurate 

and complete medical records for each 

of the subject patients, as mandated by 

the relevant Tennessee regulations and 

standard of care. The medical records 

contain the results of physical 

examinations and other tests, which did 

not occur on the reported dates. The 

records are rife, across all of the subject 

patients, with identical findings, 

suggesting the subject examinations 

either did not take place, or the results 

were not reported accurately. 

In explaining the identical anxiety 

and insomnia indications written in 

each of his patients’ charts to justify 

benzodiazepines, the Respondent 

testified that his patients exhibited the 

same symptoms which is common 

among anxiety patients. However, the 

fact that UC’s chart reflected that he had 

the same anxiety indications and other 

indications identical to the other five 

patients, despite the fact that he testified 

credibly that he did not complain of any 

anxiety symptoms, greatly reduces the 

credibility of the Respondent’s subject 

explanations. Tr. 79–80. Indeed, most of 

the indications within UC’s chart were 

unreported by him.34 UC reviewed 

Government Exhibit 5 and noted that he 

was not asked about any of the reported 

symptoms. Tr. 81. As to why individual 

patients had the same indications 

within the chart for long periods of 

time, the Respondent maintains that the 

subject record findings were carried 

forward from prior tests, as permitted by 

the Tennessee standard of care. 

[However, Dr. Kennedy testified, ‘‘there 

is no regulation anywhere that allows a 

physician [to] document physical exam 

findings that he did not perform. That’s 

not acceptable under any regulations.’’ 

Tr. 652.] 

Similarly, the Respondent justified 

reporting test results when no tests 

occurred, as he claimed was permitted 

by the Tennessee standard. Prior test 

results were simply carried forward 

within the electronic medical record. I 

credit Dr. Kennedy’s opinion that 

reporting test results purported to have 

occurred on a particular date, which did 

not then occur, is contrary to the 

Tennessee standard of care. Even a 

casual review of the relevant Tennessee 

regulations reveals the prominence of 

the Tennessee physician’s obligation to 

accurately document. He is required to 

establish a ‘‘written treatment plan 

tailored for the individual needs of the 

patient’’ that considers the patient’s 

‘‘pertinent medical history and physical 

examination as well as the need for 

further testing, consultation, referrals, or 

use of other treatment modalities.’’ It 

also requires the physician to perform a 

‘‘documented periodic review of the 

care . . . at reasonable intervals,’’ and 

‘‘keep [c]omplete and accurate records 

of the care.’’ Id. at 0880–02– 

.14(6)(e)(3)(ii)–(v). 

Common sense itself would refute the 

Respondent’s position. Indications and 

exam results carried forward, perhaps 

for months or even years, defeats the 

whole purpose of medical records, 

which is to inform the practitioner and 

other potential treating practitioners of 

the patient’s true and present condition, 

progression of disease or efficacy of 

treatment. [Dr. Kennedy testified that 


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*TOmitted for brevity. 

35The Respondent noted that his physical exam 

of C.R. was not captured by the video of the 

encounter. The camera was pointed at the wall. Tr. 

581–82. 36Where practitioner asked his patient whether 

there was ‘‘any other medication he took for 

anxiety,’’ and where the practitioner made no effort 

to determine the extent of the patient’s symptoms 

before prescribing Xanax to him, the practitioner 

was not engaged in the legitimate practice of 

medicine but instead was dealing drugs. Henri 

Wetselaar, M.D., 77 FR 57,126, 57,132 (2012). 37The Respondent cautioned that in reviewing 

his electronic medical record, it often referred to 

other records. For example, under history of present 

illness (HPI), he would often reference the initial 

encounter paperwork, as included by reference, in 

the electronic record. Tr. 592. 

here the documentation did not ‘‘make 

sense’’ and was ‘‘in conflict,’’ which 

‘‘present[s] a dangerous situation’’ for 

‘‘other people who look at [the 

records].’’ Tr. 353. Based on this 

testimony, one could conclude that 

wrong records are worse than no records 

at all, as they would mislead other 

treating practitioners. And as Dr. 

Kennedy testified, here ‘‘you have a 

medical record which shows 

consistently documentation . . . that 

did not occur, that is outside the scope 

of acceptable medical practice, and it 

does not support legitimate prescribing 

of scheduled agents.’’ Tr. 652.] 

The Respondent has conceded there 

are factual errors in the subject records. 

Although UC’s chart contains an entry 

that his pharmacy printout was 

reviewed, the Respondent conceded that 

no pharmacy printout was reviewed and 

that such entry was in ‘‘error.’’ Tr. 631– 

32; GX 5 at 6. M.H.’s chart contains the 

inconsistent finding of long-term 

insomnia, but with an entry of sleeping 

well. Tr. 640–41; GX 15 at 47–48. The 

Respondent conceded they were 

inconsistent entries. Tr. 641. 

Additionally, while M.W.’s chart 

reflects he had been dismissed, M.W. 

continued to be seen for months 

afterwards, without any further 

explanation documented in the record. 

Tr. 259–60. And, Respondent reported a 

‘‘history of insomnia for several years’’ 

for M.H.; however, this note first 

appears 19 months into treatment. GX 

15; Tr. 49. 

Additionally, there are conflicts 

between the Respondent’s written notes 

and the electronic medical records. 

Documents UC filled out are missing 

from his chart that was seized from the 

Respondent. The electronic medical 

record for a visit by M.W. does not 

contain the handwritten information 

recorded in GX 10 at 8. Tr. 250–51; GX 

10 at 9. Instead, the results of the 

physical exam mirror those findings 

made for UC, rendering M.W.’s chart not 

credible. Tr. 251–52. The physical exam 

notes written for C.F. revealed 

essentially normal findings, however 

the electronic records for this visit failed 

to include these findings. Tr. 271; GX 11 

at 69. Instead, under physical exam, the 

same language that is duplicated so 

often in the records, appears. Tr. 272. 

Dr. Kennedy noted the hand-written 

exam notes for M.H. did not appear in 

the electronic medical records. Tr. 325– 

36; GX 7 at 68. Instead the same 

physical exam notes duplicated 

throughout the records appear. Tr. 336, 

351. So, at times, verbatim records were 

repeatedly and inaccurately inputted 

into the electronic medical records 

when actual, accurate indications were 

available. 

Dr. Kennedy noted the actual pain 

level was left blank at nine consecutive 

encounters with B.C., suggesting it was 

being added later and that the record 

was being fabricated. Tr. 294–95; GX 13 

at 159; GX 14 at 8. 

For these reasons and those discussed 

below, I find the Government has 

sustained its burden in proving the 

Respondent failed to maintain accurate 

and complete medical records as to the 

subject patients, in violation of TENN. 

COMP. R. & REGS. Rule 0880–02–.14 

(6)(e).*T [I further find that each of the 

relevant prescriptions at issue in this 

matter were issued outside the usual 

course of professional practice and 

beneath the standard of care due to 

Respondent’s failure to maintain 

complete and accurate records.] 

Undercover 

The Government alleges the 

Respondent failed to perform an 

adequate physical exam; take an 

adequate medical history; assess UC’s 

pain, physical and psychological 

function; assess the patient’s history and 

potential for substance abuse, coexisting 

diseases and conditions, and the 

presence of a recognized medical 

indication for the use of oxycodone; and 

failed to create a legitimate written 

treatment plan for UC’s individual 

needs or to discuss the risks and 

benefits of the use of oxycodone with 

UC. At three level one visits, the chart 

falsely reflects the results of physical 

exams, which did not occur. The 

Government alleges the Respondent’s 

continued prescribing of controlled 

substances to UC was without a 

legitimate medical purpose and/or 

outside the usual course of professional 

practice. 

Dr. Kennedy reviewed the chart and 

the undercover videos for UC, the 

undercover agent. Tr. 216–17, 363; GX 

6. Dr. Kennedy acknowledged that in 

scheduling the first visit, the 

Respondent’s staff instructed UC to 

bring certain medical records to his first 

visit, the previous three physician notes, 

his discharge summary, the record of 

the previous three months prescriptions 

and an MRI, an appropriate protocol in 

Dr. Kennedy’s opinion. Tr. 364–65; GX 

3 at 1. 

The Respondent testified that he took 

a medical history, a condition-specific 

physical exam for low back pain, and 

reviewed the MRI (GX 6) of UC. Tr. 575– 

80.35 The Respondent agreed that he 

spent no more than fifteen minutes with 

UC in the examination room. Tr. 621. 

The Respondent maintains that he 

performed the required assessments 

related to pain, physical and 

psychological function, and history and 

potential for drug abuse. Tr. 582. This 

involved reviewing the paperwork UC 

filled out, authenticating that 

paperwork, the triage of UC by staff, 

UDS, and a final review of the 

paperwork by the Respondent with the 

patient. Tr. 583, 584. UC recalled the 

Respondent going over his paperwork 

with him, but could not remember the 

extent of the review. According to UC, 

the triage by other staff was minimal, 

sporadic or non-existent. Tr. 59. UC 

cited Dr. Morgan, who did not exist, in 

his medical history paperwork, yet the 

staff did not discover that fact. None of 

UC’s paperwork could be authenticated, 

as designed. UC’s history was similarly 

designed to be a ‘‘dead end.’’ Tr. 238. 

[Accordingly, I find Respondent’s 

testimony that he authenticated UC’s 

paperwork to lack credibility.] There 

was no review of UC’s psychological 

functioning, although he was diagnosed 

with anxiety.36 The Respondent’s 

instant claims are belied by the record. 

The Respondent explained that a 

patient’s pain is very subjective. After 

reviewing his paperwork, including the 

MRI, examining UC and speaking with 

him, the Respondent claimed that he 

had no reason not to treat him as 

someone who has genuine pain. Tr. 588. 

UC’s statement that he had used 

controlled substances for his pain and 

that ibuprofen was not working 

supported the conclusion that his pain 

was long standing, and warranted a 

Schedule II medication. [Omitted for 

relevance.] 

Dr. Kennedy opined that UC’s 

medical chart did not justify the 

prescribing of controlled substances.37

Tr. 230–31, 240; GX 18 at 1, 3. Although 

there was an actual MRI report of UC, 

Dr. Kennedy found the MRI report 

internally inconsistent [which Dr. 

Kennedy testified should have caused 

Respondent to question the MRI.] Tr. 

387–94. Dr. Kennedy opined that it 


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*U This sentence has been modified for clarity. 

38The Agency has previously found based on 

credible expert testimony that relying exclusively 

on MRI results for prescribing controlled substances 

is unprofessional conduct in the applicable state. 

Zvi H. Perper, M.D., 77 FR 64,131, 64,140 (2012). 

39The Agency has previously found that 

falsifying a patient’s medical record to indicate that 

respondent performed a physical exam but where 

video/audio recordings show that a physical was 

never conducted demonstrate that respondent 

knowingly violated the CSA. Jeri Hassman, M.D., 75 

FR 8194, 8236 (2010); Bernard Wilberforce Shelton, 

M.D., 83 FR 14,028, 14,042 (2018). 

40 ‘‘A practitioner who ignores the warning signs 

that her patients are either personally abusing or 

diverting controlled substances commits ‘acts 

inconsistent with the public interest,’ 21 U.S.C. 

824(a)(4), even if she is merely gullible or naı ̈ve.’’ 

Krishna-Iyer, M.D., 74 FR 460 n.3. 

41 [Omitted for relevance.] 42Administrative Law Judges of the DEA ‘‘lack 

the authority to exercise equitable powers’’ in 

determining whether a registration is consistent 

with the public interest. The Main Pharmacy, 80 FR 

29,022, 29,024 (2015). 

would be outside the usual course of 

professional practice to prescribe 

controlled substances based on this MRI 

alone.*U Tr. 483–86.38 UC was being 

treated for complaints of back pain. 

However, Dr. Kennedy opined that the 

physical exam detailed in the chart was 

not sufficient under Tennessee 

standards, and the exam that was 

performed revealed, essentially, a 

normal back. Tr. 217, 231, 237, 396–97, 

440. On rebuttal, Dr. Kennedy reiterated 

this assessment after listening to the 

Respondent’s explanation. Tr. 651–52. 

The Respondent explained his 

treatment of UC. After the UC filled out 

extensive paperwork, the initial 

examination by the Respondent 

consisted of observing UC, touching his 

back and causing the patient to lift his 

leg. Tr. 217–18, 359–60; GX 6 at 6. Dr. 

Kennedy noted the taking of vital signs 

and a general exam within the chart; 

however, he observed that from viewing 

and listening to the video of this visit, 

such exam was not performed as 

described, or not performed at all. Tr. 

218–19, 379–81; GX 6, 4.39 The prior 

medical history reported by UC was 

facially suspicious and constituted a red 

flag. Tr. 238. UC reportedly came from 

a clinic, which had been shut down, 

and provided medical records from a 

Nurse Practitioner whose license had 

been suspended. Tr. 238. The 

Respondent conceded UC was a 

challenge, as the clinic he reported had 

been closed, and he could not obtain the 

pharmacy information, so the 

Respondent could not verify that source. 

Tr. 583–85. As UC’s prior medical 

records could not be confirmed, the 

Respondent claimed that he prescribed 

a dosage appropriate to a patient just 

starting opioid treatment. Tr. 589–90. 

The Respondent expected his patients 

to be honest and truthful with him 

consistent with the DEA Physician’s 

Manual, which requires patients to be 

honest with their doctors. Tr. 586–87.40

In his Post-hearing Brief, the 

Respondent continues to complain of 

the use of an undercover agent, who 

operated under ‘‘false colors’’ to ensnare 

the Respondent, and his disappointment 

that the Tribunal does not share his 

sentiment. The fact of the matter is, 

there is nothing illegal or improper 

regarding the Government’s use of 

undercover agents.41 Even if I shared the 

Respondent’s sentiment, and opined 

that the use of undercover agents was 

somehow unfair, this is not a court of 

equity.42 We operate strictly by statute 

and regulation [and here the evidence 

clearly establishes that Respondent’s 

prescribing to UC was outside the usual 

course of professional practice and 

beneath the standard of care in violation 

of the CSA and its implementing 

regulations.] 

Dr. Kennedy opined that UC’s 

obfuscation, false and misleading 

statements to the Respondent and staff, 

did not relieve the Respondent’s 

obligation to investigate any suspicious 

circumstances. Tr. 375–78, 382. The 

Respondent misperceives his role. 

[Omitted for relevance.] Physicians 

must be wary of patients seeking 

controlled substances for abuse and 

diversion. Although the Respondent’s 

staff was suspicious of UC’s prior 

records, as they appeared to have been 

altered, their concern appeared to be 

that the UC was perhaps law 

enforcement, ‘‘try[ing] to bring the 

Respondent down,’’ rather than 

someone attempting to divert or abuse 

controlled substances. UC presented as 

a patient with no verified history, his 

paperwork contained indications of 

alteration, he complained of pain 

without overt indications; yet, the 

Respondent opined that the record 

supported his conclusion that UC was 

legitimately in pain. Dr. Kennedy 

disagreed and opined that it is the 

practitioner’s responsibility to 

investigate suspicious circumstances 

and to resolve them prior to prescribing 

controlled substances. 

Dr. Kennedy noted that the physical 

exam included in this first visit by UC 

was repeated verbatim in most of the 

approximately twenty charts he 

reviewed. Tr. 220; GX 7 at 65 (M.B.), GX 

9 at 69 (M.W.). The Respondent 

explained that he performed a physical 

exam at the initial visit of each of his 

patients, as required by the Tennessee 

pain management guidelines. Tr. 594. 

Physical exams thereafter are at the 

discretion of the physician. Tr. 594. 

Although UC had five visits to the 

clinic, only two involved encounters 

with the Respondent. The other three 

visits were ‘‘level one’’ visits, in which 

UC met with the Respondent’s staff 

only. Tr. 622–28, 645–50. Although the 

medical records reflect a physical 

examination took place at the level one 

visits, there was no physical exam. 

Instead, the Respondent explained he 

and his staff had carried forward results 

from prior examinations to later visit 

records with new findings added, which 

Dr. Kennedy opined was not 

permissible. Tr. 623–28; supra ‘‘The 

Analysis, Accurate and Complete 

Medical Records.’’ 

Dr. Kennedy noted UC’s chart 

identified him with a ‘‘long-standing 

history of insomnia and anxiety,’’ 

however the chart contained no 

examination that would support such 

findings. Tr. 233–34; GX 5 at 4. 

Additionally, the reported symptoms of 

the anxiety finding, ‘‘palpitations, 

sweating, dizziness, shaking’’ was 

repeated almost universally throughout 

the medical records reviewed as to 

patients diagnosed with insomnia and 

anxiety. Tr. 233–34. Similarly, the visit 

of October 17, 2017, by UC contains 

extensive medical findings, but the 

video of that visit does not support 

those findings. Tr. 235–37; GX 5 at 5. 

The video does reveal the Respondent 

asking UC, ‘‘how is your sleep’’ to 

which UC responds, ‘‘not good.’’ Tr. 

236. The Respondent then prescribes 

Elavil, or amitriptyline [which is not a 

controlled substance and is not at issue 

in this case.] Tr. 236. Dr. Kennedy made 

a similar observation as to extensive 

medical findings on subsequent visits in 

which UC was not seen by the 

Respondent. Tr. 235–37; GX 5 at 3–5. 

Although the medical records state that 

a physical examination took place at the 

level one visits when no physical 

examination occurred, the Respondent 

explained that it was permissible in 

medical record-keeping to carry forward 

results from prior examinations to later 

visit records, with new findings added. 

Tr. 623–28. Dr. Kennedy disagreed, 

noting that it is never permissible for 

charts to reflect examination results, 

when no exam occurred. Tr. 652–53. At 

UC’s second visit, he was called back to 

the triage room where the nurse asked 

him his weight to which he replied, 

‘‘210,’’ and if his blood pressure was ok 

to which he responded, ‘‘yes.’’ Tr. 59. 

He was not weighed, nor was his blood 

pressure taken. Dr. Kennedy did not 

believe UC’s chart reflected the 

Respondent maintained a truthful and 

accurate record of the treatment. Tr. 

232; GX 3; 4. I credit Dr. Kennedy’s 


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*VOmitted. The ALJ found that the diagnosis of 

C.R. with insomnia was appropriate. The issue 

relevant to this case is whether or not there was a 

recognized medical indication for the use of 

oxycodone. The medication prescribed as a result 

of the insomnia diagnosis was not a controlled 

substance and was not directly at issue in this case. 

Accordingly, it is not necessary to determine 

whether the records contained sufficient evidence 

to support the insomnia diagnosis, because it is not 

relevant to the case. 

*W It is also noted that Respondent did not offer 

any of this testimony in an attempt to rebut the 

Government’s case. 

opinion regarding the results of nonexistent tests. 

On the basis of the deficient physical 

exam, Dr. Kennedy opined that 

prescribing controlled substances to UC 

was not justified. Although the 

Respondent prescribed a much lower 

MME than UC had purportedly been on 

before, it was not consistent with the 

Tennessee standard, which would 

require observation, looking for spasms, 

lumbar range of motion maneuvers, 

straight leg raise test, neurologic exam 

and motor deficits. Tr. 221–25, 239, 

382–83; GX 5 at 6. Other deficiencies in 

the records that caused the controlled 

substance prescriptions for UC to be 

unjustified included the deficiency in 

the prior medical records provided by 

UC. Tr. 228. On a positive note, UC’s 

chart revealed an exploration of 

alternate treatment by prescribing 

Meloxicam, and offering injections. Tr. 

228–29. 

The Respondent testified he prepared 

an adequate written treatment plan with 

appropriate treatment goals and therapy. 

Tr. 590–91. However, Dr. Kennedy 

opined UC’s chart did not include an 

adequate treatment plan. Tr. 229. The 

records reveal a deficient discussion 

regarding the risks and benefits of 

controlled substance medication. Tr. 

231. Dr. Kennedy deemed the diagnosis 

of degenerative disc disease unjustified 

on the basis of the chart and MRI. Tr. 

240–42; GX 5 at 2, 6; GX 6 at 12. I find 

Dr. Kennedy’s assessments credible.*V

[In accordance with Dr. Kennedy’s 

credible and unrebutted expert 

testimony, and for the reasons above, I 

find that the three oxycodone 

prescriptions Respondent issued to UC 

were issued outside the usual course of 

professional practice and beneath the 

standard of care. The basis for Dr. 

Kennedy’s opinion and my finding is 

that Respondent failed to: Take an 

adequate medical history including an 

assessment of UC’s pain history and 

potential for substance abuse; perform 

and document an adequate physical 

examination; and create a legitimate 

written treatment plan for UC’s 

individual needs or to discuss the risks 

and benefits of the use of oxycodone 

with UC. Additionally, and in 

accordance with Dr. Kennedy’s 

testimony, I find that the relevant 

prescriptions issued by Respondent 

were outside the usual course of 

professional practice and beneath the 

standard of care due to Respondent’s 

failure to maintain complete and 

accurate records for UC.] 

Allegations Common to the Five 

Remaining Patients 

With respect to the Respondent’s 

treatment of M.H., C.F., M.P., B.C., and 

M.W. (‘‘the five patients’’), the 

Government alleges the prescriptions for 

controlled substances were not issued in 

the course of professional practice 

inasmuch as the Respondent failed to: 

(1) Take an adequate medical history; 

(2) perform a sufficient physical 

examination; and (3) perform an 

adequate ‘‘assessment and consideration 

of the (patients’] pain, physical and 

psychological function, any history and 

potential for substance abuse, coexisting 

diseases and conditions, and the 

presence of a recognized medical 

indication for the use of a dangerous 

drug or controlled substance.’’ The 

Respondent also failed to create a 

‘‘written treatment plan tailored for the 

individual needs’’ of each of the five 

patients that considered each of the 

patient’s ‘‘pertinent medical history and 

physical examination, as well as, the 

need for further testing, consultation, 

referrals, or use of other treatment 

modalities.’’ The Respondent also failed 

to: (1) ‘‘discuss the risks and benefits of 

the use of controlled substances’’ with 

patients M.H., C.F., M.P., B.C., and 

M.W.; (2) conduct a ‘‘documented 

periodic review of the[ir] care . . . at 

reasonable intervals in view of the 

individual circumstances’’ of each 

patient; and (3) keep ‘‘(c]omplete and 

accurate records of the care provided.’’ 

As such, the Respondent’s conduct 

violated TENN. CODE ANN. § 63–6– 

214(b)(12) and TENN. COMP. R. & 

REGS. 0880–02 .14(6)(e)(3)(i)–(v). 

The Government further alleges the 

prescriptions the Respondent issued to 

M.H., C.F., M.P., B.C., and M.W. failed 

to comply with Tennessee state law in 

that they did not conform to accepted 

and prevailing medical standards in 

Tennessee, and thus, were issued 

outside the usual course of professional 

practice. The Respondent’s conduct, 

viewed as a whole, ‘‘completely 

betrayed any semblance of legitimate 

medical treatment.’’ Jack A. Danton, 

D.O., 76 FR 60,900, 60,904 (2011). 

By issuing these prescriptions for 

controlled substances, the Respondent 

failed to take reasonable steps to guard 

against diversion of controlled 

substances. See David A. Ruben, M.D., 

78 FR at 38,382; Beinvenido Tan, M.D., 

76 FR 17,673, 17,689 (2011); Dewey C. 

Mackay, M.D., 75 FR 49,956, 49,974 

(2010); Physicians Pharmacy, L.L.C., 77 

FR 47,096 (2012). 

Allegations as to Specific Patients 

As to the allegations regarding each of 

the subject patients, in his Posthearing 

Brief (PHB), the Respondent argues the 

Government’s case suffers weakness by 

the Government’s failure to present the 

relevant patients’ testimony, testimony 

of relevant pharmacists, any evaluation 

regarding the volume of the 

Respondent’s prescriptions in relation 

to other physicians, the absence of any 

complaints to law enforcement, and no 

physician testimony that the subject 

patients were seeking detox due to the 

Respondent’s excessive prescribing.*W

In the context of the allegations and 

evidence, none of the above constitutes 

necessary evidence to prove the 

allegations. Indeed, I struggle to see any 

relevance to such evidence in the 

context of the allegations made. 

Patient M.W. 

The Government alleged that the 

Respondent regularly and improperly 

issued prescriptions for large quantities 

and dosages of oxycodone, 

oxymorphone, alprazolam, and 

carispoprodol to Patient M.W. The 

Government further alleged that the 

initial physical examination and 

medical history did not justify the 

continued prescribing of controlled 

substances and the subsequent physical 

examinations did not meaningfully 

evidence any chronic pain condition. 

The Government alleged that the 

Respondent failed to: (1) Order and 

obtain diagnostic studies; and (2) 

adequately address numerous instances 

in which the patient had inconsistent 

drug screens indicating possible 

diversion, abuse, and/or use of illegal 

controlled substances. The Government 

further alleged that much of the medical 

record for M.W. was fabricated and 

appeared to be copied from records of 

other patients, whose records contained 

identically worded assessments. Finally, 

the Government alleged the Respondent 

documented that the patient provided 

‘‘informed consent’’ when no informed 

consent document could be located. 

Additionally, the Government alleged 

the Respondent failed to address 

substantial evidence that M.W. was 

engaged in abuse and/or diversion of 

controlled substances, a violation of 

TENN. CODE ANN. 63–6–214(b)(13). 

In support, the Government offered 

the testimony of its expert, Dr. Kennedy. 


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43The Respondent’s explanation of the Tennessee 

standards was admitted, not as expert testimony, as 

the Respondent had not been qualified as an expert 

to opine on the Tennessee standards, but as 

reflecting his understanding of the guidelines to 

explain why he took or declined to take certain 

action. 

Dr. Kennedy identified his ‘‘chart 

review’’ for M.W. Tr. 243–44; GX 9, 10. 

M.W. was diagnosed with low back 

pain, yet Dr. Kennedy credibly opined 

that the records did not support such 

diagnosis. Tr. 245–46; GX 9 at 14; GX 

10 at 3. The notes did reference back to 

M.W.’s initial encounter. Tr. 441. The 

Respondent testified M.W. was first 

seen in January 2013. Tr. 595. M.W. was 

a gunshot victim to whom the 

Respondent prescribed alprazolam. 

This, according to Respondent, was 

based on the history and physical exam. 

Tr. 593, 635–36; GX 9 at 69. The 

Respondent claimed he obtained a 

medical history, conducted a physical 

exam, performed an adequate pain, 

physical, and psychological assessment, 

history and potential for substance 

abuse. Tr. 596. The Respondent claimed 

that he prepared a written treatment 

plan. Tr. 601. 

Yet, Dr. Kennedy countered there 

were no findings in the record that 

would support a chronic pain condition 

and justify prescribing controlled 

substances. Tr. 246–47. Dr. Kennedy 

found no credible physical exam to 

justify the diagnosis. Tr. 247, 265. Dr. 

Kennedy testified that the Respondent 

did not assess M.W.’s pain level, 

physical and psychological functioning, 

history, potential for drug abuse, or 

coexisting diseases. Tr. 265. The 

Respondent did not follow a legitimate 

written treatment plan. The physical 

exam findings were generally normal 

findings, except for limited range of 

motion at the lumbar spine. Tr. 247; GX 

10 at 7. M.W. reported a pain level, at 

worst, at 10 of 10, and at best, 6 of 10. 

Tr. 248–49; GX 9 at 19; GX 10 at 8. 

M.W.’s reported pain level was 

inconsistent with the generally normal 

results of the physical exam. Tr. 249–50. 

The electronic medical record for this 

visit does not contain the handwritten 

information recorded in GX 10. Tr. 250– 

51; GX 10 at 9. Instead the results of the 

physical exam mirror those findings 

made for UC, rendering M.W.’s chart not 

credible. Tr. 251–52. This finding was 

bolstered by ‘‘wildly’’ inconsistent UDS 

results. Tr. 252–55; GX 9 at 2–4, 9–11, 

84, 96, 102. After a series of inconsistent 

UDS, the Respondent noted in M.W.’s 

chart that M.W. was dismissed from 

pain management with one-month 

notice. Tr. 258; GX 9 at 84. Yet, at the 

same visit in which he had been 

notified he will be dismissed, the 

history of present illness reports the 

patient is compliant and consistent. Tr. 

258. Dr. Kennedy deemed the chart not 

credible, accordingly. Tr. 259. However, 

despite being dismissed, M.W. 

continued to be seen for months 

afterwards without any further 

explanation in the medical records. Tr. 

259–60. 

The Respondent explained that the 

evaluation of the patient’s potential for 

drug abuse is an ongoing evaluation 

with UDS, involving office screens, 

confirmatory lab screens, and pill 

counts. Tr. 596–98, 600. Respondent 

testified that once a lab-confirmed 

inconsistent UDS is discovered, the 

Respondent initiates a dismissal 

process. Tr. 598–600. The Tennessee 

pain management guidelines leave it to 

the physician’s discretion on the 

handling of confirmed inconsistent UDS 

results. Tr. 598–99.43 The Respondent 

gives the patient a month to come into 

compliance. Tr. 600. If he has a 

consistent UDS within the month, the 

patient is permitted to remain in 

treatment. Tr. 601. The Respondent 

claimed was able to bring M.W. back 

into compliance through counseling, 

however, the chart only documents that 

the patient was counseled as to the 

inconsistent UDS without identifying 

any specific information. Tr. 637–38. Dr. 

Kennedy later conceded that M.W. was 

reinstated consistent with the 

Respondent’s described office protocol. 

Tr. 459–60. The Respondent continued 

to prescribe him alprazalam, 

amitriptyline, oxycodone, oxymorphone 

and Soma. As noted earlier, 

Respondent’s documentation of these 

events and his handling of M.W.’s 

inconsistent UDS was clearly outside 

the Tennessee standards. 

Regarding the alprazolam 

prescriptions, Dr. Kennedy found it 

unjustified based on the information 

supporting the anxiety diagnosis. Tr. 

260–61, 442–44; GX 9 at 85. Dr. 

Kennedy noted the indications for 

anxiety were not supported by the 

findings within the chart, and mirrored 

those in the charts for UC and other 

patients. Tr. 261–62. In his PHB, the 

Respondent argued that Dr. Kennedy 

conceded a gunshot victim would have 

PTSD; however, I credit Dr. Kennedy’s 

opinion that the chart did not justify the 

alprazolam prescription. 

Although Dr. Kennedy opined M.W. 

should have been physically examined 

periodically during his treatment, the 

charts suggest he was not examined 

again following his first examination. 

Tr. 262. Dr. Kennedy further opined that 

as M.W. was a 25-year-old diagnosed 

with degenerative disc disease, the 

Tennessee standards would require 

diagnostic testing, such as an MRI to 

confirm the diagnosis. Tr. 262, 447–48. 

Dr. Kennedy found M.W.’s chart ‘‘not 

credible and fabricated.’’ Tr. 263–64, 

266; GX 10 at 5, 23. He noted that of 93 

of 98 total visits shared the identical 

findings for the physical exams and 

ROS. Tr. 264. Similarly, Dr. Kennedy 

found the diagnosis of insomnia not 

credible. Tr. 264. A finding of drug 

abuse and chemical dependency would 

have been supportable, but such 

indications were not sufficiently 

addressed by the Respondent. Tr. 264– 

65. The credible findings within M.W.’s 

chart did not support the prescribing of 

controlled substances, and the subject 

prescriptions were issued outside the 

usual course of professional practice. Tr. 

267–68. I credit Dr. Kennedy’s opinions 

in finding the Respondent’s subject 

actions fell below the Tennessee 

standards, and the controlled substances 

were prescribed outside the Tennessee 

standards. 

[In accordance with Dr. Kennedy’s 

credible and unrebutted expert 

testimony, and for the reasons above, I 

find that the twenty-six identified 

prescriptions for alprazolam, 

carisoprodol, oxycodone, and 

oxymorphone that Respondent issued to 

M.W. were issued outside the usual 

course of professional practice and 

beneath the standard of care. The basis 

for Dr. Kennedy’s opinion and my 

finding is that Respondent failed to: 

Take an adequate medical history 

including an assessment of M.W.’s pain 

history and potential for substance 

abuse; perform and document an 

adequate physical examination; and 

create a legitimate written treatment 

plan for M.W.’s individual needs. Tr. 

265. In accordance with Dr. Kennedy’s 

testimony, I further find that the 

relevant prescriptions issued by 

Respondent were outside the usual 

course of professional practice and 

beneath the standard of care due to 

Respondent’s failure to maintain 

complete and accurate records for M.W. 

Tr. 265–66. Finally, in accordance with 

Dr. Kennedy’s testimony, I find that 

M.W. exhibited evidence of drug abuse 

or chemical dependency that was not 

adequately addressed by Respondent. 

Tr. 264–64.] 

Patient C.F. 

The Government alleged that from 

August 2014 through August 2018, the 

Respondent regularly issued 

prescriptions for oxycodone and 

alprazolam to C.F. The Government 

further alleged that no credible physical 

examination had been performed on 

C.F. and that the exam results, as well 


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44The Agency has previously found based on the 

expert testimony that where the respondent: (1) 

‘‘gave inadequate examinations or none at all;’’ (2) 

ignored the results of tests; and (3) ‘‘took no 

precautions against misuse and diversion’’ of 

controlled substances, the evidence established that 

the respondent exceeded the bounds of professional 

practice. Carlos Gonzalez, M.D., 76 FR 63,118, 

63,141 (2011) (citing United States v. Moore, 423 

U.S. 122, 135, 142–43 (1975)). 

as medical history, did not justify the 

continued prescribing of controlled 

substances. The Government further 

alleged that no meaningful follow-up 

physical exam was repeated, that 

supported diagnostic studies were not 

ordered, and that the Respondent failed 

to determine a chronic pain etiology. 

The Government further alleged that the 

Respondent ignored suspicious drug 

screen results which indicated illegal 

drug use. The Government alleged that 

much of the medical record for C.F. was 

fabricated and seemed to be copied from 

records of other patients whose records 

contained identically worded 

assessments. Although the Respondent 

documented that the patient provided 

‘‘informed consent,’’ no informed 

consent document could be located. 

Additionally, the Government alleged 

the Respondent failed to address 

substantial evidence that C.F. was 

engaged in abuse and/or diversion of 

controlled substances, a violation of 

TENN. CODE ANN. 63–6–214(b)(13). 

The Respondent explained that 

Patient C.F. had a stab wound to the 

chest, requiring heart surgery, resulting 

in residual chronic pain. Tr. 601. The 

Respondent reported he took a medical 

history, performed a physical exam, an 

adequate pain, physical and 

psychological assessments, and 

evaluated her history and potential for 

substance abuse. Tr. 601–02. The 

Respondent noted that he had the 

benefit of confirmatory records from 

Vanderbilt University Medical Center. 

Tr. 602. 

Dr. Kennedy testified that the chart 

revealed C.F. was being treated for 

chronic pain due to trauma, and 

unspecified inflammatory 

polyarthropathy. Tr. 268; GX 12. Dr. 

Kennedy conceded C.F. had suffered 

stab wounds to the chest requiring open 

heart surgery, which can cause longterm neuropathic pain. Tr. 451–53. 

Although in his PHB, the Respondent 

characterizes Dr. Kennedy’s criticism of 

the Respondent’s subject treatment as 

failing to order tests, Dr. Kennedy had 

more extensive criticism than that. Dr. 

Kennedy opined that the history, 

physical exams, the pain and physical 

and psychological functioning, the 

potential for substance abuse, written 

treatment plan, and alternate treatment 

considerations were each inadequate, 

and did not justify the controlled 

substance prescriptions.44 Tr. 269–70, 

285, 455; GX 11 at 106; GX 12, at 7. Dr. 

Kennedy noted the Respondent did not 

discuss the risks and benefits of 

controlled substance medications. Tr. 

285. The physical exam notes revealed 

essentially normal findings, however 

the electronic records for this visit failed 

to include these findings. Tr. 271; GX 11 

at 69. Instead, under physical exam, the 

same language duplicated so often in 

the records, is included. Tr. 272. There 

were no credible follow up physical 

exams, supporting studies, and no 

reasonable pain etiology. Tr. 272; GX 12 

at 5, 6. The ROS indications were 

identically repeated in other charts. Tr. 

272–73. Dr. Kennedy noted that the 

language in the general exam, ‘‘patient 

is alert and oriented’’ is similarly 

repeated 102 times throughout the 

records. Dr. Kennedy reported 

inconsistent UDSs for C.F., collected on 

July 2, 2018, and thereafter. Tr. 273–80, 

282; GX 11 at 9, 23, 24, 25, 28, 33, 44, 

47, 54, 69, 78, 111, 117; GX 20. Even 

more concerning, C.F.’s UDS result was 

negative for all of the medications she 

was prescribed. Tr. 275–77. C.F. also 

tested positive for cocaine and 

marihuana. Tr. 277, 280. An 

inconsistent drug screen on July 26, 

2017, is not mentioned in the medical 

records. Tr. 288–89. Although the 

records repeatedly noted that, ‘‘patient 

counseled at length on unsatisfactory 

UDS,’’ Dr. Kennedy credibly testified 

that this was insufficient under 

Tennessee standards to address C.F.’s 

drug abuse and diversion. Tr. 280, 284. 

I credit Dr. Kennedy’s assessment 

regarding the Respondent’s deficient 

handling of C.F.’s ongoing drug abuse 

and diversion. 

On May 3, 2017, C.F. tested positive 

for buprenorphine, a medication 

typically used to treat opioid use 

disorder. Tr. 281–82. The Respondent 

had not prescribed it. Although the 

Respondent explained that the MED 

prescribed to C.F. was a relatively low 

dose, Tr. 603–05; in light of C.F.’s 

continued drug abuse and diversion, Dr. 

Kennedy opined that the Respondent 

continued to improperly prescribe 

controlled substances without making a 

bona fide effort to cure C.F.’s addiction. 

Tr. 284. I agree. 

The Respondent prescribed 

alprazolam for anxiety and insomnia. 

Tr. 286; GX 11 at 39. However, the 

supporting indications are identical to 

the other patients who were diagnosed 

with anxiety and insomnia. Tr. 286–87. 

The Respondent did not maintain 

complete and accurate records for C.F. 

Tr. 286. Dr. Kennedy concluded that the 

controlled substance prescriptions 

issued to C.F. were outside the usual 

course of professional practice. Tr. 287. 

For the reasons detailed, I concur. I 

credit Dr. Kennedy’s expert opinions 

and find that the Respondent’s subject 

prescribing to C.F. was in violation of 

Tennessee regulations, and below the 

Tennessee standards. 

[In accordance with Dr. Kennedy’s 

credible and unrebutted expert 

testimony, and for the reasons above, I 

find that the sixteen identified 

prescriptions for alprazolam and 

oxycodone that Respondent issued to 

C.F. were issued outside the usual 

course of professional practice and 

beneath the standard of care. The basis 

for Dr. Kennedy’s opinion and my 

finding is that Respondent failed to: 

Take an adequate medical history 

including an assessment of C.F.’s pain 

history and potential for substance 

abuse; perform and document an 

adequate physical examination; and 

create a legitimate written treatment 

plan for C.F.’s individual needs and 

discuss the risks and benefits of using 

controlled substances. In accordance 

with Dr. Kennedy’s testimony, I further 

find that the relevant prescriptions 

issued by Respondent were outside the 

usual course of professional practice 

and beneath the standard of care due to 

Respondent’s failure to maintain 

complete and accurate records for C.F. 

Finally, in accordance with Dr. 

Kennedy’s testimony, I find that C.F. 

exhibited evidence of drug abuse or 

chemical dependency that was not 

adequately addressed by Respondent.] 

Patient B.C. 

The Government alleges that from 

August 2014 through August 2018, the 

Respondent regularly issued 

prescriptions for large quantities of 

oxycodone, oxymorphone, alprazolam, 

and carisoprodol to B.C. The 

Government further alleged that no 

credible physical examination had been 

performed on B.C. and that the exam 

results, as well as medical history, did 

not justify the continued prescribing of 

controlled substances. The Government 

further alleged that no meaningful 

follow-up physical exam was repeated, 

that confirmatory diagnostic studies 

were not ordered, and that the 

Respondent failed to determine a 

chronic pain etiology. The Government 

further alleged that the Respondent 

ignored suspicious drug screen results 

which indicated illegal drug use. The 

Government alleged that much of the 

medical record for B.C. was fabricated 

and seemed to be copied from records 

of other patients whose records 


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45The Respondent noted the pain management 

guidelines have changed since then. Tr. 605. [It 

appears that Tennessee has been regulating 

authority for physicians to prescribe for treatment 

of pain since 2014. As the changes seem to have 

taken place well before the prescribing of the 

controlled substances at issue in this case, this 

information is not material to my decision.] 

46 I ruled the evidence of lost files in 2014 

inadmissible as unnoticed and not reasonably 

anticipated by the Government, representing 

surprise. 

contained identically worded 

assessments. Although the Respondent 

documented that the patient provided 

‘‘informed consent,’’ no informed 

consent document could be located. 

Dr. Kennedy identified his summary 

chart for B.C. Tr. 289–90; GX 13; GX 14. 

B.C. was being treated for chronic pain 

syndrome. B.C. was referred from the 

Clark County Jail, on December 19, 

2012,45 a potentially challenging 

patient. Tr. 458–59. Although not 

revealed in the chart, Respondent 

testified that B.C. had previously been a 

patient of the Respondent. The 

Respondent maintained that he took a 

medical history, performed a physical 

exam, adequate pain, physical and 

psychological assessments, and 

evaluated his history and potential for 

substance abuse, and prepared a written 

treatment plan. Tr. 608. 

Dr. Kennedy disagreed, claiming the 

Respondent did not take an adequate 

medical history. Tr. 304. Although a 

physical exam was evident, Dr. 

Kennedy testified that it was 

insufficient and non-supportive to 

justify prescribing the medications 

prescribed. Tr. 290–91, 304; GX 13 at 

169; GX 14 at 7; GX 22. Dr. Kennedy 

asserted the Respondent did not make 

an adequate assessment of pain, and 

physical and psychological function, of 

history of substance abuse, coexisting 

diseases and conditions, written 

treatment plan or alternate treatments. 

Tr. 304–06. He did not conduct any 

periodic reviews, or discuss the risks 

and benefits of the use of controlled 

substances. Tr. 306. There were no 

radiologic studies ordered. Tr. 303. 

There were no prior medical records 

ordered or obtained, but the records did 

include hospital records. Tr. 303, 459– 

60. Although the Respondent described 

the extensive forms each patient is 

required to fill out at the initial visit, 

some of the described forms, which 

were referenced in B.C.’s chart, were 

missing from the Respondent’s records. 

Tr. 628–29; GX 13 at 5. The Respondent 

explained that some records were lost in 

2014.46 Tr. 630. However, the missing 

records were not recreated despite B.C. 

being a long-term patient. Tr. 630. 

The Respondent explained why he 

obtained and kept pharmacy printouts 

in his records. They are easier and 

quicker to obtain than medical records. 

Tr. 606. The pharmacy printout informs 

how long the patient has been 

prescribed medications, changes in 

dosage, and the prescriber. Tr. 607. 

Dr. Kennedy noted indications from 

the ROS were duplicated throughout the 

records. Of 141 encounters, the ROS 

language was duplicated 140 times, 

while the physical exam language was 

duplicated 134 times. Tr. 291–92. B.C. 

had serious health issues, including 

Hodgkins lymphoma, a cancer of the 

lymphatic system. Tr. 293. Dr. Kennedy 

identified a document in the chart 

indicating B.C. had been dismissed from 

a prior physician, a clear red flag which 

was not resolved. Tr. 293–94; GX 13 at 

188. 

Dr. Kennedy noted the actual pain 

level was left blank at nine consecutive 

encounters, suggesting it is being added 

later, a further indication of fabricated 

records. Tr. 294–95; GX 13 at 159; GX 

14 at 8. Dr. Kennedy opined the 

Respondent did not maintain accurate 

and complete records. Tr. 306. One 

entry reveals, ‘‘patient lied about his 

prescriptions,’’ an alarming red flag left 

unaddressed by the Respondent. Tr. 

296; GX 13 at 169. Despite noting that 

the ‘‘patient lied,’’ the Respondent 

issued controlled medications and 

‘‘held’’ up UDS for a month. Tr. 297. 

This is outside the usual course of 

professional practice. B.C. continued to 

have inconsistent UDS results, which 

were insufficiently addressed by the 

Respondent. Tr. 297–98; GX 13 at 33, 

79, 150, 155, 156, 158, 164, 165. The 

Respondent countered that each of the 

Respondent’s patient records contained 

the instruction, ‘‘rule out doctor 

shopping’’, which was a prompt to 

review the Tennessee PDMP to 

determine if the patient was obtaining 

controlled substances from multiple 

physicians. Tr. 608. Although ruling out 

doctor shopping is appropriate and 

necessary action, it does not excuse the 

failure to adequately address B.C.’s drug 

abuse and other red flags. I credit Dr. 

Kennedy’s findings, and I find that the 

information contained in B.C.’s chart 

did not justify the controlled 

medications prescribed by the 

Respondent, nor support that they were 

issued in the usual course of 

professional practice. Tr. 307–08. 

[In accordance with Dr. Kennedy’s 

credible and unrebutted expert 

testimony, and for the reasons above, I 

find that the eighteen identified 

prescriptions for alprazolam, 

oxymorphone, carisoprodol, and 

oxycodone that Respondent issued to 

B.C. were issued outside the usual 

course of professional practice and 

beneath the standard of care. The basis 

for Dr. Kennedy’s opinion and my 

finding is that Respondent failed to: 

Take an adequate medical history 

including an assessment of B.C.’s pain 

history and potential for substance 

abuse; perform and document an 

adequate physical examination; and 

create a legitimate written treatment 

plan for B.C.’s individual needs and 

discuss the risks and benefits of using 

controlled substances. In accordance 

with Dr. Kennedy’s testimony, I further 

find that the relevant prescriptions 

issued by Respondent were outside the 

usual course of professional practice 

and beneath the standard of care due to 

Respondent’s failure to maintain 

complete and accurate records for B.C. 

Finally, in accordance with Dr. 

Kennedy’s testimony, I find that B.C.’s 

records included unresolved 

inconsistent drug screens, a red flag that 

was not adequately addressed by 

Respondent.] 

Patient M.H. 

The Government alleges that from 

August 2014 through February 2018, the 

Respondent regularly issued 

prescriptions for large quantities of 

alprazolam, carisoprodol, oxycodone, 

and oxymorphone to M.H. The 

Government further alleges the 

Respondent diagnosed M.H. with 

‘‘chronic pain syndrome’’ even though 

the Respondent made no attempt to 

diagnose a specific pain etiology. The 

Government further alleged that that the 

Respondent failed to obtain diagnostic 

studies and current medical records 

from M.H.’s other medical providers 

and that the results of the physical 

examination and medical history did 

not justify the continued prescribing of 

controlled substances. The Government 

alleged the Respondent ignored a major 

surgical intervention that occurred in 

September 2016 as well as an abnormal 

drug screen. As such, the Government 

concluded that much of the medical 

record for M.H. was fabricated and 

seemed to be copied from records of 

other patients whose records contained 

identically-worded assessments. The 

Respondent also documented that the 

patient provided ‘‘informed consent’’ 

when no informed consent document 

could be located. The Government 

alleged that, in some cases, the 

Respondent failed to repeat certain 

physical exams after the initial 

encounter with M.H., despite the fact 

the Respondent provided him with 

prescriptions for controlled substances 

for more than three years. 

The Respondent explained Patient 

M.H. presented with a post gunshot 

wound to the abdomen and chronic low 


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back pain secondary to degenerative 

disc disease. Tr. 608. According to 

Respondent, he had already been treated 

for pain management. He had a history 

of extensive spinal surgery at Vanderbilt 

University Medical Center, including a 

laminectomy. Tr. 609–11. The 

Respondent testified that he prescribed 

a lower MME than the surgeon 

prescribed post-operative at Vanderbilt. 

Tr. 611. 

Dr. Kennedy identified his summary 

chart for Patient M.H. Tr. 309; GX 15; 

GX 16. The chart reveals M.H. was being 

treated for chronic pain syndrome. GX 

15 at 62, 63. The physical exam 

indications are identical to those 

repeated throughout the medical records 

and, in Dr. Kennedy’s opinion, do not 

support any chronic pain diagnosis. Tr. 

311. The records reveal M.H. suffered a 

gunshot wound in 2008, and although 

serious, Dr. Kennedy opined that would 

not in itself justify pain medication 

eight years later. Tr. 323. Dr. Kennedy 

assessed the Respondent’s treatment as 

outside the scope of acceptable medical 

practice because the Respondent did not 

make an adequate assessment of pain, 

and physical and psychological 

function, of medical history, of history 

of substance abuse, coexisting diseases 

and conditions, periodic review of care, 

written treatment plan or alternate 

treatments. Tr. 312, 326–28. The 

Respondent did not conduct any 

periodic reviews, or discuss the risks 

and benefits of the use of controlled 

substances. Tr. 328. M.H. had 

inconsistent UDSs. Tr. 314–20; GX 15 at 

36, 39, 40, 47, 49, 53, 56, 63. Although 

several inconsistent UDS were noted in 

the chart, there were typically no notes 

of discussions. The Respondent failed to 

adequately address the UDS. Tr. 314–20. 

During his treatment with the 

Respondent, M.H. underwent a serious 

and complex spinal surgery, a major 

surgery. Tr. 320–22, 462–63; GX 15 at 

26; GX 16, at 9. M.H. was seen by the 

Respondent the day after his release 

from the hospital. GX 15 at 48. Despite 

his recent, major surgery, there is no 

mention of the surgery in the encounter 

notes. Tr. 322–23. The encounter notes 

are identical to all the other encounter 

notes for M.H. Tr. 323; GX 15 at 48. The 

Respondent conceded his medical 

findings as to Patient M.H. for the visit 

just prior to M.H.’s major back surgery 

are the same as the Respondent’s 

findings for the visit the day after the 

surgery. Tr. 637–38; GX 15 at 48–50. 

The Respondent explained that the 

subject findings were based on 

‘‘history.’’ Tr. 638. Put another way, 

Respondent carried forward the exam 

indications from the pre-surgery visit to 

the post-surgery visit. 

There is no updated physical exam, as 

Dr. Kennedy opined would be required. 

Tr. 324. The PE and HPI notes are the 

same as those the four months prior to 

the spinal surgery, which is not 

credible. Tr. 324–25, 491–92; GX 15 at 

49, 51. Dr. Kennedy opined that the 

Respondent did not maintain accurate 

and complete records as to M.H. Tr. 328. 

Dr. Kennedy reviewed the prescriptions 

issued. Tr. 325; GX 19 at 1–13. He 

opined that the chart, including the 

number of inconsistent UDS, reveals 

that M.H. was addicted to controlled 

substances, yet the Respondent 

continued prescribing them without 

making a bona fide effort to cure the 

addiction. Tr. 325. The Respondent 

conceded the chart reports that M.H. has 

been ‘‘compliant,’’ however, on the next 

page of the chart, it reports M.H. had an 

inconsistent UDS. Tr. 638–40; GX 15 at 

48–49. The Respondent explained that 

the inconsistent UDS related to the 

point of care test, not the confirmatory 

lab test, so the chart was accurate in that 

instance. Tr. 640. However, even if the 

inconsistent UDS result were at the 

point of care, as discussed supra, the 

record discloses there were eight of 

them, some of which went completely 

unaddressed within the records. I credit 

Dr. Kennedy’s opinion that the 

Respondent’s failure to resolve the red 

flag arising from inconsistent UDS 

rendered the subsequent prescribing 

outside the Tennessee standard of care. 

Dr. Kennedy opined the subject 

prescriptions were issued outside the 

usual course of professional practice. Tr. 

329–30, 493. I credit Dr. Kennedy’s 

findings, and find that the Respondent’s 

controlled substance prescribing were in 

violation of Tennessee regulations and 

the Tennessee standards. 

[In accordance with Dr. Kennedy’s 

credible and unrebutted expert 

testimony, and for the reasons above, I 

find that the approximately fifteen 

identified prescriptions for alprazolam, 

oxycodone, and oxymorphone that 

Respondent issued to M.H. were issued 

outside the usual course of professional 

practice and beneath the standard of 

care. The basis for Dr. Kennedy’s 

opinion and my finding is that 

Respondent failed to: Take an adequate 

medical history including an assessment 

of M.H.’s pain history and potential for 

substance abuse; perform and document 

an adequate physical examination; and 

create a legitimate written treatment 

plan for M.H.’s individual needs and 

discuss the risks and benefits of using 

controlled substances. In accordance 

with Dr. Kennedy’s testimony, I further 

find that the relevant prescriptions 

issued by Respondent were outside the 

usual course of professional practice 

and beneath the standard of care due to 

Respondent’s failure to maintain 

complete and accurate records for M.H. 

Finally, in accordance with Dr. 

Kennedy’s testimony, I find that M.H. 

exhibited evidence of drug abuse or 

chemical dependency that was not 

adequately addressed by Respondent.] 

Patient M.P. 

The Government alleges that from 

September 2016 through April 2018, the 

Respondent regularly issued 

prescriptions for large quantities of 

oxycodone and oxymorphone to M.P. 

The Government alleges that the 

Respondent failed to request and obtain 

past medical records, the Respondent 

failed to order any radiographic studies, 

and that the physical examinations of 

M.P., including follow-up exams, were 

substandard and not credible. The 

Government alleged that the 

Respondent failed to document any 

evidence to support a pain etiology and 

that the Respondent failed to properly 

address M.P.’s substance abuse disorder 

despite the fact that she suffered a 

heroin overdose in the Respondent’s 

waiting room. As a result, the 

Government alleged there were no 

objective findings to justify the 

continued prescribing of oxycodone and 

oxymorphone. The Government alleges 

that much of the medical record for M.P. 

was fabricated and seemed to be copied 

from records of other patients whose 

records contained identically worded 

assessments. The Respondent also 

documented that the patient provided 

‘‘informed consent’’ when no informed 

consent document could be located in 

the medical record. Additionally, the 

Government alleged the Respondent 

failed to address substantial evidence 

that M.P. was engaged in abuse and/or 

diversion of controlled substances, a 

violation of TENN. CODE ANN . § 63– 

6–214(b)(13). 

The Respondent explained Patient 

M.P. was being managed for chronic 

pain. In her initial visit, she reported 

conflicting information regarding 

whether she had been in drug rehab 

treatment. Tr. 641–42; GX 7. The 

Respondent explained that he could 

only rely on the information provided 

by the patient. Tr. 642. The Respondent 

claimed that he took a medical history, 

performed a physical exam, adequate 

pain, physical and psychological 

assessments, and evaluated her history 

and potential for substance abuse, and 

prepared a written treatment plan. Tr. 

615–17. 

Dr. Kennedy countered, noting he 

reviewed the prescriptions issued. Tr. 

348–49; GX 21. He opined that the 

chart, including the number of 


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inconsistent UDS, reveals that M.P. was 

addicted to controlled substances, yet 

the Respondent continued prescribing 

them without making a bona fide effort 

to cure the addiction, until after she 

overdosed on heroin. Tr. 348. The 

subject prescriptions, as well as those 

prescribed to the other charged patients, 

were dangerous and issued outside the 

usual course of professional practice. Tr. 

352, 488–89. 

Dr. Kennedy reported M.P. was being 

treated for low back, neck, hip and 

shoulder pain. Tr. 331; GX 8. She was 

later diagnosed with degenerative disc 

disease and right shoulder pain. 

Although a physical exam was 

performed, it was inadequate to 

substantiate the diagnoses. Tr. 331–34, 

339–40, 343; GX 7 at 2. A mechanical 

shoulder exam and range of motion back 

and neck exam should have been 

performed. Dr. Kennedy opined that 

Respondent did not make an adequate 

assessment of pain, nor physical and 

psychological function, of medical 

history, of history of substance abuse, 

coexisting diseases and conditions, 

periodic review of care, written 

treatment plan nor alternate treatments. 

Tr. 349–51. He did not conduct any 

periodic reviews, nor discuss the risks 

and benefits of the use of controlled 

substances. Tr. 349–50. Dr. Kennedy 

stated that M.P.’s employment as a 

server, working 45–60 hours per week is 

inconsistent with her ‘‘occupational 

disability’’ score of 9 or 10, a significant 

conflict. Tr. 344–45; GX 7 at 3, 9, 10. Dr. 

Kennedy noted the hand-written exam 

notes did not appear in the electronic 

medical records. Tr. 325–36; GX 7 at 68. 

Instead the PE notes duplicated 

throughout the records appears. Tr. 336, 

351. The pain level is reported as 9, 

which is inconsistent with the PE 

indications. Dr. Kennedy indicated 

notes generated at the initial visit 

appeared to be a reminder to obtain 

certain prior medical records from Dr. 

M. Tr. 337, 468; GX 7 at 1, 68. Those 

same notes appear in the record 

repeatedly thereafter. Tr. 337; GX 7 at 

59. Other than the requested pharmacy 

report, the prior records were never 

obtained. Tr. 338–39. The Respondent 

explained that in September of 2016, the 

Respondent requested dismissal 

records, an X-ray, and an MRI from Dr. 

M. Tr. 642–44; GX 7 at 48. Yet, eighteen 

months later, the Respondent still had 

not received the requested records. Tr. 

644; GX 7 at 59. There is no 

documentary proof records were ever 

requested. 

Dr. Kennedy concluded the 

Respondent did not maintain accurate 

and complete records as to M.P. Tr. 350. 

At M.P.’s initial visit a UDS was 

performed revealing inconsistent 

results, which were never addressed in 

the records. Tr. 338; GX 7 at 19, 68. 

Notes reveal M.B. had been terminated 

from a prior physician, a red flag. Tr. 

343. The records did reveal a 

monitoring of the Tennessee PDMP, and 

a successful pill count, both positive 

steps by the Respondent. Tr. 470. There 

were emergency room notes which 

revealed she was admitted on April 17, 

2018 and released on April 18 for 

apparent heroin overdose, which 

occurred in the Respondent’s waiting 

room. Tr. 340–41; GX 7 at 25. 

The Respondent explained those 

events. He testified that M.P. came to 

the clinic overdosing on heroin. Tr. 342, 

611–12. She had to be resuscitated until 

EMS was able to reverse the effects of 

heroin with Narcan. Tr. 612. In the postoverdose notes the Respondent took an 

extensive history again regarding her 

drug use. Following the heroin 

overdose, the determination was made 

that she needed treatment of Suboxone 

and no further opioid prescriptions. Tr. 

616. He directed she cannot be on pain 

management but must be on opioid 

abuse treatment. So, the Respondent 

started her on Suboxone. Tr. 613. The 

Respondent explained his 

understanding of Suboxone induction. 

The first type of induction therapy is by 

observation. He stated that you give the 

patient Suboxone and observe them 

until they reach the point of 

withdrawal. The other form of induction 

is to give the patient Suboxone and send 

them home without observation by the 

physician. Tr. 612–14. According to 

Respondent, M.P. was initially receptive 

to drug treatment, but later changed 

clinics. Tr. 615. 

Dr. Kennedy viewed Respondent’s 

prescribing of Suboxone as dangerous 

and outside the standard of care. Tr. 

342, 371–73, 465–66. As the patient was 

shown to be on heroin, a UDS would be 

necessary to determine if she had heroin 

in her system before prescribing 

buprenorphine (Suboxone), which in 

conjunction with heroin could result in 

permanent withdrawal. Tr. 343. The 

Respondent argues in his PHB that a 

successful UDS was conducted. 

However, I do not find a successful UDS 

in the record prior to the Respondent 

prescribing Suboxone. There were 

inconsistent UDS in the records for M.P. 

Tr. 346–; GX 7 at 48, 59. I credit Dr. 

Kennedy’s findings. The Respondent’s 

prescribing to M.B. was in violation of 

Tennessee regulations and Tennessee 

standards. The Suboxone prescription 

without determining her heroin level 

was dangerous and outside the course of 

professional practice. The Respondent’s 

failure to timely address M.P.’s 

inconsistent UDS results was outside 

the Tennessee standards. 

[In accordance with Dr. Kennedy’s 

credible and unrebutted testimony, and 

for the reasons above, I find that the 

sixteen identified prescriptions for 

oxycodone and oxymorphone and the 

prescription for buprenorphine that 

Respondent issued to M.P. were issued 

outside the usual course of professional 

practice and beneath the standard of 

care. The basis for Dr. Kennedy’s 

opinion and my finding is that 

Respondent failed to: Take an adequate 

medical history including an assessment 

of M.P.’s pain history and potential for 

substance abuse; perform and document 

an adequate physical examination; and 

create a legitimate written treatment 

plan for M.P.’s individual needs and 

discuss the risks and benefits of using 

controlled substances. In accordance 

with Dr. Kennedy’s testimony, I further 

find that the relevant prescriptions 

issued by Respondent were outside the 

usual course of professional practice 

and beneath the standard of care due to 

Respondent’s failure to maintain 

complete and accurate records for M.P. 

Finally, in accordance with Dr. 

Kennedy’s testimony, I find that M.P. 

exhibited evidence of drug abuse or 

chemical dependency that was not 

adequately addressed by Respondent 

until after she overdosed in his office.] 

Material Falsification 

In its GSPHS, the Government alleged 

that, on November 6, 2019, the 

Respondent made a material 

misrepresentation in his renewal 

application for his Tennessee-based 

DEA COR, W18070589C. Specifically, in 

response to liability question three, the 

Respondent answered ‘‘no,’’ which he 

knew or should have known to be a 

false response. GX 26. Liability question 

three queries whether the applicant has 

ever surrendered for cause, or had a 

state professional license or controlled 

substance registration revoked, 

suspended, denied, restricted, or placed 

on probation, or have any such action 

pending. An affirmative answer to 

question 3 would trigger an 

investigation by a diversion investigator 

whether to issue the registration or to 

deny it. The Respondent answered ‘‘No’’ 

to question 3. 

In support, the Government cites to 

the State of Tennessee Department of 

Health, Notice of Charges and 

Memorandum for Assessment of Civil 

Penalties, dated May 2018. GX 29. [In 

this document, the state requested that 

‘‘Respondent’s certificate to operate a 

Pain Management Clinic . . . be 

suspended, revoked, or otherwise 

disciplined.’’ GX 29, at 25.] A year later 


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*XOmitted text. The Government also alleged 

that Respondent’s surrender of his pain clinic’s 

license also warranted an affirmative response to 

question 3 on Respondent’s personal application. I 

find that I do not need to reach a decision on this 

evidence as the Government has already presented 

ample evidence that Respondent materially falsified 

his application when he failed to report that his 

authority to dispense controlled substances was 

restricted. 

47 [Omitted the original text containing this 

footnote.] 

*Y This language replaces the ALJ’s original 

analysis for clarity. 

*ZOmitted ALJ’s discussion of the pain clinic’s 

license. See supra n. *X. I have also consolidated 

the ALJ’s original section entitled ‘‘Conditions of 

Stay’’ with the preceding paragraph for brevity. 

48 [This text replaces the ALJ’s original text and 

omits his original footnote for clarity.] 

49 [Where the record contains no evidence of a 

recommendation by a state licensing board that 

absence does not weigh for or against revocation. 

See Roni Dreszer, M.D., 76 FR 19,434, 19,444 (2011) 

(‘‘The fact that the record contains no evidence of 

a recommendation by a state licensing board does 

not weigh for or against a determination as to 

whether continuation of the Respondent’s DEA 

certification is consistent with the public 

interest.’’). Here, to the extent that Tennessee’s 

decision not to revoke or suspend Respondent’s 

individual authority to handle controlled 

substances could weigh in his favor, I find that any 

such weight would be significantly reduced by the 

circumstances of the loss of his practice’s license, 

and the pending nature of the state action on his 

individual license.] Likewise, the record contains 

no evidence that the Respondent has been 

convicted of a crime related to controlled 

substances (Factor Three). 

*AA The ALJ only evaluated the evidence under 

Factor 4. However, Respondent’s dispensing 

experience is clearly relevant to my determination 

as to whether or not Respondent’s continued 

registration is consistent with the public interest, 

and I have made changes throughout this section 

accordingly. 

in May 2019, the Chancery Court for the 

State of Tennessee, 20th Judicial 

District, Davidson County, Part 3, issued 

an order Reversing Denial of Stay, but 

Accompanying Stay with Conditions. 

GX 27. The stay was conditioned upon 

the Respondent ‘‘not writing any 

prescriptions during the pendency of 

the stay; . . . and/or not providing 

direct patient care including but not 

limited to diagnosing, treating, 

operating on or prescribing for any 

person.’’ GX 27, at 2. Therefore, as of 

May 2019, the Conditions preclude the 

Respondent from writing prescriptions 

or providing direct patient care during 

the pendency of the stay and were 

reportable restrictions. When asked on 

his November 6, 2019 application 

whether Respondent had ever had a 

state professional license or controlled 

substance registration revoked, 

suspended, or restricted or had any such 

action pending, he was required to, but 

did not, disclose these events.*X 47

Therefore, I find clear, unequivocal, and 

convincing evidence that Respondent 

submitted a registration application 

containing a false answer to the third 

Liability question. 

[My finding about Respondent’s 

submission of a false answer involves 

restrictions on Respondent’s state 

license to dispense controlled 

substances. Id. In setting the 

requirements for obtaining a 

practitioner’s registration, Congress 

directed that ‘‘[t]he Attorney General 

shall register practitioners . . . if the 

applicant is authorized to dispense . . . 

controlled substances under the laws of 

the State in which he practices.’’ 21 

U.S.C. 823(f). Accordingly, it is clear 

that having authorization to dispense 

controlled substances is a prerequisite 

to my ability to grant an applicant’s 

application. Respondent’s false response 

to the third Liability question directly 

implicated my statutorily-mandated 

analysis and my decision by depriving 

me of legally relevant facts when I 

evaluated Respondent’s registration 

renewal application. See Frank Joseph 

Stirlacci, M.D., 85 FR 45,229, 45,235 

(2020). Accordingly, I find, based on the 

CSA and the analysis underlying 

multiple Supreme Court decisions 

explaining ‘‘materiality,’’ that the falsity 

Respondent submitted was material. 

Frank Joseph Stirlacci, M.D., 85 FR at 

45,235.] *Y *Z

Government’s Burden of Proof and 

Establishment of a Prima Facie Case 

Based upon my review of each of the 

allegations by the Government, it is 

necessary to determine if it has met its 

prima facie burden of proving the 

requirements for a sanction pursuant to 

21 U.S.C. 824(a)(4) and 21 U.S.C. 823(f). 

At the outset, I find that the Government 

has demonstrated and met its burden of 

proof in support of its allegations 

relating to the prescribing of controlled 

substances to patients UC, M.P., M.W., 

C.F., B.C., and M.H. The Government 

has also sustained their burden as to the 

material misrepresentation allegation. 

Public Interest Determination: The 

Standard 

[Under Section 304 of the CSA, ‘‘[a] 

registration . . . to . . . dispense a 

controlled substance . . . may be 

suspended or revoked by the Attorney 

General upon a finding that the 

registrant . . . has committed such acts 

as would render his registration under 

section 823 of this title inconsistent 

with the public interest as determined 

by such section.’’ 21 U.S.C. 824(a)(4).] 48

Evaluation of the following factors have 

been mandated by Congress in 

determining whether maintaining such 

registration would be inconsistent with 

the ‘‘the public interest:’’ 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The [registrant’s] experience in 

dispensing, or conducting research with 

respect to controlled substances. 

(3) The [registrant’s] conviction record 

under Federal or State laws relating to the 

manufacture, distribution, or dispensing of 

controlled substances. 

(4) Compliance with applicable State, 

Federal, or local laws relating to controlled 

substances. 

(5) Such other conduct which may threaten 

the public health and safety. 

21 U.S.C. 823(f). ‘‘These factors are . . . 

considered in the disjunctive.’’ Robert 

A. Leslie, M.D., 68 FR 15227, 15230 

(2003). 

Any one or a combination of factors 

may be relied upon, and when 

exercising authority as an impartial 

adjudicator, the Agency may properly 

give each factor whatever weight it 

deems appropriate in determining 

whether a registrant’s registration 

should be revoked. Id. (citation 

omitted); David H. Gillis, M.D., 58 FR 

37507, 37508 (1993); see also Morall v. 

DEA at 173–74; Henry J. Schwarz, Jr., 

M.D., 54 FR 16422, 16424 (1989). 

Moreover, the Agency is ‘‘not required 

to make findings as to all of the factors.’’ 

Hoxie v. DEA, 419 F.3d at 482; see also 

Morall, 412 F.3d at 173. [Omitted for 

brevity.] The balancing of the public 

interest factors ‘‘is not a contest in 

which score is kept; the Agency is not 

required to mechanically count up the 

factors and determine how many favor 

the Government and how many favor 

the registrant. Rather, it is an inquiry 

which focuses on protecting the public 

interest . . . .’’ Krishna-Iyer, M.D., 74 

FR at 462. 

The Government’s case invoking the 

public interest factors of 21 U.S.C. 823(f) 

seeks the revocation of the Respondent’s 

COR based primarily on conduct most 

aptly considered under Public Interest 

Factor’s [Two and] Four.49

[Factors Two and Four: The 

Respondent’s Experience in Dispensing 

Controlled Substances and Compliance 

With Applicable Laws Related to 

Controlled Substances] *AA

According to the Controlled 

Substances Act’s (hereinafter, CSA) 

implementing regulations, a lawful 

controlled substance order or 

prescription is one that 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). The 

Supreme Court has stated, in the context 

of the CSA’s requirement that schedule 

II controlled substances may be 

dispensed only by written prescription, 


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that ‘‘the prescription requirement . . . 

ensures patients use controlled 

substances under the supervision of a 

doctor so as to prevent addiction and 

recreational abuse . . . [and] also bars 

doctors from peddling to patients who 

crave the drugs for those prohibited 

uses.’’ Gonzales v. Oregon, 546 U.S. 

243, 274 (2006). 

I found above that the Government’s 

expert credibly testified as supported by 

Tennessee law, that the standard of care 

requires a practitioner, before 

prescribing controlled substances, to 

take an adequate medical history 

including an assessment of the patient’s 

pain history and potential for substance 

abuse; perform and document an 

adequate physical examination; and 

create a legitimate written treatment 

plan for the patient’s individual needs 

and to discuss the risks and benefits of 

the use of controlled substances with 

the patient. Additionally, I found that 

practitioners are required to maintain 

complete and accurate records for their 

patients. I also found above that 

Respondent issued approximately 

ninety-five controlled substance 

prescriptions outside the usual course of 

professional practice and beneath the 

standard of care. This is because for 

each of the relevant prescriptions, I 

found that the Respondent failed to take 

an adequate medical history including 

an assessment of each patient’s pain 

history and potential for substance 

abuse; perform and document an 

adequate physical examination; and/or 

create a legitimate written treatment 

plan for each patient’s individual needs 

and/or discuss the risks and benefits of 

using controlled substances with the 

patient. I also found that each of the 

relevant prescriptions were issued 

outside the usual course of professional 

practice and beneath the standard of 

care due to Respondent’s failure to 

maintain complete and accurate records. 

Respondent repeatedly issued 

prescriptions without complying with 

the applicable standard of care and state 

law thus demonstrating that his conduct 

was not an isolated occurrence, but 

occurred with multiple patients. See 

Kaniz Khan Jaffery, 85 FR 45,667, 

45,685 (2020). For example, 

Respondent’s medical records for each 

of the individuals at issue had verbatim 

language repeated throughout the 

relevant time frame stating, ‘‘Patient has 

a long standing h/o insomnia and 

anxiety for several years. Anxiety 

symptoms include sob, palpitations, 

sweating, dizziness, shaking, insomnia, 

irritability, pacing, moodiness and 

feeling faint. Right now no headache, no 

dizziness, no nausea, no vomiting, no 

abdominal pain, no diarrhoea [sic.], no 

constipation, no sob, no chest pain, no 

palpitations.’’ GX 9, at 85; GX 11, at 39; 

Tr. 286–87. This verbatim language was 

included in each patient’s record and in 

UC’s records to which UC testified 

credibly that he did not report having 

any of the anxiety symptoms identified 

in the chart. 

Agency decisions highlight the 

Agency’s interpretation that 

‘‘[c]onscientious documentation is 

repeatedly emphasized as not just a 

ministerial act, but a key treatment tool 

and vital indicator to evaluate whether 

the physician’s prescribing practices are 

‘within the usual course of professional 

practice.’ ’’ Cynthia M. Cadet, M.D., 76 

FR 19,450, 19,464 (2011). DEA’s ability 

to assess whether controlled substances 

registrations are consistent with the 

public interest is predicated upon the 

ability to consider the evidence and 

rationale of the practitioner at the time 

that he prescribed a controlled 

substance—adequate documentation is 

critical to that assessment. See KanizKhan Jaffery, 85 FR at 45,686. Further, 

as Dr. Kennedy testified, ‘‘maintaining a 

patient on scheduled medications . . . 

sometimes at high dosages, without 

having honest, accurate, complete 

medical records is dangerous.’’ Tr. 352– 

53. This is because, according to Dr. 

Kennedy, ‘‘those medical records will 

instruct other people who look at them 

as to what the motivation was for the 

treatment . . . [a]nd if what is 

documented in the medical record 

simply doesn’t made sense or is 

something that is in conflict . . . [t]hat 

can . . . present a dangerous situation.’’ 

Tr. 353. Therefore, recordkeeping is not 

only important for compliance, but also 

for the safety of the patients. 

DEA decisions have found that ‘‘just 

because misconduct is unintentional, 

innocent, or devoid of improper motive, 

[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 . . .’’ Bobby D. Reynolds, 

N.P., Tina L. Killebrew, N.P., & David R. 

Stout, N.P., 80 FR 28,643, 28662 (2015) 

(quoting Paul J. Caragine, Jr. 63 FR 

51,592, 51,601 (1998). ‘‘Diversion occurs 

whenever controlled substances leave 

‘the closed system of distribution 

established by the CSA . . . .’ ’’ Id. 

(citing Roy S. Schwartz, 79 FR 34,360, 

34,363 (2014)). In this case, I have found 

that Respondent issued controlled 

substance prescriptions without 

complying with his obligations under 

the CSA and Tennessee law. See George 

Mathew, M.D., 75 FR 66,138, 66,148 

(2010)). 

With regard to Tennessee law, I find 

that in issuing controlled substances 

prescriptions that were outside the 

usual course of professional practice 

and beneath the standard of care, 

Respondent issued prescriptions that 

were ‘‘not in the course of professional 

practice’’ in violation of TENN. CODE 

ANN. § 63–6–2l4(b)(12). The Tennessee 

guidelines require that a physician: (1) 

Take a documented medical history; (2) 

conduct a physical examination; and (3) 

perform an adequate ‘‘assessment and 

consideration of the [patient’s] pain, 

physical and psychological function, 

any history and potential for substance 

abuse, coexisting diseases and 

conditions, and the presence of a 

recognized medical indication for the 

use of a dangerous drug or controlled 

substance.’’ TENN. COMP. R. & REGS. 

0880–02–.14(6)(e)(3)(i). I found above 

that respondent failed to conduct an 

adequate assessment and consideration 

of the pain and potential for substance 

abuse and failed to conduct a physical 

examination for each of the individuals 

at issue including UC. Additionally, 

Rule 0880–02–.14 (6)(e) requires 

physicians to create a ‘‘written 

treatment plan tailored for the 

individual needs of the patient’’ that 

considers the patient’s ‘‘pertinent 

medical history and physical 

examination as well as the need for 

further testing, consultation, referrals, or 

use of other treatment modalities.’’ I 

found above that respondent failed to 

prepare a tailored written treatment 

plan for each of the individuals at issue 

including UC. Tennessee guidelines also 

requires the physician to ‘‘discuss the 

risks and benefits of the use of 

controlled substances,’’ which I found 

above that Respondent failed to do for 

UC, C.F., B.C., M.H., and M.P., and 

‘‘keep [c]omplete and accurate records 

of the care,’’ which Respondent failed to 

do for each of the individuals at issue 

including UC. Id. at 0880–02- 

.14(6)(e)(3)(ii)–(v). 

Additionally, TENN. CODE ANN. 

§ 63–6–214(b)(13) prohibits a physician 

from prescribing controlled substances 

to a person ‘‘addicted to the habit of 

using controlled substances’’ without 

‘‘making a bona fide effort to cure the 

[patient’s] habit.’’ Crediting Dr. 

Kennedy’s testimony, I found above that 

Respondent acted outside the bounds of 

this law with regard to patients M.W., 

C.F., M.H., and M.P.] 

The evidence is clear the Respondent 

violated the Tennessee regulations 

alleged, and the Tennessee professional 

standards. The Tennessee regulations 

are related to controlled substances. 

[Overall, I find that in issuing ninetyfive prescriptions beneath the 


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50An expert’s opinion that a doctor’s treatment of 

patients fell below the standard of care is probative 

of whether the doctor violated 21 CFR 1306.04(a). 

Bienvenido Tan, M.D., 76 FR 17,673, 17,681 (2011). 

*BB I am replacing portions of the Sanction 

section in the RD with preferred language regarding 

prior Agency decisions; however, the substance is 

primarily the same. 

*CC Remaining analysis of egregiousness omitted 

for relevance. 

*DD I agree with the ALJ that Respondent’s 

testimony lacked credibility and I have given it 

little-to-no weight in reaching my decision. 

However, in light of Respondent’s failure to 

unequivocally accept responsibility, it is not 

necessary for me to assess whether Respondent’s 

testimony also lacked candor and I have therefore 

omitted the ALJ’s discussion of this topic. 

applicable standard of care and outside 

the usual course of professional practice 

in Tennessee, Respondent violated 21 

CFR 1306.04(a) in addition to Tennessee 

law, and these violations of law weigh 

against Respondent’s continued 

registration under Public Interest 

Factors 2 and 4.] 50

Sanctions *BB

[Where, as here, the Government has 

met its prima facie burden of showing 

that Respondent’s continued registration 

is inconsistent with the public interest, 

the burden shifts to the Respondent to 

show why he can be entrusted with a 

registration. Garrett Howard Smith, 

M.D., 83 FR 18,882, 18,910 (2018) 

(collecting cases). Respondent has made 

minimal effort to establish that he can 

be entrusted with a registration. 

The CSA authorizes the Attorney 

General to ‘‘promulgate and enforce any 

rules, regulations, and procedures 

which he may deem necessary and 

appropriate for the efficient execution of 

his functions under this subchapter.’’ 21 

U.S.C. 871(b). This authority 

specifically relates ‘‘to ‘registration’ and 

‘control,’ and ‘for the efficient execution 

of his functions’ under the statute.’’ 

Gonzales v. Oregon, 546 U.S. 243, 259 

(2006). A clear purpose of this authority 

is to ‘‘bar[ ] doctors from using their 

prescription-writing powers as a means 

to engage in illicit drug dealing and 

trafficking.’’ Id. at 270. 

In efficiently executing the revocation 

and suspension authority delegated to 

me under the CSA for the 

aforementioned purposes, I review the 

evidence and arguments Respondent 

submitted to determine whether or not 

he has presented ‘‘sufficient mitigating 

evidence to assure the Administrator 

that he can be trusted with the 

responsibility carried by such a 

registration.’’ Samuel S. Jackson, D.D.S., 

72 FR 23,848, 23,853 (2007) (quoting 

Leo R. Miller, M.D., 53 FR 21,931, 

21,932 (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), 

[the Agency] has repeatedly held that 

where a registrant has committed acts 

inconsistent with the public interest, the 

registrant must accept responsibility for 

[the registrant’s] actions and 

demonstrate that [registrant] will not 

engage in future misconduct.’ ’’ Jayam 

Krishna-Iyer, 74 FR 459, 463 (2009) 

(quoting Medicine Shoppe, 73 FR 364, 

387 (2008)); see also Jackson, 72 FR at 

23,853; John H. Kennedy, M.D., 71 FR 

35,705, 35,709 (2006); Prince George 

Daniels, D.D.S., 60 FR 62,884, 62,887 

(1995). 

The issue of trust is necessarily a factdependent determination based on the 

circumstances presented by the 

individual respondent; therefore, the 

Agency looks at factors, such as the 

acceptance of responsibility and the 

credibility of that acceptance as it 

relates to the probability of repeat 

violations or behavior and the nature of 

the misconduct that forms the basis for 

sanction, while also considering the 

Agency’s interest in deterring similar 

acts. See Arvinder Singh, M.D., 81 FR 

8247, 8248 (2016).] 

While the Respondent has conceded 

that his medical charts contained 

several errors he never accepted 

responsibility for [the violations I have 

found]. His testimony defending the 

identical indications among his patients 

in support of his anxiety and insomnia 

diagnoses was not at all credible. The 

lack of a credible explanation for the 

inclusion of results in UC’s chart of tests 

and examinations which did not take 

place weighs heavily against a finding of 

acceptance of responsibility. 

Furthermore, although he testified, he 

did not address the material falsification 

allegation. I therefore find that any 

acceptance of responsibility has neither 

been unequivocal nor complete. 

[In all, Respondent failed to explain 

why, in spite of his misconduct, he can 

be entrusted with a registration. ‘‘The 

degree of acceptance of responsibility 

that is required does not hinge on the 

respondent uttering ‘‘magic words’’ of 

repentance, but rather on whether the 

respondent has credibly and candidly 

demonstrated that he will not repeat the 

same behavior and endanger the public 

in a manner that instills confidence in 

the Administrator.’’ Jeffrey Stein, M.D., 

84 FR 46,968, 49,973 (2019). Here, 

having considered Respondent’s case 

and statements, I am left with no 

confidence in Respondent’s future 

compliance with the CSA.] 

Egregiousness and Deterrence 

[The Agency also looks to the 

egregiousness and extent of the 

misconduct which are significant factors 

in determining the appropriate sanction. 

Garrett Howard Smith, M.D., 83 FR at 

18,910 (collecting cases).] I find that the 

proven misconduct is egregious and that 

deterrence considerations weigh in 

favor of revocation. [Respondent issued 

approximately 95 prescriptions for 

controlled substances outside the usual 

course of professional practice and 

beneath the standard of care.] The 

proven misconduct involved fabricated 

medical charts, failure to meaningfully 

address serious and ongoing indications 

of drug abuse and diversion by several 

of his patients, as well as other red flags. 

The proven misconduct also involved 

the material falsification of his 

application for his CSA registration 

renewal in Tennessee.*CC

[In sanction determinations, the 

Agency has historically considered its 

interest in deterring similar acts, both 

with respect to the respondent in a 

particular case and the community of 

registrants. See Joseph Gaudio, M.D., 74 

FR 10,083, 10,095 (2009); Singh, 81 FR 

at 8248. I find that considerations of 

both specific and general deterrence 

weigh in favor of revocation in this 

case.] Allowing the Respondent to retain 

his COR despite the proven misconduct 

would send the wrong message to the 

regulated community. Imposing a 

sanction less than revocation would 

create the impression that registrants 

can maintain DEA registration despite 

ignoring obvious signs of abuse, 

diversion and other serious red flags, 

the wholesale failure to maintain 

adequate, complete and accurate 

medical charts, and after making a 

material falsification on a renewal 

application. Revoking the Respondent’s 

COR communicates to registrants that 

the DEA takes all of these failings under 

the CSA seriously and that severe 

violations will result in severe 

sanctions. 

[Omitted.] *DD

Loss of Trust 

Where the Government has sustained 

its burden and established that a 

registrant has committed acts 

inconsistent with the public interest, 

that registrant must present sufficient 

mitigating evidence to assure the 

Administrator that he can be entrusted 

with the responsibility commensurate 

with such a registration. Medicine 

Shoppe-Jonesborough, 73 FR at 387. The 

Respondent’s material 

misrepresentation compounds the 

Respondent’s instant burden. Although 

the Respondent offered some evidence 

of mitigation, even if considered, it has 

not overcome the loss of trust resulting 

from the allegations found herein. 


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3020 Federal Register / Vol. 87, No. 12 / Wednesday, January 19, 2022 / Notices 

[There is simply no evidence that 

Respondent’s behavior is not likely to 

recur in the future such that I can 

entrust him with a CSA registration; in 

other words, the factors weigh in favor 

of revocation as a sanction.] 

Recommendation 

Considering the entire record before 

me, the conduct of the hearing, and 

observation of the testimony of the 

witnesses presented, I find that the 

Government has met its burden of proof 

and has established a prima facie case 

for revocation. In evaluating Factors 

[Two and] Four of 21 U.S.C. 823(f), I 

find that the Respondent’s COR is 

inconsistent with the public interest. 

Furthermore, I find that the Respondent 

has failed to overcome the 

Government’s prima facie case by 

unequivocally accepting responsibility 

and establishing that he can be trusted 

with a registration. 

Therefore, I recommend that the 

Respondent’s DEA COR Control No. 

BO4959889 should be revoked, and that 

any pending applications for 

modification or renewal of the existing 

registration, including the pending 

application for a new DEA COR Control 

No. W18070589C, and any applications 

for additional registrations, be denied. 

Mark M. Dowd, 

U.S. Administrative Law Judge. 

Order 

Pursuant to 28 CFR 0.100(b) and the 

authority vested in me by 21 U.S.C. 

824(a) and 21 U.S.C. 823(f), I hereby 

revoke DEA Certificate of Registration 

No. BO4959889 issued to Samson K. 

Orusa, M.D. Pursuant to 28 CFR 0.100(b) 

and the authority vested in me by 21 

U.S.C. 824(a) and 21 U.S.C. 823(f), I 

further hereby deny any other pending 

applications for renewal or modification 

of this registration, the pending 

application for new DEA COR Control 

No. W18070589C, as well as any other 

pending application of Samson K. 

Orusa, M.D., for registration in 

Tennessee. This Order is effective 

February 18, 2022. 

Anne Milgram, 

Administrator. 

[FR Doc. 2022–00952 Filed 1–18–22; 8:45 am] 

BILLING CODE 4410–09–P 


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