Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Notices 10083 

hereby is, granted, subject to the 

conditions set forth above. This Order is 

effective immediately. 

Dated: February 26, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–4906 Filed 3–6–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 06–28] 

Joseph Gaudio, M.D.; Suspension of 

Registration 

On September 16, 2005, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Joseph Gaudio, M.D. 

(Respondent) of Alpine, New Jersey. 

The Show Cause Order sought the 

revocation of Respondent’s DEA 

Certificate of Registration, which 

authorizes him to handle controlled 

substances as a practitioner, and the 

denial of any pending applications to 

renew or modify his registration, on the 

ground that he had committed acts 

which rendered his continued 

registration ‘‘inconsistent with the 

public interest.’’ Show Cause Order at 1 

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

The Show Cause Order alleged that 

Respondent had issued prescriptions for 

controlled substances which lacked a 

legitimate medical purpose, and that in 

doing so, he had acted outside of the 

usual course of professional practice. Id. 

at 1 & 6. The Show Cause Order 

specifically alleged that Respondent had 

‘‘prescrib[ed] controlled substances to 

Internet customers despite never 

establishing a genuine doctor-patient 

relationship with the Internet 

customer.’’ Id. at 5. Relatedly, the Show 

Cause Order alleged that Respondent 

‘‘did not see customers, had no prior 

doctor-patient relationships with the 

Internet customers, did not conduct 

physical exams, * * * did [not] create 

or maintain patient records,’’ and that 

‘‘[t]he only information usually 

reviewed prior to issuing drug orders 

was the customer’s online 

questionnaire.’’ Id. at 6. 

The Show Cause Order also alleged 

that ‘‘[a] review of prescriptions filled 

by [Carrington Healthcare System/ 

Infiniti Services Group] revealed that 

[Respondent] ha[d] issued drug orders 

for controlled substances to Internet 

customers throughout the United States, 

including Georgia, Texas, Pennsylvania, 

Alabama, Louisiana, and Kentucky.’’ Id. 

The Show Cause Order further alleged 

that ‘‘[a] review of prescriptions filled 

by [Carrington/Infiniti] for the period 

October 13, 2004 to January 21, 2005, 

revealed that [Respondent] ha[d] issued 

16 drug orders to Internet customers in 

at least nine different states.’’ Id. 

On October 21, 2005, Respondent, 

through his counsel, requested a hearing 

on the allegations. The matter was 

assigned to Administrative Law Judge 

(ALJ) Gail Randall, who conducted a 

hearing on May 2–5, 2006, in New York, 

NY. At the hearing, both parties put on 

testimony and introduced documentary 

evidence. Thereafter, both parties 

submitted briefs containing their 

proposed findings of fact, conclusions of 

law, and arguments. 

On November 2, 2007, the ALJ issued 

her recommended decision. In her 

decision, the ALJ concluded that ‘‘[t]he 

Government has clearly demonstrated 

that the Respondent’s Internet practice 

and his resulting issuance of controlled 

substance prescriptions * * * violated 

the Controlled Substances Act.’’ ALJ at 

43. Applying the totality of the 

circumstances test, the ALJ concluded, 

however, that the revocation of 

Respondent’s registration was not 

warranted. Id. at 43–44. 

The ALJ specifically noted that 

‘‘Respondent’s conduct encompassed a 

one year period,’’ that Respondent had 

‘‘voluntarily cease[d]’’ his conduct, but 

that he had not done so until three 

months after he was served with the 

Show Cause Order. Id. at 43. While the 

ALJ deemed Respondent’s cessation of 

his conduct as ‘‘commendable because 

of its voluntary nature,’’ she further 

explained that he ‘‘demonstrated a lack 

of sound judgment’’ in ‘‘continuing to’’ 

prescribe after being served with the 

Show Cause Order. Id. at 44. The ALJ 

also found of concern ‘‘Respondent’s 

failure to be totally truthful during his 

testimony.’’ Id. 

The ALJ reasoned, however, that 

Respondent was ‘‘a very educated, 

dedicated and talented physician 

practicing in a sometimes difficult 

specialty, pain management,’’ and that 

the revocation of his registration would 

render him ‘‘being unable to handle 

controlled substances’’ in his specialty. 

Id. Because the record demonstrated 

that Respondent had practiced medicine 

for eleven years, and that ‘‘the only 

instances of [his] improper handling of 

controlled substances were related to 

his’’ Internet prescribing, the ALJ 

recommended that Respondent’s 

registration be continued subject to the 

condition that he ‘‘not engage in any 

activity involving prescribing controlled 

substances and the Internet.’’ Id. 

Having considered the entire record 

in this matter, I hereby issued this 

Decision and Final Order. I adopt the 

ALJ’s conclusions that Respondent 

violated both the Controlled Substances 

Act (CSA) and various state standards of 

medical practice in issuing 

prescriptions to persons who ordered 

drugs through an Internet site. For 

reasons explained below, I reject the 

ALJ’s recommended sanction as 

inconsistent with agency precedent and 

will order the suspension of 

Respondent’s registration for a period of 

one year. I make the following findings. 

Findings 

Respondent is a medical doctor who 

is board certified in both anesthesiology 

and pain management and is licensed to 

practice medicine in the States of New 

York and New Jersey. Tr. 488. 

Respondent is also the holder of a DEA 

Certificate of Registration, which 

authorizes him to dispense controlled 

substances in schedules II through V as 

a practitioner. GX 1, at 2. While the 

expiration date of Respondent’s 

registration was September 30, 2006, 

Respondent submitted a renewal 

application on August 4, 2006. See 

Reply to Respondent’s Status Report, at 

1. I therefore find that Respondent’s 

prior registration has remained in effect 

pending the issuance of this Final Order 

and that Respondent also has an 

application pending before the Agency. 

See 5 U.S.C. 558(c). 

Respondent attended medical school 

at The Autonomous University of 

Guadalajara, and the New York Medical 

College. RX 1, at 2. Subsequently, 

Respondent did his residency in 

anesthesiology at St. Luke’s/Roosevelt 

Hospital, an institution which is 

affiliated with the Columbia University 

College of Physicians and Surgeons, 

where he received an award given to the 

Outstanding Graduate Resident in 

Anesthesiology. Id. Respondent also did 

a fellowship in Pain Management at the 

Memorial Sloan Kettering Cancer 

Center, where he was elected Chief 

Fellow. Id. at 1. 

Upon completion of his fellowship, 

Respondent joined New Jersey 

Anesthesia Associates (NJAA), a group 

of physicians which provides anesthesia 

services at St. Barnabas Medical Center. 

Tr. 345–47. Respondent is a partner in 

NJAA. Id. at 347. In addition to 

providing anesthesia, Respondent also 

treats both acute and chronic pain 

patients. Id. at 555–56. Respondent is 

also an attending physician and clinical 

professor at St. Barnabas, where he 

trains residents in anesthesia. Id. at 360. 

Respondent came to the attention of 

the Agency during its investigation of a 


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1At the top of all but one of the sheets was the 

notation: ‘‘From: Dr. Joseph Gaudio, M.D.,’’ and a 

date and time which was typically only a short 

period after the date and time listed for the 

consultation. See GXs 17, 18, 20, 21, 22, 23. 

2Respondent also maintained that ‘‘to find out 

more’’ he had talked with another physician who 

performed online consultations for Liberty. Id. at 

509. Respondent did not, however, testify as to the 

specifics of this conversation. Id. Respondent did 

not meet any of the medical professionals who 

worked for Liberty and did not know where the 

business was located. Id. 

3Respondent maintained that his compensation 

from Liberty was only ‘‘a very small part of [his] 

income’’ and that ‘‘it was more of my interest in 

telemedicine that drove me to do it.’’ Tr. 383. 

Respondent testified that he was involved in a startup company, Technology Integrated for Medical 

Application (TIMA), which conducted academic 

research with major institutions, and that TIMA 

was developing systems to engage in medical 

monitoring of people from remote locations. Id. at 

505. Respondent explained that ‘‘[w]e can speculate 

that some day we’ll be able to diagnose patients 

from a distance where you can have a doctor in a 

remote location who doesn’t have the expertise in 

a certain area that can receive expertise from * * * 

physicians in another area based on giving real time 

information back to those physicians.’’ Id. at 506. 

4Respondent testified that he prescribed both 

narcotics and non-narcotics and that the estimated 

number of prescriptions referred to ‘‘all in total.’’ 

Tr. 568. Notably, the Government introduced no 

evidence showing the number of controlledsubstance prescriptions he issued during the course 

of his contract with Liberty; nor did it introduce 

evidence showing the number of controlled 

large criminal conspiracy which was 

run by Johar Saran, and which used the 

Internet to unlawfully distribute 

controlled substances. Id. at 156–159; 

see also GX 16 (Indictment, United 

States v. Saran, et al., No. 305–CR– 

0240P (N.D. Tex. 2005). As part of the 

investigation, DEA Investigators 

conducted trash runs at the premises of 

Carrington Health Care System, an 

entity owned by Saran which was 

located at 301 E. Stephens, Suite 100, 

Arlington, Texas. Tr. 159, 185. During 

the trash runs, investigators found 

various documents including ‘‘Drug 

Prescription’’ sheets and copies of some 

prescription labels which are placed on 

pill vials. See GXs 17–29. 

The ‘‘Drug Prescription’’ sheets listed 

a patient’s name, address, birth date, 

age, sex, phone number, medication 

history, and allergies. See GXs 17–24. In 

the block titled ‘‘Physician,’’ the sheets 

listed Respondent’s name, address, 

phone numbers, and DEA number. Id. In 

the block titled ‘‘Rx,’’ the sheets gave 

the date, drug name (which in each 

instance was a schedule III controlled 

substance containing hydrocodone), 

quantity, number of refills, instructions 

for taking the drug, instructions to the 

pharmacist as to whether substitution 

was permitted or the drug was to be 

dispensed as written, and bore the 

electronic signature of Respondent. See 

id. In a block entitled ‘‘Pharmacy 

Services Use Only,’’ each of the sheets 

listed a number, as well as the date and 

time of a consultation, and included the 

notation ‘‘LBRTY.’’ Id. 1 Finally, each of 

the sheets included shipping 

information. Id. 

The prescription labels listed 

‘‘Triphasic Pharmacy,’’ with an address 

of ‘‘301 E. Stephens St. Ste 100’’ in 

Arlington as the dispensing pharmacy. 

GXs 25–31. The labels also listed the 

patient’s name, the drug, a date, the 

quantity dispensed, a prescription 

number, instructions for taking the drug, 

number of refills, and a physician’s 

name. Id. Respondent was listed as the 

prescribing physician on eight of the 

prescription labels, each of which 

indicated that the customer had 

received a schedule III controlled 

substance containing hydrocodone. See 

id. 

Several months later, Respondent was 

served with the Show Cause Order. Tr. 

51–52. When asked by a DI whether he 

had prescribed over the Internet, 

Respondent admitted that ‘‘he had a 

contract with a company called Liberty 

Med,’’ that ‘‘he reviewed on-line patient 

applications of Liberty Med,’’ and that 

he ‘‘was paid $20 per on-line patient 

consultation.’’ Id. at 52. Respondent also 

told the DI that he reviewed MRIs and 

X-rays. When asked if he maintained 

patient records, Respondent told the DI 

that Liberty Med ‘‘kept them.’’ Id. at 53. 

In his testimony, Respondent 

explained that in October 2004, one of 

his partners in NJAA introduced him to 

Liberty Medical and Mr. Craig Boswell, 

whose mother ran the company. Tr. 

371–72. Respondent’s partner told him 

that ‘‘he understood [that Liberty] was a 

legitimate company that practices 

Internet-based medicine and that I 

might be interested in talking to Craig 

Boswell concerning possibly doing work 

for them.’’ Id. at 371. 

Respondent met with Boswell, who 

told him that the company ‘‘was not one 

of these companies opening and 

shutting in a week or month, [that it] 

was a legitimate company, [and that] 

they wanted to set up consultation 

services doing this internet website.’’ Id. 

at 373. Boswell further advised 

Respondent that Liberty ‘‘deal[t] with 

patients who have medical records, who 

have been seen by other physicians, 

who have radiological evidence of 

pain.’’ Id. Boswell also told Respondent 

that Liberty would carefully screen the 

patients, that ‘‘they would make sure 

that the patient wasn’t sourcing meds 

from another facility,’’ and that ‘‘they 

would also obtain’’ the address and 

phone number of the patient’s primary 

physician ‘‘so that we could call them 

if there is any question as to whether’’ 

the person was ‘‘a legitimate patient.’’ 

Id. at 374. 

Boswell subsequently asked 

Respondent if he would perform on-line 

consultations for Liberty. Id. The 

consultations were to involve 

‘‘interview[ing] the patients’’ and 

‘‘mak[ing] a recommendation’’ to 

prescribe drugs based ‘‘on all the 

information.’’ Id. 

In his testimony, Respondent 

maintained that he asked Boswell 

whether this was permissible. Id. at 375. 

Respondent stated that Boswell 

‘‘assured [him] that everything was 

legitimate,’’ that Boswell told him that 

‘‘he was in the Armed Forces,’’ and that 

‘‘he had two men in his squad [who] 

were in the DEA and [that] he 

constantly bounced questions off of 

them * * * always to make sure that he 

was within the limits of the law.’’ Id. 

Boswell also told Respondent that 

‘‘there were certain states that did not 

allow internet prescribing’’ and that 

persons from these states would be 

excluded. Id. at 376. 

Respondent did not, however, seek 

legal advice regarding the lawfulness of 

Boswell’s proposal. Id. at 375. 

Moreover, even though he understood 

that he would be prescribing to patients 

throughout the country, he did not 

undertake any inquiry on his own into 

the laws of any State pertaining to the 

propriety of the proposed activity. Id. at 

512. Instead, he concluded that Liberty 

was engaged in legitimate activity 

because Boswell had been referred to 

him by his partner and Boswell was 

‘‘concerned about making sure that 

everything was done correctly,’’ id. at 

375, and had told him that ‘‘he had 

reviewed all the laws pertaining to 

this.’’ Id. at 512.2

In November 2004, Respondent 

entered into a written contract with 

Liberty; Respondent performed online 

consultations and prescribings for it 

from approximately December 2004 

through December 2005. Id. at 507. 

Respondent was paid $20 per 

consultation and received the same fee 

regardless of whether he prescribed a 

drug.3 Id. at 382–83, 508, 601. 

Respondent did consultations for 

Liberty five days a week, and did so 

every week between December 2004 and 

December 2005, except for three weeks 

during which he took vacation. Id. at 

516. Respondent performed twenty to 

fifty consultations a week; he also 

testified that while he was ‘‘not exactly 

sure,’’ he issued twenty to thirty 

prescriptions a week. Id. The record is, 

however, unclear as to how many of the 

prescriptions were for controlled 

substances. Id. at 568.4 According to 


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prescription he issued during a defined period of 

time. 

5Respondent testified that ‘‘on the average,’’ the 

physical exam had to be no more than 

‘‘approximately six months’’ old, but that 

‘‘sometimes we required records more recent than 

six months and sometimes patient[s] could have 

records up to eight months [old] or more.’’ Tr. 571. 

Respondent maintained, however, that in each 

instance, he would have a conversation with a 

patient before prescribing and that this provided 

‘‘an independent basis’’ to determine whether the 

patient’s symptoms were continuing.’’ Id. at 572. 

Moreover, the ‘‘Consent for Treatment’’ forms that 

are in several patient files indicate that a patient 

could receive the ‘‘first prescription with an 

agreement that I will fax my medical records and 

a photo ID * * * within 27 days and before my 

next prescription is due for refill.’’ RX 11, at G0156 

(signed on ‘‘12/8/04’’); RX 10, at G0151 (signed on 

‘‘12/5/05’’). This suggests that in some instances, 

Respondent may have issued prescriptions without 

even reviewing a patient’s records. 

6Those records included a progress note dated 

September 16, 2004, which indicated that A.B.’s 

physician had prescribed ninety Lorcet (10/650 

mg.), with no refills. RX 6, at G0050. Lorcet is a 

schedule III controlled substance which combines 

hydrocodone with acetaminophen. See PDR, at 

1287. 

7Apap is an abbreviation for acetaminophen. 

8Having found that K.B. faxed a copy of the MRI 

report on August 4, 2004, four months before 

Respondent began his contract with Liberty, I find 

that Respondent did not issue the initial 

prescription which K.B. received from Liberty. I do 

find, however, that Respondent issued a 

prescription to K.B. on December 15, 2004. See GX 

21. 

9 Investigators also attempted to interview several 

other persons whose names were listed on the 

prescription sheets found during the trash runs. 

Some of the individuals could not be located, Tr. 

162 & 165, others were uncooperative. Id. at 163. 

Investigators were unable to contact the persons 

named on the prescription labels because the labels 

did not contain addresses. Id. at 169. 

10For example, while a DI spoke to L.L.’s 

daughter (RX 20), she did not know whether her 

mother ever spoke with Respondent. Tr. 635. R.T. 

(RX 24) stated that he never received drugs from 

Liberty, Tr. 637, and there is no evidence to the 

contrary. While M.A. stated that he did not speak 

with Respondent, id. at 637–38, documentary 

evidence indicated that Respondent did not issue 

a prescription because he felt that M.A. ‘‘IS 

WANTING MEDS FOR SOMEONE ELSE.’’ RX 26. 

Again, there is no evidence establishing that 

Respondent issued a prescription to M.A. 

A.F. (RX 27) acknowledged taking Vicodin and 

sending medical records somewhere. Tr. 638. He 

did not, however, remember where, id.; and in any 

event, there is no evidence that Respondent 

prescribed to him. M.K. (RX 31) acknowledged 

receiving hydrocodone from Liberty ten times, that 

he received his first order without a consultation, 

and that his ‘‘subsequent orders usually did involve 

a two to three minute conversation with someone 

claiming to be a physician or a physician’s 

assistant.’’ Tr. 640. Again, there is no evidence 

establishing that Respondent (as opposed to other 

doctors who worked for Liberty) prescribed to him. 

RX 31. 

Continued 

Respondent, he prescribed 

hydrocodone, Vicodin (a schedule III 

controlled substance which contains 

hydrocodone), and oxycodone, a 

schedule II controlled substance. Id. at 

547. See Physicians’ Desk Reference 526 

(59th ed. 2005); see also 21 CFR 

1308.12(b)(1) & 1308.13(e). 

Liberty gave Respondent a user name 

and password, which he used to access 

PSDOCTOR, a Web-based software 

program which listed his appointments; 

according to Respondent, he ‘‘would 

call the patient and obtain a detailed 

history.’’ Id. at 377. Respondent testified 

that through PSDOCTOR, he could 

retrieve patient records including a 

patient’s history (including the patient’s 

complaint, what drugs the patient was 

taking, what surgeries the patient had 

undergone, and the patient’s name and 

address), charts, and exams including 

radiological reports. Id. at 377–78. 

Respondent also testified that 

‘‘sometimes [the patients] would * * * 

also submit physical exams.’’ 5 Id. at 378. 

Respondent maintained that he would 

‘‘call the patients because [he] want[ed] 

to actually talk to the patients before 

[he] made any decisions on the patient,’’ 

that ‘‘[t]he history was very important,’’ 

id. at 378–79, and that the calls would 

last an average of twenty minutes. Id. at 

615. He also testified that he performed 

a telephonic consultation with every 

patient he prescribed to. Id. at 614–15. 

Relatedly, Respondent maintained 

that based on his experience as a pain 

doctor, he could ‘‘get a sense of whether 

the patient was telling me the truth 

because certain pains in certain areas 

elicit certain responses.’’ Id. at 379. He 

also testified that most patients did not 

‘‘have the savvy’’ to dupe him and that 

‘‘sometimes [he] would lead patients 

down the wrong path to see if they were 

telling the truth * * * because there are 

a lot of drug seekers out there.’’ Id. at 

381–82. He also stated that if a patient 

told him something that did not match 

what was in their medical record, ‘‘we 

would either call their primary doctor’’ 

or ‘‘deny them.’’ Id. at 382. Respondent 

also testified that he ‘‘denied a lot of 

patients and some of the records will 

show that.’’ Id. 

The ALJ found that some of 

Respondent’s testimony was 

contradicted in several material respects 

by other evidence. See ALJ at 12 (¶ 36). 

While Respondent testified that he 

never prescribed without conducting a 

telephone consultation with the patient, 

and that the consultations lasted twenty 

minutes on average, Ms. A.B., who 

received hydrocodone pursuant to a 

prescription issued by Respondent on 

December 8, 2004, see GX 17, stated to 

a DI that within a couple of hours after 

she faxed medical records to Liberty,6

she received a telephone call from a 

doctor which lasted approximately ‘‘one 

minute.’’ GX 35, at 1–2. The doctor, 

whose name she did not recall, asked 

her what her pain was. Id. at 2. Ms. A.B. 

told the doctor that she had previously 

been treated by a doctor in North 

Carolina for headaches caused by nerve 

damage incurred in an automobile 

accident; the doctor then agreed to 

prescribe for her, ninety tablets of 

hydrocodone/apap.7 Id. Ms. A.B. further 

stated that the doctor did not discuss 

with her how her progress would be 

monitored, what to do if she 

experienced side effects, and how to 

contact him in an emergency. Id. 

Another DI interviewed K.B., who had 

also obtained a combination drug 

containing hydrocodone through the 

Liberty Web site. See GX 21; Tr. 116– 

151. K.B. told the DI that she had 

become aware of Liberty through a popup ad and that she went to the Web site 

and filled out a questionnaire. Tr. 117. 

On August 4, 2004, K.B. sent Liberty an 

MRI report showing that she had a 

herniated disk. Id. at 118; RX 15, at 

G0190–91. ‘‘A couple of days later,’’ Tr. 

118, K.B. was contacted by a woman 

who stated that she was a representative 

of Liberty. Id. According to K.B., the 

woman performed a consultation and 

told K.B. that a prescription had been 

approved by Respondent.8 Id. at 118 & 

131. 

On or about December 15, 2004, K.B. 

received ninety tablets of Lortab 

(hydrocodone/apap (10/500)), a 

schedule III controlled substance, 

pursuant to a prescription issued by 

Respondent. Id. at 119–20, GX 21; see 

also PDR at 3240. K.B. received 

approximately twenty-five prescriptions 

through Liberty, the majority of which 

were authorized by Respondent. Tr. 132, 

141, 148, 150. K.B. never had a 

conversation with Respondent, id. at 

140, and had no contact with Liberty 

with respect to any of the subsequent 

orders she placed other than when she 

contacted the Web site to determine the 

status of an order. Id. at 121. K.B. 

further told the DI that she became 

addicted to hydrocodone. Id. at 122. 

K.B. also obtained drugs from another 

Web site during a portion of the period 

in which she obtained drugs through 

Liberty; her primary care physician did 

not know that she was acquiring drugs 

through the internet. Id. at 120–22.9

DEA Investigators also attempted to 

contact the persons identified in 

Respondent’s Exhibits 19–45, as 

patients who were denied prescriptions. 

Tr. 470. The DIs could not contact most 

of the individuals and were able to 

speak with only eight of them. See id. 

at 634–44. Of these eight persons, the 

record establishes that Respondent 

prescribed to only one of them, Ms. S.A. 

See GX 26.10 More specifically, on 


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M.B. (RX 33) acknowledged that he received 

hydrocodone from Liberty four times and ‘‘recalled 

talking to someone at the Liberty Meds Web site but 

[did not] remember who.’’ Tr. 641. K.K. (RX 36) 

acknowledged ordering hydrocodone ‘‘four or five’’ 

times, but identified a different doctor as the 

prescriber. Tr. 641–42. Similarly, T.A. (RX 37) 

stated that he had ordered hydrocodone from 

Liberty ‘‘two or three’’ times, and that he had 

conversations with either a doctor or physician’s 

assistant lasting ‘‘two to three minutes,’’ but could 

only identify a different doctor as the person he 

spoke to. Id. at 642. As above, there is no evidence 

establishing that Respondent prescribed to either 

M.B. or T.A. 

11Here again, the evidence shows that S.A. faxed 

her records to Liberty on August 25, 2004, four 

months before Respondent began his contract with 

Liberty. RX 7, at G0113–14. 

12R.Z. stated that she had sent in only the x-ray 

report and filled out an online questionnaire. Tr. 89. 

R.Z. was never directed to obtain further tests (such 

as a new x-ray), and stated that she did not believe 

that Liberty ever contacted her primary doctor. Id. 

at 79, 89–90. 

13R.Z. also stated that she had conversations 

every three to four months regarding her condition 

with a woman from Liberty who claimed to be a 

physician. Tr. 76, 87. R.Z. testified that she had a 

single conversation with a male caller. Id. at 96. 

14The ALJ noted that it ‘‘is unclear * * * 

whether or not the Respondent had access to, or 

actually reviewed medical records prior to 

prescribing controlled substances to any of Liberty’s 

customers discussed at the hearing.’’ ALJ at 19 n.10. 

While this is correct with respect to some patients, 

with respect to R.Z., it is clear that Respondent 

prescribed without having any medical records that 

supported the prescription. 

In the context of discussing his prescribing 

through Liberty, Respondent also testified that ‘‘I 

will always’’ have some ‘‘data’’ and ‘‘I won’t just 

place them on a prescription.’’ Tr. 442. Perhaps 

Respondent was testifying about his prescribing 

practices at the time of the hearing. Or perhaps he 

considered the answers Liberty’s customers gave to 

the questionnaires to be ‘‘data.’’ In any event, the 

evidence establishes that he prescribed to R.Z. 

without either reviewing a physical exam report or 

the x-ray report. 

15As found above, Respondent never spoke with 

K.B. Tr. 140. During the period she was obtaining 

controlled substances from Liberty, K.B. was under 

the care of another physician; K.B., however, never 

told the latter physician that she was receiving 

drugs from Liberty. Id. at 122, 142–43. 

Respondent maintained that Liberty was ‘‘unable 

to provide all the records’’ because of problems it 

was having with its ‘‘IT person.’’ Tr. 410. However, 

the files for some of the patients appear extensive, 

see RXs 3 (22 pages), 5 (18 pages), 6 (64 pages), 7 

(17 pages), & 14 (23 pages), thus prompting the 

question of why Liberty was able to provide so 

much documentation for these patients but not for 

some of the others. Moreover, the patient files 

indicate that the patients almost always faxed or 

mailed their records to Liberty. Thus, even if the 

records were scanned into Liberty’s computer 

system, Respondent offered no evidence to establish 

what happened to the original records. Finally, 

there is no evidence that Respondent requested a 

subpoena for the records. While the ALJ apparently 

found that Respondent credibly testified that he did 

not receive all of the information he requested, ALJ 

Dec. at 13 n.3., I conclude that the patient files 

Respondent introduced into evidence fairly reflect 

the patient files as obtained by Liberty. 

The ALJ further reasoned that Respondent’s 

testimony supported ‘‘the requirement that [he] 

maintain his own patient records.’’ Id. It is further 

noted that under the New Jersey Board of Medical 

Examiners’ regulation which governs the 

prescribing of controlled substances, ‘‘[t]he 

practitioner shall keep accurate and complete 

December 7, 2004, Respondent 

prescribed to S.A. ninety tablets of 

hydrocodone/apap (7.5/750 mg.). 

Ms. S.A. stated that she ordered 

hydrocodone from Liberty ‘‘at least ten 

times and that she did not speak to any 

physician on the first two occasions.’’ 11

Tr. 643. S.A. further stated that on 

subsequent orders, she had ‘‘very short 

conversations lasting approximately one 

minute or less,’’ but could not recall the 

name of any person she had talked to. 

Id. at 643–44. 

Respondent testified that S.A.’s 

medical record supported the 

prescription he issued and that the drug 

and dosage he prescribed was 

appropriate for her condition. Tr. 451. 

Yet the evidence suggests that the most 

recent medical report available to 

Respondent was an ‘‘Operative Report’’ 

for a procedure which had been 

performed nearly eight months earlier. 

See RX 7, at G0112. Moreover, 

Respondent offered no explanation as to 

why S.A.’s condition was of such a 

nature as to justify prescribing based on 

an eight-month-old report. 

A DI also interviewed R.Z., to whom 

Respondent prescribed 90 tablets of 

Vicodin ES (7.5/750 mg.), on January 5, 

2005. GX 18. R.Z. told the DI that she 

had become aware of Liberty in 

approximately November 2004; 

someone at Liberty put R.Z. in contact 

with a man ‘‘who claimed to be a 

doctor.’’ Tr. 72. R.Z. could not, however, 

remember the name of the doctor, but 

did recall having a phone conversation 

of ‘‘approximately ten minutes’’ 

duration with him in which she was 

asked questions about her condition, 

what type of pain she had, what type of 

pain medication she needed, how she 

tolerated pain medications, and her 

blood pressure. Id. at 73. The doctor 

then told R.Z. that he would prescribe 

to her ninety tablets of Vicodin. Id. at 

74. R.Z. also told the DI that she had 

faxed to Liberty an x-ray report which 

showed that she had a bulging disk.12

Id. R.Z. further told the DI that she had 

received from Liberty monthly 

prescriptions for ninety tablets of 

Vicodin over ‘‘a thirteen to fourteenmonth period.’’ 13 Id. at 77–78. 

Respondent testified that the 

prescription he issued was consistent 

with the findings contained in the x-ray 

report. Id. at 459; RX 10, at G0154. The 

x-ray report contains the notations: 

‘‘Record Received on 1/31/05,’’ and 

‘‘Verified on 1/31/05 By MW.’’ Id. In 

addition, the record includes a 

handwritten note dated ‘‘1/31/05,’’ 

which states in relevant part: ‘‘Attention 

Leisha, Here are the results of the xray 

I had on my back. * * * I would like 

my refill sent when it becomes time to 

do so.’’ Id. at G0153. Respondent further 

testified that ‘‘I don’t see a physical 

exam here but it would be something 

that we would require.’’ Tr. 459. He also 

maintained that in order for R.Z. to get 

an x-ray, ‘‘she had to have some 

history,’’ because ‘‘you can’t refer 

yourself for an x-ray.’’ Id. 

Even so, that a patient needs a referral 

to obtain an x-ray, does not establish 

that Respondent reviewed R.Z.’s history 

and a physical exam report before he 

prescribed to her. Indeed, the absence of 

a physical exam report in R.Z.’s file is 

consistent with her statement that she 

sent in only the x-ray report. See Tr. 89. 

I therefore find that contrary to 

Respondent’s testimony, he did not 

review a physical exam report before 

prescribing to R.Z.14

As for Respondent’s statement that 

the Vicodin prescription he issued to 

R.Z. was consistent with the findings of 

the x-ray report, the evidence shows 

that he issued the prescription on 

January 5, 2005, nearly four weeks 

before Liberty received the x-ray report. 

Respondent therefore could not have 

issued the prescription on the basis of 

the report. 

With respect to K.B. (whose interview 

with a DI is described above), 

Respondent also maintained that a 

report for an MRI which had been done 

ten months earlier, see RX 15, at G0190; 

established that the hydrocodone 

prescription he issued was appropriate. 

Tr. 467. Respondent then testified that 

Respondent ‘‘had been on Toradol and 

Ultram and had not received results.’’ 

Id. Continuing, Respondent stated that 

‘‘[s]he also had gotten Lortab it seems. 

If you look at G0195, in the middle 

where it says 2/19/04, it says renewed 

her Lortab and Flexeril.’’ Id. at 467–68. 

Notably, both pages G0194 and 

G0195, which appear to contain 

progress notes of various visits K.B. 

made to an orthopedic clinic between 

January 15, 2003, and November 29, 

2004, have the notations: ‘‘Record 

Received on 1/31/05,’’ and ‘‘Verified on 

1/31/05 By MW.’’ RX 15, at G0194–95. 

Moreover, each page has a header 

indicating that it was faxed on January 

31, 2005. See id. As found above, 

Respondent issued the prescription to 

K.B. on December 15, 2004, 

approximately six weeks before these 

documents were faxed to Liberty. GX 

21. Here again, Respondent could not 

have relied on the documents when he 

issued the prescription to K.B., 

notwithstanding his testimony that ‘‘we 

would require’’ a physical exam. Tr. 

459.15


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records.’’ N.J. Adm. Code 13:35–7.6(g) (emphasis 

added). There is, however, no requirement under 

federal law that an ‘‘individual practitioner * * * 

keep records of controlled substances in Schedules 

II, III, IV, and V which are prescribed in the lawful 

course of professional practice, unless such 

substances are prescribed in the course of 

maintenance or detoxification treatment of an 

individual.’’ 21 CFR 1304.03. I do not decide 

whether it was permissible under the New Jersey 

regulation for Respondent to maintain medical 

records through the Liberty Web site. 

16Based on the progress notes as well as K.A.’s 

Texas driver’s license, I find that K.A. was a 

resident of Texas. See RX 3, at G0001. 

17 K.S.’s file includes a letter which forwarded 

some records to Liberty. On the letter, there is a 

handwritten notation that the records had been 

reviewed, but that the clinic, which treated K.S., 

was ‘‘closed for lunch.’’ RX 14, at G0170. 

18While the ALJ found that E.M. was a Texas 

resident, ALJ at 27 (FOF 90), RX 16 includes copies 

of E.M.’s driver’s license which appears to indicate 

that she was a New Hampshire resident. Moreover, 

the fax header indicted that the documents were 

faxed to Liberty from a phone number with a 603 

area code, which is an area code for New 

Hampshire. 

The ALJ also noted that the prescription label (GX 

29) was dated ‘‘1/3/04.’’ ALJ at 27 n.18. Based on 

the undisputed evidence that Respondent did not 

commence working for Liberty until December 

2004, the ALJ found that the actual date of the 

prescription was January 3, 2005. Id.; see also Tr. 

535. I adopt this finding. 

Other Patients 

On January 5, 2005, Respondent 

issued a prescription to K.A., a Texas 

resident, for ninety tablets of 

hydrocodone/apap (10/500mg). GX 27. 

The record contains extensive progress 

notes showing that K.A. was being 

treated by a San Antonio, Texas pain 

management specialist during 2004 and 

2005 for neck pain.16 See RX 3. 

Respondent testified that K.A. ‘‘has 

various different problems * * * that 

would cause one to have a ton of severe 

pain.’’ Tr. 426. Respondent testified that 

based on his review of the record, the 

medication and dosage he prescribed 

was appropriate. Id. at 432. Respondent 

offered no testimony, however, as to 

whether he contacted the pain 

management specialist who was treating 

K.A. See generally id. at 426–32. 

On December 20, 2004, Respondent 

prescribed to P.G., a Minnesota resident, 

ninety tablets of hydrocodone/apap (10/ 

500 mg.) with one refill. GX 19. 

Although the most recent progress note 

in P.G.’s record, which was dated April 

13, 2004, indicated that he had 

‘‘[c]hronic low back with right lower 

extremity radicular pain,’’ and that his 

local physician had issued him a 

prescription for twenty tablets of 

Percocet p.r.n., P.G.’s physician further 

observed that ‘‘[l]ong-term use of 

narcotics for back pain is not in his best 

interest and therefore he is given only 

20 tablets at this time.’’ RX 4, at G0024. 

While Respondent testified that his 

prescription was appropriate, Tr. 435, 

when asked on cross-examination 

whether the eight-month-old progress 

note was of sufficient recency to make 

a diagnosis, he testified: ‘‘It really 

depended also on the patients and the 

physical findings but this does seem 

like it was two months later than we 

usually accept. * * *’’ Id. at 525. 

On January 5, 2005, Respondent 

prescribed to D.C., a resident of Georgia, 

ninety tablets of hydrocodone/apap (10/ 

325 mg.). GX 24. The most recent 

progress note in her file prior to this 

prescribing was dated June 24, 2004, 

and indicated that the physician’s 

impression was: ‘‘Probable right C7 

radiculopathy.’’ RX 5, at G0035. When 

asked by his counsel whether this 

would ‘‘indicate that pain should be in 

a particular area?,’’ Respondent 

answered: ‘‘Yes, she should have the 

pain in the right upper extremity. If I 

had spoken with this person about 

giving her a treatment, I would have 

first tried to elicit where her pain was 

coming from.’’ Tr. 437 (emphasis 

added). Respondent then discussed the 

findings of a physical exam which 

occurred on April 21, 2005, and which 

he obviously could not have relied on 

when he issued the prescription three 

months earlier. See id. at 437–38. 

Next, Respondent maintained that he 

would try to confirm with the patient 

whether their reported pain matched 

with ‘‘what it should be.’’ Id. at 439. He 

also maintained that his prescribing was 

consistent with the drug (Vicodin 7.5) 

that the physician, who physically 

examined her three months later, had 

prescribed. Id. at 440; RX 5, at G0032. 

On cross-examination, Respondent 

acknowledged that while the medical 

records showed that D.C. had been by 

an orthopedist and neurologist, neither 

had referred her to him. Tr. 527. When 

asked what his treatment plan was for 

D.C., Respondent could not recall. Id. 

He also did not refer her to a pain clinic 

near where she lived. Id. at 528. 

On December 15, 2004, Respondent 

prescribed to S.K., a resident of Texas, 

ninety tablets of hydrocodone/apap (10/ 

325mg.), with one refill. GX 22. Again, 

Respondent testified that the 

prescription he wrote ‘‘would be 

consistent with what she’s experiencing 

on physical exam here.’’ Tr. 454. While 

Respondent testified that S.K.’s records 

‘‘were accessed through PSDoctor,’’ id. 

at 455; the only medical exam report in 

S.K.’s file is dated ‘‘6/1/05,’’ and was 

faxed on June 10, 2005. See RX 8, at 

G0129–31. Respondent therefore could 

not have relied on the report in issuing 

the prescription. 

On January 6, 2005, Respondent 

prescribed to S.B., a South Carolina 

resident, ninety tablets of Lortab (10/ 

500mg.). GX 27. SB’s patient file 

contains only three documents: a copy 

of her driver’s license, a ‘‘consent for 

treatment’’ form dated ‘‘12/8/04,’’ and 

the results of a blood test taken on 

October 28, 2003. See RX 11. 

Respondent maintained that S.B.’s file 

was ‘‘incomplete,’’ and that ‘‘she 

would’’ have been asked to provide 

other data. Tr. 460. The ALJ did not, 

however, make any findings regarding 

the credibility of Respondent’s 

testimony pertaining to S.B. In light of 

the other instances in which 

Respondent prescribed even though a 

patient’s file was missing information, I 

find that it is more likely than not that 

he prescribed to S.B. without obtaining 

any additional medical documentation. 

On January 5, 2005, Respondent 

prescribed to K.S., a resident of Texas, 

ninety tablets of hydrocodone/apap (10/ 

500) with one refill. GX 29. K.S.’s 

records include extensive progress notes 

which show that she had last been seen 

by a physician on September 28, 2004, 

and had last been prescribed a 

controlled substance (codeine/apap) on 

December 20, 2004. RX 14, at G0182. 

Respondent testified that ‘‘[i]t seemed 

like she had really good follow-up here 

according to these progress notes,’’ Tr. 

462–63, and that the prescription he 

wrote ‘‘would be appropriate for’’ the 

condition documented in the record. Id. 

at 465. Respondent offered no 

explanation as to why he was 

prescribing to a patient who had 

received a controlled substance 

prescription from another physician 

only two weeks earlier. Moreover, given 

his acknowledgment that K.S.’s records 

showed that she was receiving good 

follow-up care, he offered no testimony 

that he had contacted K.S.’s physician 

to coordinate her care and ensure that 

she was not engaged in doctor 

shopping.17

On January 3, 2005, Respondent 

prescribed ninety tablets of 

hydrocodone/apap (10/325 mg.) to E.M., 

a New Hampshire resident.18 Beside two 

copies of E.M.’s driver’s license, her 

patient file contains two forms: (1) A 

Family and Medical Leave Act 

certification that E.M. had a serious 

illness, and (2) an Office of Workers 

Compensation Programs’ form 

documenting a medical examination 

(performed on October 1, 2004) and 

diagnosis and supporting the need for 

certain restrictions on E.M.’s workrelated duties. See RX 16 at G0200–01. 

The latter form indicates that E.M. had 

low back pain and tendonitis in her 

hand and shoulder. Id. at G0201. The 

form, however, contains no 


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19Again, while Respondent testified that the 

records that he requested from Liberty were 

incomplete, he offered no explanation as to why 

Liberty was able to provide some records for a 

patient but not the missing ones. Moreover, the 

evidence indicates that many of the patients faxed 

their records to Liberty. Even if these records were 

scanned into a database, Respondent offered no 

evidence as to what became of the original 

documents. 

20Respondent practiced pain management at a 

clinic in Livingston, New Jersey. RX 1; ALJ at 5. L.F. 

lived in Wallington, and L.W. lived in Warren, New 

Jersey. RXs 20 & 23. In accordance with 5 U.S.C. 

§ 556(e), I take official notice of the fact that all 

three of these cities are located in northern New 

Jersey. See 5 Rand McNally, Business Traveler’s 

Road Atlas 62, 68–69 (1994). Notwithstanding the 

proximity of his clinic to L.F.’s and L.W.’s 

residences, Respondent did not require them to 

appear for a physical examination. 

An agency ‘‘may take official notice of facts at any 

stage in a proceeding—even in the final decision.’’ 

U.S. Dept. of Justice, Attorney General’s Manual on 

the Administrative Procedure Act 80 (1947). In 

accordance with the Administrative Procedure Act 

and DEA’s regulation, Respondent is ‘‘entitled on 

timely request to an opportunity to show to the 

contrary.’’ 5 U.S.C. 556(e); see also 21 CFR 

1316.59(e). Accordingly, Respondent may file a 

motion for reconsideration within fifteen days of 

service of this order which shall commence with 

the mailing of the order. 

21The ALJ also found that Respondent authorized 

refills of schedule II controlled substances and that 

he ‘‘was unaware of the forms needed to actually 

prescribe a schedule II controlled substance.’’ ALJ 

14 (citing Tr. 604–05). Respondent testified, 

however, that he was not ‘‘aware of’’ ‘‘a requirement 

for a Schedule II substance to be prescribed on a 

specifically identified form.’’ Tr. 605. 

Except for in an emergency situation, the 

dispensing of a schedule II controlled substance 

requires ‘‘a written prescription signed by the 

practitioner,’’ and the ‘‘original written, signed 

prescription [must be] presented to the pharmacist 

for review prior to the actual dispensing of the 

controlled substance.’’ 21 CFR 1306.11(a). However, 

no special form is required to prescribe a schedule 

II drug and Respondent’s testimony was correct. 

Federal law does, however, prohibit the refilling of 

a schedule II controlled substance. 21 U.S.C. 829(a). 

documentation of her vital signs. See id. 

Moreover, when asked by his counsel 

whether the prescription he issued to 

E.M. was appropriate, Respondent 

answered that ‘‘we do prescribe 

medicine for’’ tendonitis and carpal 

tunnel, but that ‘‘it seems like this chart 

is incomplete,’’ Tr. 469, and that ‘‘[i]t 

might have been missing EMGs or other 

things.’’ Id. at 536. He again testified 

that it was his practice to look for other 

data before prescribing such as 

‘‘radiographic or EMGs.’’ Id. at 537. 

While Respondent acknowledged that 

E.M.’s record did not have any such 

data, he then maintained that ‘‘this 

might be an incomplete record.’’ Id. 

Yet several of the documents 

contained in E.M.’s patient file indicate 

that they were faxed to Liberty on 

December 31, 2004. Id. at G0202–03.19

Again, Respondent offered no credible 

explanation as to why E.M’s file as 

turned over to him had these documents 

(which Liberty obtained shortly before 

he issued the prescription to her) but 

not the others which ‘‘might have been 

missing.’’ Id. at 536. I therefore find that 

there were no such additional 

documents in E.M.’s patient file when 

he prescribed to her. 

On December 15, 2004, Respondent 

issued to L.F., a resident of New Jersey, 

a prescription for ninety tablets of 

hydrocodone/apap (7.5/750mg.) with 

one refill. GX 23. Respondent testified 

that L.F.’s records showed that his 

physician ‘‘did a physical exam,’’ and 

that ‘‘[t]here is also one on 10/8/04 by 

the same physician which was 

consistent with what was found on 10/ 

8/03, * * * you can see the same 

vertebral bodies marked off, so it’s very 

consistent with what the patient is 

having.’’ Tr. 456. Respondent 

maintained that L.F. had a condition 

which ‘‘merit[ed] intervention for pain,’’ 

id., and that the dosage he prescribed 

was consistent with his condition. Id. at 

457. 

On cross-examination, the 

Government asked Respondent to 

compare the handwriting of the two 

reports of ‘‘Examination Findings,’’ 

which were dated ‘‘10/8/03’’ and ‘‘10/8/ 

04’’ respectively. Id. at 530; see also RX 

9, at G0142 & G0145. Respondent 

acknowledged that ‘‘[a]ll the 

handwriting [on the two reports] is in 

exactly the same position.’’ Tr. 530. 

Respondent testified, however, that 

when he prescribed to L.F., he ‘‘did not’’ 

recognize that one of the documents had 

probably been falsified. Id. Moreover, 

none of the documents in L.F’s file 

contained his vital signs. See RX 9. And 

as with the other Liberty patients, 

Respondent did not physically examine 

L.F., even though he lived in northern 

New Jersey, and near where he 

practiced.20 See id. at G0147, GX 23. 

On December 7, 2004, Respondent 

prescribed to L.W., another New Jersey 

resident, ninety tablets of hydrocodone/ 

apap (10/325 mg.) with one refill. GX 

20. L.W.’s patient file consisted of three 

pages: a progress note dated June 17, 

2004, a sheet indicating that L.W. was 

faxing her driver’s license, and a blurred 

copy of a driver’s license. See RX 12. 

The progress note lists several 

diagnostic codes and under the 

handwritten notation of ‘‘CODES,’’ 

states: ‘‘polycystic ovaries,’’ 

‘‘adhesions,’’ and ‘‘pelvic pain.’’ RX 12, 

at G0158. Next to the column for 

history, the document includes a 

notation of ‘‘Percocet # 120.’’ Id. 

With respect to L.W., Respondent 

maintained that ‘‘[t]hese patients have 

pelvic pain generally to the lower 

abdomen.’’ Tr. 461. Respondent then 

testified that ‘‘[t]here is no radiological 

exam that you would do to tell you 

anything differently[,] [b]ut obviously 

they know she has polycystic ovaries 

according to this physician’s history and 

physical.’’ Id. Respondent testified that 

the prescription was appropriate for a 

patient with this condition, and that he 

believed someone had verified L.W.’s 

identity with her physician because 

‘‘her license was blurred.’’ Id. 

Respondent did not, however, testify 

that he called Respondent’s physician. 

Respondent’s Other Evidence 

Respondent also testified that he had 

proposed that Liberty use a narcotic 

contract under which a patient was 

required to agree not to give or sell his 

drugs to others, as well as not to seek 

drugs from other physicians. Tr. 384; 

see also RX 11, at G0156. According to 

the contract, a patient would be 

dismissed for failing to comply. Tr. 384. 

Yet Respondent was not ‘‘sure how’’ 

Liberty determined whether a patient 

was obtaining drugs from other sources 

such as another Web site. Id. at 385. 

Respondent gave conflicting 

testimony as to whether he had 

prescribed oxycodone to Liberty’s 

patients. First, he testified that he did so 

at a frequency that was ‘‘pretty much 

equal’’ to that of his hydrocodone 

prescribing. Id. at 585. Later, however, 

when Respondent was asked by the ALJ 

as to whether he ever recalled 

prescribing schedule II controlled 

substances to a Liberty patient, he 

appeared to backtrack from this 

testimony answering: ‘‘Yes, there was a 

patient in our system you mean.’’ Id. at 

605.21

Respondent further testified that he 

believed that his prescribing practices 

complied with New Jersey’s regulations 

and were consistent with a 2001 DEA 

Guidance Document. With respect to the 

New Jersey regulation, which provides 

that ‘‘a practitioner shall not dispense 

drugs or issue prescriptions to an 

individual, * * * without first having 

conducted an examination, which shall 

be appropriately documented in the 

patient record,’’ except for in six 

defined circumstances, N.J. Admin Code 

§ 13:35–7.1A, Respondent testified that 

exceptions three (‘‘[f]or continuation 

medications on a short term basis for a 

new patient prior to the patient’s first 

appointment’’) and four (‘‘[f]or an 

established patient who, based on sound 

medical practice, the physician believes 

does not require a new examination 

before issuing a new prescription’’), 

‘‘could apply.’’ Tr. 589; see also N.J. 

Admin. Code § 13:35–7.1A(b)(3) & (4). 

Respondent did not, however, identify 

any patient he prescribed to over the 


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22At the hearing, Respondent’s counsel slightly 

altered the text of the answer published in the 

Guidance Document. The alteration did not, 

however, materially change the meaning of the 

answer. 

23Respondent also testified that the first time he 

saw the 2001 Guidance Document was at the 

hearing. Tr. 522. 

24The National Center on Addiction and 

Substance Abuse (CASA) has reported that ‘‘[t]he 

number of people who admit abusing controlled 

prescription drugs increased from 7.8 million in 

1992 to 15.1 million in 2003.’’ National Center on 

Addiction and Substance Abuse, Under the 

Counter: The Diversion and Abuse of Controlled 

Prescription Drugs in the U.S. 3 (2005) (GX 3). 

Moreover, ‘‘[a]pproximately six percent of the U.S. 

population (15.1 million people) admitted abusing 

controlled prescription drugs in 2003, 23 percent 

more than the combined number abusing cocaine 

(5.9 million), hallucinogens (4.0 million), inhalants 

(2.1 million) and heroin (328,000).’’ Id. Relatedly, 

‘‘[b]etween 1992 and 2003, there has been a * * * 

140.5 percent increase in the self-reported abuse of 

prescription opioids’’; in the same period, the 

‘‘abuse of controlled prescription drugs has been 

growing at a rate twice that of marijuana abuse, five 

times greater than cocaine abuse and 60 times 

greater than heroin abuse.’’ Id. at 4. 

CASA has further reported that teenagers 

‘‘represent an especially vulnerable group,’’ because 

‘‘[t]eens may view prescription drugs as relatively 

safe either when abused alone or in combination 

with alcohol or other drugs.’’ Id. According to 

CASA, ‘‘[i]n 2003, 2.3 million teens ages 12 to 17 

(9.3 percent) reported abusing a controlled 

prescription drug in the past year; 83 percent of 

them reported abusing opioids.’’ Id. Moreover, 

‘‘[b]etween 1992 and 2002, the number of [first 

time] teenage prescription opioid abusers increased 

by 542 percent.’’ Id. at 35. 

Finally, CASA noted that ‘‘[i]nternet sites not 

adhering to state licensing requirements, medical 

board standards or federal law have enabled 

consumers to obtain controlled prescription drugs 

without a valid prescription or physician 

supervision and without regard to age.’’ Id. at 63. 

CASA also noted that ‘‘illegal [i]nternet pharmacies 

have introduced a new avenue through which 

unscrupulous buyers and users can purchase 

controlled substances for unlawful purposes.’’ Id. 

Moreover, ‘‘[t]he age of the customers appears not 

to be an issue for Internet pharmacies,’’ and that 

there are ‘‘no mechanisms in place to block 

children from purchasing controlled drugs over the 

Internet.’’ Id. at 66. 

Internet who later came in for an 

appointment. Nor did he testify that any 

of the persons whose names were found 

on the prescription sheets and labels 

was an established patient. 

Respondent also maintained that his 

Internet prescribing was consistent with 

the statements in this Agency’s 

Guidance Document, Dispensing and 

Purchasing Controlled Substances Over 

the Internet, 66 FR 21181 (2001). More 

specifically, Respondent maintained 

that his practices were consistent with 

the Guidance Document because ‘‘[w]e 

always had the patient’s chief 

complaint, history was taken, a physical 

examination was done by another 

physician, and we collected all the 

evidence together and then I made my 

decision based on all the evidence 

including the radiographical evidence.’’ 

Tr. 417. Respondent further maintained 

that ‘‘it was not’’ his practice to 

prescribe based solely on Internet 

correspondence. Id. 

Finally, Respondent’s counsel read to 

him the following question and answer 

from the Guidance Document: 

I am a Physician. Does the need for a 

Physical Exam Mean that I Cannot Engage in 

Telemedicine and Prescribe Controlled 

Substances? 

No, DEA does not intend to limit the 

ability of doctors to engage in telemedicine. 

If the patient cannot travel to your office, but 

you supervise an exam given by a nurse or 

other professional, you can then prescribe the 

needed medications based on the results, to 

the extent that State law allows. In this case, 

your decision on the appropriateness of the 

medication is based on facts (symptoms, 

blood pressure, etc.) that have been verified 

by a qualified third party and observed by 

you electronically. 

GX 6, at 5; Tr. 418.22

Respondent was then asked by his 

counsel whether his Internet practice 

was consistent with this statement. Tr. 

418–19. Respondent answered: ‘‘Yes. In 

fact, we’ve exceeded those, also 

communicating with the physicians, not 

just electronically but via telephone.’’ 

Id. at 419. Respondent then explained 

that ‘‘the radiographical reports were 

read by a physician radiologist, the 

physical exams were done by another 

physician, so sometimes we have a 

couple of physicians involved in the 

process. Id.23

Respondent did not, however, 

identify a single instance in which he 

supervised and observed a physical 

exam as it was being performed by 

another qualified medical professional. 

Moreover, Respondent did not have any 

recollection as to having spoken to any 

of the physicians who were identified in 

the patient records that were introduced 

into evidence in this proceeding. Id. at 

573. Finally, he was unaware as to 

whether any of the patient notes he 

made were ever sent by Liberty to the 

primary care physicians of those he 

prescribed to. Id. at 614. He also never 

gave written referrals for Liberty 

patients to see local doctors. Id. at 512. 

Respondent testified that he had 

stopped performing telemedicine 

consultations for Liberty in late 

December of 2005. Id. at 487. He also 

represented that it was not his ‘‘present 

intention’’ to resume internet based 

prescribing. Id. 

As noted above, Respondent 

introduced into evidence a number of 

printouts from Liberty’s software with 

the heading ‘‘Patient Information for 

Appointment.’’ See RXs 19–45. These 

printouts establish that in several 

instances, patients were denied drugs 

because they were receiving them from 

other sources. See RXs 19, 21, 27, 32, 

33, 39. Moreover, in other instances 

Respondent did not approve a 

prescription, see RX 23, 34, 43; and in 

at least one case, Respondent denied a 

prescription because he felt the person 

‘‘was wanting meds for someone else.’’ 

RX 26. Moreover, the printouts suggest 

that in other instances, either Liberty or 

Respondent denied requests because the 

person was seeking the drugs too soon, 

RX 22, 35, 36; the patient’s records had 

not been verified, RX 28; or the patient 

needed to be evaluated and send in 

records before Respondent approved a 

refill. RX 42 & 44. Only one of these 

printouts, however, corresponds with a 

patient (S.A.) who was identified above 

as having received a prescription which 

was issued by Respondent.24 Compare 

RX 44 with GX 26. 

Discussion 

Section 304(a) of the Controlled 

Substances Act (CSA) provides that 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 under such 

section.’’ 21 U.S.C. 824(a)(4). With 

respect to a practitioner, the Act 

requires the consideration of the 

following factors in making the public 

interest determination: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing * * * controlled substances. 

(3) The applicant’s conviction record under 

Federal or State laws relating to the 

manufacture, distribution, or dispensing of 

controlled substances. 

(4) Compliance with applicable State, 

Federal, or local laws relating to controlled 

substances. 

(5) Such other conduct which may threaten 

the public health and safety. 

Id. section 823(f). 

‘‘[T]hese factors are * * * considered 

in the disjunctive.’’ Robert A. Leslie, 

M.D., 68 FR 15227, 15230 (2003). I ‘‘may 

rely on any one or a combination of 

factors, and may give each factor the 

weight [I] deem[] appropriate in 

determining whether a registration 

should be revoked.’’ Id. Moreover, I am 

‘‘not required to make findings as to all 

of the factors.’’ Hoxie v. DEA, 419 F.3d 

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

v. DEA, 412 F.3d 165, 173–74 (D.C. Cir. 

2005). 

In this matter, it is undisputed that 

neither the State of New York nor the 


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25Under settled precedent, neither of these 

factors is dispositive. See Edmund Chein, 72 FR 

6580, 6590 n.22 (2007); Mortimer B. Levin, 55 FR 

8209, 8210 (1990). 

26On October 15, 2008, the President signed into 

law, the Ryan Haight Online Pharmacy Consumer 

Protection Act of 2008, Pub. L. 110–425, 122 Stat. 

4820 (2008). Section 2 of the Act prohibits the 

dispensing of a prescription controlled substance 

‘‘by means of the Internet without a valid 

prescription,’’ and defines, in relevant part, the 

‘‘[t]he term ‘valid prescription’ [to] mean[] a 

prescription that is issued for a legitimate medical 

purpose in the usual course of professional practice 

by * * * a practitioner who has conducted at least 

1 in-person medical evaluation of the patient.’’ 122 

Stat. 4820. Section 2 further defines ‘‘[t]he term ‘inperson medical evaluation’ [to] mean[] a medical 

evaluation that is conducted with the patient in the 

physical presence of the practitioner, without 

regard to whether portions of the evaluation are 

conducted by other health professionals.’’ Id. These 

provisions do not, however, apply to Respondent’s 

conduct. 

27As the California Court of Appeal has noted: 

the ‘‘proscription of the unlicensed practice of 

medicine is neither an obscure nor an unusual state 

prohibition of which ignorance can reasonably be 

claimed, and certainly not by persons * * * who 

are licensed health care providers. Nor can such 

persons reasonably claim ignorance of the fact that 

authorization of a prescription pharmaceutical 

constitutes the practice of medicine.’’ Hageseth v. 

Superior Court, 59 Cal. Rptr.3d 385, 403 (Ct. App. 

2007). 

28 I acknowledge that in Gonzales, the Supreme 

Court stated that ‘‘[a]s for the federal law factor, 

though it does require the Attorney General to 

decide ‘[c]ompliance’ with the law, it does not 

suggest he may decide what the law says. Were it 

otherwise, the Attorney General could 

State of New Jersey has taken action 

against Respondent’s medical license 

(factor one). It is also undisputed that 

Respondent has not been convicted of 

an offense related to controlled 

substances under federal or state law 

(factor three).25 This proceeding 

focused, however, on Respondent’s 

experience in dispensing controlled 

substances and his record of compliance 

with applicable laws. As discussed 

below, the evidence pertaining to these 

factors is disturbing and establishes—at 

a minimum—that Respondent 

committed numerous violations of both 

Federal and state laws. 

Factor Two and Four—Respondent’s 

Experience in Dispensing Controlled 

Substances and Record of Compliance 

With Applicable Controlled Substance 

Laws 

Under a longstanding DEA regulation, 

a prescription for a controlled substance 

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

a legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). This 

regulation further provides that ‘‘an 

order purporting to be a prescription 

issued not in the usual course of 

professional treatment * * * is not a 

prescription within the meaning and 

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

person issuing it, shall be subject to the 

penalties provided for violations of the 

provisions of law relating to controlled 

substances.’’ Id. As the Supreme Court 

recently explained, ‘‘the prescription 

requirement * * * ensures patients use 

controlled substances under the 

supervision of a doctor so as to prevent 

addiction and recreational abuse. As a 

corollary, [it] also bars doctors from 

peddling to patients who crave the 

drugs for those prohibited uses.’’ 

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

(2006) (citing United States v. Moore, 

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

Under the CSA, it is fundamental that 

a practitioner must establish a bonafide 

doctor-patient relationship in order to 

act ‘‘in the usual course of * * * 

professional practice’’ and to issue a 

prescription for a ‘‘legitimate medical 

purpose.’’ Moore, 423 U.S. at 141–43. 

The CSA, however, generally looks to 

state law to determine whether a doctor 

and patient have established a bonafide 

doctor-patient relationship. See Kamir 

Garces-Mejias, 72 FR 54931, 54935 

(2007); United Prescription Services, 

Inc., 72 FR 50397, 50407 (2007); 

Dispensing and Purchasing Controlled 

Substances Over the Internet, 66 FR at 

21182–83.26

Moreover, ‘‘[a] physician who engages 

in the unauthorized practice of 

medicine’’ under state laws ‘‘is not a 

‘practitioner acting in the usual course 

of * * * professional practice’’’ under 

the CSA. United Prescription Services, 

72 FR at 50407 (quoting 21 CFR 

1306.04(a)). As explained therein, this 

rule is supported by the plain meaning 

of the Act, which defines the ‘‘[t]he term 

‘practitioner’ [to] mean[] a physician 

* * * licensed, registered, or otherwise 

permitted, by the United States or the 

jurisdiction in which he practices * * * 

to * * * dispense * * * a controlled 

substance,’’ 21 U.S.C. 802(21), and 

‘‘[t]he term ‘dispense’ [to] mean[] to 

deliver a controlled substance to an 

ultimate user * * * by, or pursuant to 

the lawful order of, a practitioner.’’ Id. 

section 802(10). See also id. section 

823(f) (‘‘The Attorney General shall 

register practitioners * * * to dispense 

* * * if the applicant is authorized to 

dispense * * * controlled substances 

under the laws of the State in which he 

practices.’’). 

As I noted in United Prescription 

Services, shortly after the CSA’s 

enactment, the Supreme Court 

explained that ‘‘[i]n the case of a 

physician [the Act] contemplates that he 

is authorized by the State to practice 

medicine and to dispense drugs in 

connection with his professional 

practice.’’ Moore, 423 U.S. at 140–41 

(emphasis added) (quoted at 72 FR 

50407). A controlled-substance 

prescription issued by a physician who 

lacks the license or other authority 

required to practice medicine within a 

State is therefore unlawful under the 

CSA. See 21 CFR 1306.04(a) (‘‘An order 

purporting to be a prescription issued 

not in the usual course of professional 

treatment * * * is not a prescription 

within the meaning an intent of’’ the 

CSA); cf. 21 CFR 1306.03(a)(1) (‘‘A 

prescription for a controlled substance 

may be issued only by an individual 

practitioner who is * * * [a]uthorized 

to prescribe controlled substances by 

the jurisdiction in which he is licensed 

to practice his profession[.]’’).27

Under the regulation of the New 

Jersey Board of Medical Examiners, ‘‘a 

practitioner shall not dispense drugs or 

issue prescriptions to an individual 

* * * without first having conducted an 

examination, which shall be 

appropriately documented in the patient 

record.’’ N.J. Admin Code § 13:35– 

7.1A(a). This rule further requires that 

‘‘[a]s part of the patient examination, the 

practitioner shall’’: 

1. Perform an appropriate history and 

physical examination; 

2. Make a diagnosis based upon the 

examination and all diagnostic and 

laboratory tests consistent with good medical 

care; 

3. Formulate a therapeutic plan and 

discuss such plan, along with the basis for 

the plan and the risks and benefits of various 

treatment options, with the patient; and 

4. Ensure the availability of the physician 

or coverage for appropriate follow-up care. 

Id. 

It is undisputed that Respondent did 

not perform a physical examination on 

any of the Liberty patients he prescribed 

to, including those who were New 

Jersey residents. Instead, Respondent 

asserted that two exceptions provided in 

the New Jersey rule ‘‘could apply’’ to his 

internet prescribing. Tr. 589. The first of 

these authorizes the prescribing of 

‘‘continuation medications on a short 

term basis for a new patient prior to the 

patient’s first appointment’’; the second 

authorizes prescribing ‘‘[f]or an 

established patient who, based on sound 

medical practice, the physician believes 

does not require a new examination 

before issuing a new prescription.’’ N.J. 

Admin Code 13:35–7.1A(b)(3) & (4). 

As the record establishes, none of 

Respondent’s Liberty patients were ever 

expected to see him for a ‘‘first 

appointment,’’ and none did. Moreover, 

Respondent offered no evidence that 

any of his Liberty patients were his 

‘‘established patients.’’ 28


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authoritatively interpret ‘State’ and ‘local laws,’ 

which are also included in 21 U.S.C. 823(f), despite 

the obvious constitutional problems in his doing 

so.’’ 546 U.S. at 264. 

In determining whether Respondent established a 

legitimate doctor-patient relationship with the 

Liberty patients, this Agency must necessarily 

examine state law. Moreover, the requirement that 

a practitioner must generally perform a physical 

exam in order to properly diagnose a patient is one 

which is universally accepted throughout the 

medical community and by state medical boards. 

See American Medical Association, Guidance for 

Physicians on Internet Prescribing (GX 8); see also 

Federation of State Medical Boards, Internet 

Prescribing Language By State (available at http:// 

www.fsmb.org/ncip_resources.html/). 

Notably, Respondent cites no decision of either 

the New Jersey Board of Medical Examiners or the 

New Jersey courts holding that conduct similar to 

his internet prescribing was lawful under the 

exceptions which he contended ‘‘could apply.’’ Tr. 

589. If Respondent had, this Agency would, of 

course, respect that decision. 

29 It is noted that the rule does ‘‘not prohibit a 

licensee who is on call or covering for another 

licensee from treating and/or consulting a patient of 

such other licensee.’’ Ga. Comp. R. & Regs. 360–3– 

.02(6). Respondent did not maintain that he was 

covering for, or consulting with, other physicians 

who were treating either A.B. or D.C. 

30This statute provides: 

(a) A person who is physically located in another 

state * * * and who, through the use of any means, 

including electronic * * * or other means of 

telecommunication, through which medical 

information or data is transmitted, performs an act 

that is part of a patient care service located in this 

state * * * that would affect the diagnosis or 

treatment of the patient is engaged in the practice 

of medicine in this state. Any person who performs 

such acts through such means shall be required to 

have a license to practice medicine in this state and 

shall be subject to regulation by the board. 

Ga. Code Ann. § 43–34–31.1(a). While the statute 

includes exceptions when, inter alia, the physician 

‘‘[p]rovides consultation services at the request of 

a physician licensed in this state,’’ or ‘‘[p]rovides 

consultation services in the case of an emergency,’’ 

id. § 43–34–31.1(b)(1) & (2), neither exception 

applies to Respondent. 

31The ALJ also noted that Respondent was 

required to be licensed to practice medicine in 

Massachusetts and that ‘‘[o]nly a practitioner who 

is authorized to prescribe controlled substances 

may do so.’’ ALJ at 39 (citing Mass. Gen. Laws. ch. 

94C, § 18(a)). In light of the Massachusetts’ Board 

clear interpretation as set forth in its policy on 

Internet Prescribing, I conclude that it is 

unnecessary to address whether Respondent also 

violated the State’s provisions requiring a license 

and controlled substance registration which appear 

to allow an out-of-state practitioner to issue a 

prescription to a state resident in some instances. 

Id. § 18(c). 

32The ALJ also found that Respondent violated 

Minnesota law when he prescribed to P.G. because 

he lacked either a state medical license or a 

telemedicine registration. ALJ at 39–40 (citing 

Minn. Stat. § 147.081). The ALJ observed that 

Minnesota allows a physician to provide 

telemedicine services if four conditions are met 

including that the physician register with the State. 

ALJ at 40 (citing Minn. Stat. § 147.032 Subd. 1(a)). 

The Minnesota statute, however, exempts a 

physician who holds a valid license to practice in 

another state ‘‘if * * * the services are provided on 

an irregular or infrequent basis,’’ which is defined 

as ‘‘if the person provides the services less than 

once a month or provides the services to fewer than 

ten patients annually.’’ Id. Subd. 2(2). 

The Government’s evidence established that 

Respondent issued only a single prescription to 

P.G.; there is no evidence that he prescribed to any 

other Minnesota residents. While it may well be the 

Continued 

In his brief, Respondent also contends 

that New Jersey’s exception ‘‘[f]or a 

patient examined by a healthcare 

professional who is in collaborative 

practice with the practitioner’’ also 

applies. Id. § 13:35–7.1A(b)(5); see Resp. 

Prop. Findings 52. However, with 

respect to this exception, Respondent 

testified that ‘‘I don’t know what 

collaborative means there,’’ Tr. 589, and 

in any event, there is no credible 

evidence that Respondent collaborated 

with any of the practitioners who may 

have previously examined the Liberty 

patients. Id. at 573 & 614. 

Respondent thus failed to establish a 

legitimate doctor-patient relationship 

under the New Jersey regulation. I 

therefore further hold that Respondent’s 

prescriptions to the Liberty patients 

were not ‘‘issued for a legitimate 

medical purpose by an individual 

practitioner acting in the usual course of 

his professional practice,’’ 21 CFR 

1306.04(a) and thus violated the CSA as 

well. 

Respondent’s prescriptions also 

violated numerous laws of the States 

where the patients were located. 

Respondent prescribed controlled 

substances to two residents of Georgia, 

A.B. and D.C. Under the rules of the 

Georgia Composite State Board of 

Medical Examiners, it is 

‘‘unprofessional conduct’’ to 

‘‘[p]rovid[e] treatment and/or 

consultation recommendations via 

electronic or other means unless the 

licensee has performed a history and 

physical examination of the patient 

adequate to establish differential 

diagnoses and identify underlying 

conditions and/or contra-indications to 

the treatment recommended.’’ Ga. 

Comp. R. & Regs. 360–3.02(6).29

Moreover, Respondent violated Georgia 

law because he engaged in the 

unlicensed practice of medicine. See Ga. 

Code Ann. § 43–34–31.1.30

Respondent also prescribed controlled 

substances to four residents of Texas, 

S.A., K.A., S.K., and K.S. Respondent 

did not hold a Texas medical license. 

See Tex. Occup. Code § 155.001; see 

also id. § 151.056(a) (‘‘A person who is 

physically located in another 

jurisdiction but who, through the use of 

any medium, including an electronic 

medium, performs an act that is part of 

a patient care service initiated in this 

state, * * * and that would affect the 

diagnosis or treatment of the patient, is 

considered to be engaged in the practice 

of medicine in this state and is subject 

to appropriate regulations by the 

board.’’); 22 Tex. Admin. Code 

§ 174.4(c) (‘‘Physicians who treat and 

prescribe through the Internet are 

practicing medicine and must possess 

appropriate licensure in all jurisdictions 

where patients reside.’’). 

Respondent also lacked the state 

registration required to prescribe a 

controlled substance. See Tex. Health & 

Safety Code § 481.061(a) (requiring state 

registration to dispense); id. 

§ 481.063(d) (requiring as a condition 

for registration that ‘‘a practitioner [be] 

licensed under the laws of this state’’). 

Respondent thus also violated Texas 

law, and the CSA, in prescribing 

controlled substances to that State’s 

residents. See Moore, 423 U.S. at 140– 

41 (‘‘In the case of a physician [the CSA] 

contemplates that he is authorized by 

the State to practice medicine and to 

dispense drugs in connection with his 

professional practice.’’) (emphasis 

added); United Prescription Services, 72 

FR at 50407 (‘‘A controlled-substance 

prescription issued by a physician who 

lacks the license [or other authority 

required] to practice medicine within a 

State is * * * unlawful under the 

CSA.’’); 21 U.S.C. 802(10) (defining 

‘‘ ‘dispense’ [to] mean[] to deliver a 

controlled substance to an ultimate user 

* * * by, or pursuant to the lawful 

order of, a practitioner’’). 

Respondent prescribed a controlled 

substance to R.Z., a Massachusetts 

resident. Massachusetts law follows 

nearly verbatim the CSA’s prescription 

requirement. Compare Mass. Gen. Laws 

ch. 94C, § 19(a), with 21 CFR 1306.04(a). 

In December 2003, the Massachusetts 

Board of Registration in Medicine 

issued the following interpretation of 

the State’s prescription law: 

[t]o satisfy the requirement that a 

prescription be issued by a practitioner in the 

usual course of his professional practice, 

there must be a physician-patient 

relationship that is for the purpose of 

maintaining the patient’s well-being and the 

physician must conform to certain minimum 

norms and standards for the care of patients, 

such as taking an adequate medical history 

and conducting an appropriate physical and/ 

or mental status examination and recording 

the results. Issuance of a prescription, by any 

means, including the Internet or other 

electronic process, that does not meet these 

requirements is therefore unlawful. 

Commonwealth of Massachusetts, Board 

of Registration in Medicine, Policy 03– 

06 INTERNET PRESCRIBING (Adopted 

Dec. 17, 2003).31 As the Board’s 

interpretation makes plain, Respondent 

acted outside of the usual course of 

professional practice when he 

prescribed a controlled substance to 

R.Z., and therefore violated both 

Massachusetts law and the CSA.32


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case that Respondent issued additional 

prescriptions to P.G. or other Minnesota residents, 

the Government has not proved that he engaged in 

the unauthorized practice of medicine within 

Minnesota. 

33Respondent produced no evidence that his 

internet practice came within any of the exceptions 

to New Hampshire’s licensing requirement. See 

N.H. Rev. Stat. § 329:21. 

34Similar to other State’s regulations (such as 

New Jersey’s), the South Carolina rules recognizes 

several circumstances in which a physician can 

lawfully prescribe to a patient he had not 

personally examined. See S.C. Code of Regs. R. 81– 

28(B). Respondent has not, however, demonstrated 

that his prescribing to S.B. came within any of the 

exceptions that excuse a physician from personally 

examining his patient before prescribing. 

35Respondent contends that his internet practice 

‘‘was not substantially different from the evaluation 

process he would perform when he was contacted 

by a nurse from [the hospital] while he was on 

call,’’ in that ‘‘without examining the patient 

directly, [he] would draw upon his substantial 

experience and expertise to get the information he 

needed * * * to determine what care the patient 

required.’’ Response to Gov.’s Exceptions at 5. It 

does not require a degree in medicine, however, to 

recognize that there is a critical difference between 

the two situations. In the on-call situation, a nurse 

is personally observing the patient and likely 

relating the patient’s vital signs and other 

information regarding the patient’s symptoms/ 

condition to the physician. In contrast, even when 

Respondent, in the course of his internet 

prescribing, reviewed the results of physical 

examinations, he had no current information 

available as to the patient’s vital signs and other 

symptoms. 

Respondent also issued a prescription 

for controlled substance to E.M., a New 

Hampshire resident. In April 2004, the 

New Hampshire Board of Medicine 

issued Guidelines on internet 

prescribing. In pertinent part, the Board 

stated: 

The members of the NH Board of Medicine 

have interpreted that a sufficient examination 

in the establishment of a valid physicianpatient relationship cannot take place 

without an initial face-to-face encounter with 

the patient. It requires at a minimum: (1) 

Verifying the person requesting the 

medication is who they claim to be; (2) 

establishing a diagnosis through the use of 

acceptable medical practices, such as patient 

history, mental status exam, physical exam, 

and appropriate diagnostic and laboratory 

testing by the prescribing physician; (3) 

discussing with the patient the diagnosis and 

the evidence for it, and the risks and benefits 

of various treatment options; and (4) ensuring 

availability of the physician or coverage for 

the patient for appropriate follow-up care; 

(which usually includes a face-to-face 

encounter at least once a year and as often 

as is necessary to assure safe continuation of 

medication). Complete management of a 

patient by Internet, e-mail, or other forms of 

electronic communication is inappropriate. 

New Hampshire Board of Medicine, 

Guidelines for Physician Internet and 

Telephone Prescribing (April 7, 2004). 

Moreover, under New Hampshire law, 

‘‘[a]ny person shall be regarded as 

practicing medicine * * * who shall 

diagnose, treat * * * or prescribe any 

treatment of medicine for any disease or 

human ailment.’’ N.H. Rev. Stat. § 329:1. 

Moreover, practicing medicine without 

a license or as ‘‘otherwise authorized 

according to the law of’’ the State 

constitutes the ‘‘unlawful practice’’ of 

medicine.33 Id. § 329:24. I thus conclude 

that Respondent acted outside of the 

usual course of professional practice in 

prescribing a controlled substance to 

E.M. and violated both New Hampshire 

law and the CSA. 

Respondent also prescribed a 

controlled substance to S.B., a South 

Carolina resident. In May 2001, the 

South Carolina Board of Medical 

Examiners promulgated its regulation 

on ‘‘Contact with Patients before 

Prescribing.’’ S.C. Code Regs. 81–28. 

This regulation declares that ‘‘[i]t is 

unprofessional conduct for a physician 

to initially prescribe drugs to an 

individual without first establishing a 

proper physician-patient relationship.’’ 

Id. Continuing, the regulation states that 

forming ‘‘a proper relationship’’ requires 

that a physician: 

(1) Personally perform an appropriate 

history and physical examination, make a 

diagnosis, and formulate a therapeutic plan. 

This process must be documented 

appropriately; and 

(2) Discuss with the patient the diagnosis 

and evidence for it, and the risks and benefits 

of various treatment options; and 

(3) Insure the availability of the physician 

or coverage for appropriate follow-up care. 

Id.34 Here too, Respondent failed to 

establish a valid doctor-patient 

relationship with S.B. under South 

Carolina law and thus violated the CSA 

when he prescribed a controlled 

substance to her. 21 CFR 1306.04(a). 

Respondent also issued a prescription 

to K.B., a resident of Alabama. Under 

Alabama law, ‘‘[t]he practice of 

medicine * * * across state lines means 

the practice of medicine * * * as 

defined in Section 34–24–50(1), as it 

applies to * * * [t]he rendering of 

treatment to a patient located within 

this state by a physician located outside 

this state as a result of transmission of 

individual patient data by electronic or 

other means from this state to such 

physician or his or her agent.’’ Ala. 

Code § 34–24–501(a); see also id. § 34– 

24–50 (defining the ‘‘practice of 

medicine’’ as meaning ‘‘[t]o diagnose, 

treat, correct, advise or prescribe for any 

human disease, ailment, injury, 

infirmity, deformity, pain or other 

condition, physical or mental, real or 

imaginary, by any means or 

instrumentality’’). Moreover, under 

Alabama law, ‘‘[n]o person shall engage 

in the practice of medicine * * * across 

state lines in this state * * * unless he 

* * * has been issued a special purpose 

license to practice medicine * * * 

across state lines.’’ Id. § 34–24–502(a). 

Respondent did not hold either a 

medical license or a special purpose 

license to practice medicine across state 

lines as required by Alabama law. In 

issuing the prescription to K.B., 

Respondent not only violated Alabama 

law, he acted outside of the usual course 

of professional practice and thereby 

violated the CSA as well. 

As the foregoing demonstrates, 

Respondent repeatedly violated both the 

CSA and various State laws in 

prescribing to Liberty’s customers. 

Respondent nonetheless contends that 

the Supreme Court’s decision in 

Gonzales ‘‘indicates that the 

continuation of his registration should 

not turn on [this Agency’s] 

determination of whether in fact he had 

satisfied the relevant standards for 

establishing a doctor-patient 

relationship.’’ Resp. Br. at 51; see also 

id. at 52 (arguing that Gonzales 

‘‘militates against a determination by 

the agency, for purposes of determining 

whether [Respondent’s] registration 

should be revoked, as to whether [his] 

practices with internet patients satisfied 

state * * * standards for effective 

medical practice’’). 

Contrary to Respondent’s view, 

Gonzales expressly recognized that one 

of the core purposes of the prescription 

requirement was to ‘‘ensure[] [that] 

patients use controlled substances 

under the supervision of a doctor so as 

to prevent addiction and recreational 

abuse.’’ 546 U.S. at 274. Respondent’s 

internet prescribing practices beg the 

question of how he was supervising the 

persons to whom he prescribed, to 

prevent them from becoming addicted 

to, or engaging in recreational abuse of, 

the drugs.35 Examining whether 

Respondent established legitimate 

doctor-patient relationships under state 

law with those to whom he prescribed, 

is thus a necessary incident of 

determining whether he violated the 

CSA. 

Respondent further argues that the 

DEA 2001 Guidance ‘‘does not require 

the doctor personally to take the history 

or perform the [physical] examination.’’ 

Resp. Br. at 50. Relatedly, Respondent 

contends that ‘‘in terms of the indicia’’ 

of a legitimate doctor-patient 

relationship as stated in the Guidance, 

‘‘there is clearly room for a physician to 

issue a prescription premised in part 

upon an examination or history 

conducted by another professional.’’ Id. 

At the hearing, however, Respondent 

testified that he had not seen the 

Guidance prior to this proceeding, Tr. 


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36The Guidance is not a regulation and thus does 

not have the force and effect of law. Rather, it is 

a Notice which simply provides guidance. 

37Respondent also contends that his shortfalls 

were of one ‘‘seeking to practice in an area where 

the technical requirements are both widely 

dispersed and in flux.’’ Resp. Br. 46; see also id. at 

52. However, at the time he commenced his 

contract with Liberty, each of the States discussed 

above had already either enacted laws, or issued 

regulations or policy statements, addressing the 

propriety of this activity. And in any event, 

Respondent cannot credibly argue that his conduct 

should be excused because the legal requirements 

were in flux when he made no inquiry as to what 

the requirements were. 

38With respect to his prescribing following the 

service of the Show Cause Order, Respondent does 

not maintain that he did not prescribe controlled 

substances in this period. Rather, he argues that I 

should consider the fact that the Order alleged that 

he ‘‘improperly prescribed drugs [phentermine and 

phendimetrazine] that he never in fact prescribed.’’ 

Response to Gov.’s Exceptions at 11. Respondent 

ignores, however, that the Show Cause Order also 

quoted the prescription requirement of 21 CFR 

1306.04(a), and the New Jersey regulation setting 

forth the requirements for prescribing a drug 

including that a ‘‘practitioner shall * * * perform 

an appropriate history and physical examination.’’ 

Show Cause Order at 1 & 3. Moreover, the Show 

Cause Order alleged that Respondent was 

prescribing to persons that he was not physically 

examining and had no prior doctor-patient 

relationship with, and was thus violating 21 CFR 

1306.04. Id. at 6. The Show Cause Order thus 

provided Respondent with fair warning as to the 

illegality of his conduct. 39For example, did Liberty’s employees simply 

ask whether a person had been a patient? Did they 

ask whether the patient was still being treated by 

the physician? Did they ask what the physician’s 

diagnosis was? And did they ask if there was any 

evidence that the patient had engaged in drug 

seeking behavior? Moreover, in some instances, 

Respondent prescribed before the records were even 

sent to Liberty. Finally, in at least one case (patient 

L.F.), it appeared that some of the records were 

fraudulent. 

414–15; Respondent therefore could not 

have been induced into believing that 

his conduct was legal by the Guidance. 

Moreover, the Guidance made clear that 

its discussion of the criteria for 

establishing a legitimate doctor-patient 

relationship was based on a summary of 

the standards adopted by the various 

States. See 66 FR at 21182 (GX 6, at 4).36

As Respondent acknowledged, he did 

not conduct his own review of state 

laws or seek legal advice concerning the 

legality of prescribing through the 

Liberty website. At the time he 

commenced his contract with Liberty, 

numerous state medical boards had 

already issued either policy statements 

or regulations (including those States 

discussed above) which addressed the 

legality of a physician’s prescribing to 

patients he had not personally 

examined. Moreover, at the time 

Respondent commenced his contract 

with Liberty, this Agency had published 

several final orders revoking 

practitioners’ registrations based on 

their prescribing over the internet and 

without performing a physical 

examination.37 See, e.g., Marvin L. Gibbs, 

Jr., M.D., 69 FR 11658, 11661 (issued 

Mar. 11, 2004); Mark Wade, M.D., 69 FR 

7018, 7021–22 (issued Feb. 12, 2004); 

Rick Joe Nelson, M.D., 66 FR 30752, 

30753 (2001) (noting immediate 

suspension of practitioner’s registration 

based on internet prescribing). 

In his response to the Government’s 

Exceptions, Respondent contends that 

because of Boswell’s ‘‘attentiveness to 

regulatory and compliance issues,’’ he 

was ‘‘led * * * to believe that his 

internet practice would be proper.’’ 

Response to Gov.’s Exceptions 7. This is 

not a persuasive argument. Indeed, one 

would think that a licensed professional 

and the holder of an appointment as a 

clinical professor would be well aware 

of such state laws and regulations as 

those prohibiting the unauthorized 

practice medicine and those defining 

something as fundamental to the 

practice of medicine as the steps 

necessary to establish a legitimate 

doctor-patient relationship. As the 

California Court of Appeal has 

explained: 

[the] proscription of the unlicensed practice 

of medicine is neither an obscure nor an 

unusual state prohibition of which ignorance 

can reasonably be claimed, and certainly not 

by persons * * * who are licensed health 

care providers. Nor can such persons 

reasonably claim ignorance of the fact that 

authorization of a prescription 

pharmaceutical constitutes the practice of 

medicine. 

Hageseth v. Superior Court, 59 Cal. 

Rptr.3d 385, 403 (Ct. App. 2007). 

Respondent further contends that his 

case is distinguishable from other 

Agency cases involving internet 

prescribers. See Resp. Br. at 43–46. 

More specifically, Respondent contends 

that in contrast to other internet 

prescribers, he ‘‘issued no more than a 

handful of prescriptions a day,’’ that he 

prescribed ‘‘only after reviewing the 

patient’s medical record and conducting 

a searching personal interview,’’ that he 

‘‘only prescribed medications that were 

pertinent to his area of medical 

expertise,’’ and that he ‘‘rejected many 

requests for medication that he deemed 

inappropriate.’’ Id. at 43. Relatedly, 

Respondent contends that Liberty 

attempted to identify persons who were 

obtaining drugs from multiple sources 

and that it verified medical records. Id. 

at 45. He also contends that ‘‘[h]e 

genuinely made a good faith effort’’ to 

practice ‘‘medicine properly and 

effectively.’’ Resp. to Gov.’s Exceptions 

at 10. 

As to these contentions, the evidence 

is mixed. While there is no evidence 

rebutting his contention that he issued 

only a small number of prescriptions 

each day, by his own admission he 

consulted for Liberty for approximately 

one year during which he issued 

between 800 and 1200 prescriptions. 

However, the record does not establish 

the extent to which these prescriptions 

were for controlled substances. 

Moreover, he continued to prescribe for 

three months after being served with the 

Order to Show Cause.38 While it seems 

likely that he prescribed controlled 

substances during this period, the 

Government did not establish the scope 

of his controlled substance prescribing 

activity after he was served with the 

Order. 

Moreover, notwithstanding his 

contention that he prescribed only after 

reviewing a patient’s medical record 

and ‘‘conducting a searching’’ interview, 

the evidence establishes that in some 

instances (R.Z. and S.K.) he prescribed 

before Liberty even obtained the 

records, and that in other instances he 

relied on records that—according to his 

own testimony—were outdated (P.G) 

and even indicated that narcotics were 

not in the patient’s best interest. 

Relatedly, as the ALJ noted, other 

evidence casts serious doubt as to his 

assertions that he always conducted a 

consultation with the patients, let alone 

a searching interview of them. ALJ at 12. 

(FoF 36). 

On the other hand, there is some 

evidence that Liberty rejected patients 

who were seeking drugs from multiple 

sources, or who were seeking drugs to 

give to others. There is also evidence 

that in some instances, Liberty verified 

a patient’s records with the patient’s 

original physicians although it is 

unclear what this process involved and 

how often it was undertaken.39

Relatedly, even though the patient files 

typically included photocopies of a 

driver’s license, there is no guarantee 

that the drugs were actually going to 

these persons. 

Moreover, the ALJ found that 

Respondent ‘‘declined to prescribe 

medications in many instances where 

Liberty customers were directed to 

him.’’ ALJ at 17 (FoF 52). The 

Government produced no evidence to 

rebut Respondent’s contention as to the 

frequency of his refusals to prescribe. 

Relatedly, there is also evidence that 

Respondent rejected a request for drugs 

when he thought the person would 

divert or was seeking drugs from 

multiple sources. Moreover, there is 

evidence that Respondent refused to 

prescribe because a person’s complaint 

(and the supporting records) had not 

been verified. 


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40Respondent also provided Liberty with an 

electronic copy of his signature. Tr. 511 & 570. 

While Respondent credibly testified that he had no 

reason to suspect that Liberty was using his 

signature to authorize prescriptions which he had 

not approved, he acknowledged that he had no way 

of determining whether Liberty was misusing his 

signature. Id. at 570. This Agency has previously 

held that failing to safeguard one’s signature 

constitutes conduct inconsistent with the public 

interest. See Robert G. Hallermeier, M.D., 62 FR 

26818, 26820 (1997). 

41Notably, while the ALJ credited this testimony, 

she was less than impressed with Respondent’s 

testimony that he did not intend to resume internet 

prescribing. See ALJ 15 n.4 (‘‘Although 

[Respondent] appeared to be credible when he 

testified here to his intent, I do question how he 

resolves this intent with his continued interest in 

telemedicine.’’). Indeed, intentions can change, and 

Respondent’s statement is hardly an unequivocal 

statement that he will not resume such conduct in 

the future. 

42Southwood was decided before the ALJ issued 

her recommended decision in this matter. The ALJ 

did not, however, even acknowledge the decision. 

While the record as a whole may not 

conclusively show that Respondent 

knowingly diverted, at the very least it 

establishes that Respondent acted with 

reckless disregard for his obligations as 

a practitioner under both the CSA and 

numerous state laws. Moreover, 

Respondent acknowledged that he 

prescribed schedule II drugs and 

authorized refills of these prescriptions, 

in violation of federal law. See 21 U.S.C. 

829(a).40 The Government has therefore 

proved that Respondent has committed 

acts that render his registration 

‘‘inconsistent with the public interest.’’ 

Id. § 824(a)(4). 

Sanction 

Under Agency precedent, where, as 

here, ‘‘the Government has proved that 

a registrant has committed acts 

inconsistent with the public interest, a 

registrant must ‘‘ ‘present sufficient 

mitigating evidence to assure the 

Administrator that [he] can be entrusted 

with the responsibility carried by such 

a registration.’ ’’ Medicine ShoppeJonesborough, 73 FR 364, 387 (2008) 

(quoting Samuel S. Jackson, 72 FR 

23848, 23853 (2007) (quoting Leo R. 

Miller, 53 FR 21931, 21932 (1988)). 

‘‘Moreover, because ‘past performance is 

the best predictor of future 

performance,’ ALRA Labs, Inc. v. DEA, 

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

has repeatedly held that where a 

registrant has committed acts 

inconsistent with the public interest, the 

registrant must accept responsibility for 

[his] actions and demonstrate that [he] 

will not engage in future misconduct.’’ 

Medicine Shoppe, 73 FR at 387; see also 

Jackson, 72 FR at 23853; John H. 

Kennedy, 71 FR 35705, 35709 (2006); 

Prince George Daniels, 60 FR 62884, 

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

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

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

an ‘‘important factor[]’’ in the public 

interest determination). 

The ALJ acknowledged that the 

Government had ‘‘clearly 

demonstrated’’ that Respondent’s 

internet prescribing practices violated 

the CSA. ALJ at 43. While the ALJ 

recognized that Respondent’s internet 

prescribing was ‘‘egregious conduct,’’ 

id., that he ‘‘fail[ed] to be totally truthful 

during his testimony,’’ id. at 44, and that 

he ‘‘demonstrated a lack of sound 

judgment’’ in continuing his internet 

prescribing for three months following 

the service of the Show Cause Order, id., 

she also noted that he ‘‘is clearly a very 

educated, dedicated and talented 

physician,’’ id.; that he had been 

practicing medicine for eleven years, 

and that ‘‘the only instances of [his] 

improper handling of controlled 

substances were related to his’’ internet 

prescribing. Id. Balancing Respondent’s 

misconduct against his overall practice, 

the ALJ recommended that I continue 

his registration, subject only to the 

condition that he not prescribe over the 

internet. Id. 

As explained above, this Agency has 

repeatedly held that accepting 

responsibility for one’s misconduct is an 

‘‘important factor’’ in the public interest 

determination. See Hoxie, 419 F.3d at 

483 (upholding Agency’s consideration 

of whether registrant/applicant has 

admitted fault); Jackson, 72 FR at 23853; 

Kennedy, 71 FR at 35709; Daniels, 60 FR 

at 62887. The ALJ, however, made no 

finding as to whether Respondent had 

accepted responsibility for his 

misconduct. 

While Respondent testified that it was 

not his ‘‘present intention’’ to resume 

internet prescribing,41 the record as a 

whole does not establish that he has 

accepted responsibility for his 

misconduct. I acknowledge that the DI 

who served Respondent with the Show 

Cause Order described him as 

cooperative, and that Respondent 

admitted that his internet prescribing 

was even more extensive than that 

shown by the Government. In his 

testimony, however, Respondent 

continued to maintain that his 

prescribing without performing a 

physical exam was lawful under New 

Jersey’s regulation. Moreover, 

Respondent did not acknowledge that 

he violated either the CSA, or any other 

state laws and regulations, whether they 

related to the standards for establishing 

a legitimate doctor-patient relationship 

or addressed the unauthorized practice 

of medicine. Respondent’s failure to 

acknowledge the illegality of his 

conduct does not inspire confidence 

that he will refrain from engaging in 

similar acts in the future. 

Moreover, while a registrant must 

accept responsibility and demonstrate 

that he will not engage in future 

misconduct in order to establish that 

his/her continued registration is 

consistent with the public interest, these 

are not the only factors that are relevant 

in determining the appropriate sanction. 

As I have previously noted, ‘‘[n]either 

Jackson nor any other agency decision 

holds * * * that the Agency cannot 

consider the deterrent value of a 

sanction in deciding whether a 

registration should be [suspended or] 

revoked.’’ Southwood Pharmaceuticals, 

Inc., 72 FR 36487, 36504 (2007).42

In Southwood, I explained that ‘‘even 

when a proceeding serves a remedial 

purpose, an administrative agency can 

properly consider the need to deter 

others from engaging in similar acts.’’ 

Id. (citing Butz v. Glover Livestock 

Commission Co., Inc., 411 U.S. 182, 

187–88 (1973)). I further noted that the 

‘‘[c]onsideration of the deterrent effect 

of a potential sanction is supported by 

the CSA’s purpose of protecting the 

public interest, see 21 U.S.C. 801, and 

the broad grant of authority conveyed in 

the statutory text, which authorizes the 

[suspension or] revocation of a 

registration when a registrant ‘has 

committed such acts as would render 

[his] registration * * * inconsistent 

with the public interest,’ id. section 

824(a)(4), and [which] specifically 

directs the Attorney General to consider 

[‘such other conduct which may 

threaten public health and safety,’ id. 

section 823(f)].’’ Southwood, 72 FR at 

36504. 

I acknowledge that Respondent has 

impressive credentials, and that except 

for his internet prescribing, there is no 

evidence that he violated the CSA or 

state laws in his years of practice as an 

anesthesiologist and pain management 

specialist. However, under any 

circumstance, Respondent’s conduct as 

an internet prescriber would be 

disturbing. That he holds an 

appointment as a clinical professor 

renders his conduct even more so. 

Relatedly, Respondent’s testimony as to 

why he believed that his Internet 

prescribing was lawful and failed to 

perform his own inquiries into the 

legality of this practice is especially 

unpersuasive and does not excuse his 

failure to obey the law. 

Moreover, Respondent’s Internet 

prescribing was not a brief sojourn into 

illegality. Rather, he engaged in his 


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Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Notices 10095 

43 It is also noted that Respondent continued his 

internet prescribing for three months after he 

received the Show Cause Order, even though the 

Order put him on notice as to the requirements for 

a lawful prescription under both the CSA and state 

law. While Respondent did not dispute that he 

prescribed controlled substances during this period, 

I do not rely on this conduct in setting the sanction 

because the Government did not identify a single 

controlled substance prescription that he issued 

following the service of the Show Cause Order. If 

the Government had shown specific instances of 

Respondent’s prescribing of controlled substances 

following service of the Order, I would have found 

that he knowingly diverted controlled substances 

and revoked his registration. 

44Respondent can choose to commence serving 

his suspension earlier by tendering his Certificate 

of Registration and any order forms he has been 

issued to the nearest DEA office. 

misconduct for a year, during which 

time he likely issued between 800 to 

1,200 prescriptions. Yet the record does 

not establish the extent to which these 

prescriptions were for controlled 

substances.43

I acknowledge that proceedings under 

Section 304 are non-punitive. But even 

were I to ignore that Respondent has not 

accepted responsibility for his 

misconduct, and credit his testimony 

that he did not intend to resume his 

internet practice, I would still conclude 

that a lengthy suspension of his 

registration is warranted. 

As found above, the diversion and 

abuse of prescription drugs has 

increased dramatically, with the number 

of people admitting to such abuse 

(approximately 15.1 million) exceeding 

by twenty-three percent, the number 

who abuse cocaine, hallucinogens, 

inhalants and heroin combined. 

Moreover, the growth rate of 

prescription drug abuse is twice the 

growth rate of marijuana abuse and five 

times the growth rate of cocaine abuse; 

between 1992 and 2002, the growth in 

prescription opioid abuse among 

teenagers grew by 542 percent. 

The use of the internet and telephone 

to prescribe to individuals with whom 

a physician has not established a bona 

fide doctor-patient relationship is one of 

the primary means by which controlled 

substances are being diverted and 

obtained for recreational abuse. The 

growth of this means of diversion 

represents a grave threat to public 

health and safety. Accordingly, this 

Agency has repeatedly revoked the 

registrations of numerous practitioners 

who have committed similar acts by 

prescribing over the internet without 

establishing legitimate doctor-patient 

relationships. See, e.g., Kamir GarcesMejias, 72 FR 54931 (2007); William 

Lockridge, 71 FR 77791 (2006); Mario 

Diaz, 71 FR 70788 (2006). The ALJ did 

not, however, even acknowledge any of 

the numerous Agency decisions to this 

effect. 

Respondent maintains that his case is 

distinguishable from these and other 

reported decisions involving internet 

prescribers because he ‘‘genuinely 

believed * * * that he was practicing 

medicine properly and effectively[,]’’ 

and ‘‘genuinely made a good faith effort 

to do so.’’ Response to Gov.’s Exceptions 

at 10. He also contends that he ‘‘is an 

extraordinarily dedicated and tireless 

physician who saw the internet as a way 

to care for more patients,’’ and that 

while he ‘‘can be faulted’’ for ‘‘having 

trusted colleagues and new business 

associates when he should have been 

more skeptical,’’ ‘‘the price should not 

be his career.’’ Id. at 14. 

It is true that in other Agency 

decisions revoking the registrations of 

internet prescribers, the evidence 

strongly supported the conclusion that 

the physicians were engaged in 

intentional acts of diversion. Here, by 

contrast, the evidence does not establish 

that he knowingly distributed controlled 

substances to those who were seeking 

the drugs to abuse them or to sell them 

to abusers. His conduct—which is 

extraordinary for its recklessness— 

nonetheless violated the CSA. 

Continuing Respondent’s registration, 

subject only to the condition that he 

refrain from prescribing over the 

Internet, is no sanction at all given the 

numerous state laws and new Federal 

law which prohibit this practice in the 

manner Respondent engaged in it. 

Adopting the ALJ’s recommendation 

would not only ‘‘ignore how 

irresponsibly [Respondent] acted,’’ 

Southwood, 71 FR at 36503; it would 

also signal to others that one can ignore 

the law (and his obligation to determine 

what the law is) and yet incur no 

consequence for having done so. Given 

the extraordinary harm to public health 

and safety caused by internet 

prescribing, this is not the message that 

should be sent to those who 

contemplate prescribing controlled 

substances in this manner. Rather, such 

persons should understand that they are 

responsible for knowing the law and 

acting in conformity therewith, and that 

there will be serious consequences for 

those who fail to do so. 

Accordingly, I conclude that 

Respondent’s registration should be 

suspended for a period of one year. 

Moreover, Respondent’s pending 

application for renewal of his 

registration will be held in abeyance 

during the course of the suspension. 

Upon completion of the suspension, his 

application will be approved provided 

that he fulfills the following condition. 

Because Respondent has not 

acknowledged that his internet 

prescribing practices violated the CSA, 

he must provide a sworn statement to 

this effect. If Respondent complies with 

this condition (and he commits no other 

acts which would warrant the denial of 

his application), the Agency will 

expeditiously grant his renewal 

application. If, however, if he fails to do 

so, his application will be denied. 

Order 

Pursuant to the authority vested in me 

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

28 CFR 0.100(b) & 0.104, I hereby order 

that the DEA Certificate of Registration 

issued to Joseph Gaudio, M.D., be, and 

it hereby is, suspended for a period of 

one year. I further order that 

Respondent’s pending application to 

renew his registration be, and it hereby 

will be, held in abeyance pending the 

completion of the period of suspension 

and Respondent’s providing to this 

Agency a sworn statement 

acknowledging that his internet 

prescribing activities violated the 

Controlled Substances Act and DEA 

regulations. This Order is effective April 

8, 2009.44

Dated: February 26, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–4903 Filed 3–6–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Foreign Claims Settlement 

Commission 

F.C.S.C. Meeting Notice No. 2–09 

The Foreign Claims Settlement 

Commission, pursuant to its regulations 

(45 CFR Part 504) and the Government 

in the Sunshine Act (5 U.S.C. 552b), 

hereby gives notice in regard to the 

scheduling of meetings for the 

transaction of Commission business and 

other matters specified, as follows: 

Date and Time: Wednesday, March 

18, 2009, at 10:30 a.m. 

Subject Matter: Issuance of Proposed 

Decisions, Amended Proposed 

Decisions, Final Decisions and Orders 

in claims against Albania. 

Status: Open. 

All meetings are held at the Foreign 

Claims Settlement Commission, 600 E 

Street, NW., Washington, DC. Requests 

for information, or advance notices of 

intention to observe an open meeting, 

may be directed to: Administrative 

Officer, Foreign Claims Settlement 

Commission, 600 E Street, NW., Room 


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