49704 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

1See also ALJ Ex. 1, at ¶¶ 5–6. 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 16–17] 

Lon F. Alexander, M.D.; Decision and 

Order 

On February 4, 2016, the Deputy 

Assistant Administrator, of the then 

Office of Diversion Control, issued an 

Order to Show Cause to Lon F. 

Alexander, M.D. (hereinafter, 

Respondent), of Hattiesburg, 

Mississippi. ALJ Ex. 1, at 1. The Show 

Cause Order proposed the denial of 

Respondent’s application for a DEA 

Certificate of Registration as a 

practitioner, on the ground that his 

‘‘registration is inconsistent with the 

public interest.’’ Id. (citing 21 U.S.C. 

823(f)). 

As for the Agency’s jurisdiction, the 

Show Cause Order alleged that 

Respondent had previously held a 

registration which he surrendered for 

cause on January 16, 2014. Id. The 

Order further alleged that on January 9, 

2015, Respondent applied for a new 

registration as a practitioner in 

schedules II through V, at the proposed 

registered address of 36 Bridgefield 

Turn, Hattiesburg, Mississippi. Id. 

As for the substantive grounds for the 

proceeding, the Show Cause Order 

raised multiple allegations to the effect 

that, on numerous occasions in 2011 

through 2013, Respondent violated 

federal and state law by issuing 

controlled substance prescriptions to his 

wife ‘‘that were nontherapeutic, were 

for other than a legitimate medical 

purpose, and were issued outside of the 

usual course of [his] professional 

practice.’’ Id. at 1–3. The Show Cause 

Order alleged that Respondent 

‘‘repeatedly issued’’ prescriptions for 

schedule IV controlled substances 

which included zolpidem tartrate, 

alprazolam, and diazepam, ‘‘when she 

was concurrently being issued 

prescriptions for the same or similar 

class of drugs by her own psychiatrist, 

which [he] did without [the] 

psychiatrist’s knowledge or 

permission.’’ Id. The Order further 

alleged that Respondent’s ‘‘actions 

dramatically increased the chances of 

[his] wife’s dependency, overdose, or 

diversion of those controlled 

substances, while also potentially 

complicating her psychiatric 

condition.’’ Id. (citing 21 CFR 1306.04; 

Miss. Admin. Code Part 2640, Ch. 1, r. 

1.7, 1.10, and 1.16; Miss. Code Ann. 

Sec. 73–25–29(3) & (13)).1

The Show Cause Order also alleged 

that on various occasions from 2011 

through 2013, Respondent violated 

federal and state law by issuing his wife 

prescriptions for hydrocodone, then a 

schedule III narcotic, as well as other 

controlled substances, which were also 

nontherapeutic, for other than a 

legitimate medical purpose, and were 

outside the usual course of professional 

practice. Id. at 2–3. Specifically, the 

Show Cause Order alleged that ‘‘[o]n at 

least one occasion in 2011,’’ Respondent 

issued prescriptions for hydrocodone 

and diazepam ‘‘to [his] wife 

concurrently with another prescription 

[for clonazepam] issued by her . . . 

psychiatrist,’’ and that he did so 

‘‘without her psychiatrist’s knowledge 

or permission.’’ Id. at 2. The Order again 

alleged that Respondent’s ‘‘actions 

dramatically increased the chances of 

[his] wife’s dependency, overdose, or 

diversion of . . . controlled 

substance[s], while also potentially 

complicating her psychiatric 

condition.’’ Id. (citing same authorities 

as above). 

Next, the Show Cause Order alleged 

additional instances of non-therapeutic 

prescribing by Respondent to his wife in 

that, ‘‘[o]n at least four different 

occasions in 2013,’’ he ‘‘repeatedly 

issued . . . prescriptions for 

hydrocodone . . . zolpidem tartrate . . . 

and alprazolam . . . when she was 

concurrently being issued other 

controlled substances prescriptions for 

the same or similar drugs, as well as 

amphetamines, by her . . . psychiatrist, 

which [he] did without his knowledge 

or permission.’’ Id. at 2–3. As with the 

previous allegations, the Order alleged 

that Respondent’s ‘‘actions dramatically 

increased the chances of her 

dependency, overdose, or diversion of 

those controlled substances, while also 

potentially complicating her psychiatric 

condition.’’ Id. at 3 (citing same 

authorities as above). 

The Show Cause Order also alleged 

that ‘‘[o]n at least fifteen different 

occasions between 2011 and 2013, 

[Respondent] violated state and federal 

law by issuing’’ to his wife prescriptions 

for hydrocodone, and/or zolpidem, and/ 

or alprazolam, ‘‘without conducting any 

examination of [his] wife (or 

documenting such in her file) or noting 

the . . . prescriptions in her patient 

chart.’’ Id. (citing same authorities as 

above). The Show Cause Order then 

alleged that ‘‘[o]n at least nine occasions 

between 2011 and 2013, [Respondent] 

violated state and federal law by 

issuing’’ to his wife prescriptions for 

these drugs, ‘‘without conducting 

sufficient examinations of [her] (or 

documenting such in her file).’’ Id. 

(citing same authorities as above). 

Finally, the Show Cause Order alleged 

that Respondent ‘‘engaged in conduct 

which may threaten public health and 

safety . . . by attempting to mislead 

DEA investigators.’’ Id. (citing 21 U.S.C. 

823(f)(5)). Specifically, the Government 

alleged that, ‘‘on February 2, 2016, 

[Respondent] turned over to DEA in 

response to an administrative subpoena 

a record purporting to be the patient 

file’’ of his wife. Id. The Order alleged 

that the file ‘‘contained false entries’’ in 

that it contained ‘‘repeated reference to 

conversations with and attempts to 

contact [his wife’s] treating psychiatrist’’ 

and that ‘‘DEA’s investigation . . . 

indicate[s] that these statements and 

others presented as part of the 

purported patient file are false.’’ Id. 

Following service of the Show Cause 

Order, Respondent, through his counsel, 

requested a hearing on the allegations. 

ALJ Ex. 2. The matter was placed on the 

docket of the Office of Administrative 

Law Judges and assigned to ALJ Charles 

Wm. Dorman. Following pre-hearing 

procedures, the ALJ conducted an 

evidentiary hearing in Jackson, 

Mississippi on June 29–30, 2016, at 

which both parties elicited testimony 

from witnesses and submitted various 

documents for the record. Following the 

hearing, both parties submitted briefs of 

their proposed findings of fact, 

conclusions of law, and argument. 

On September 20, 2016, the ALJ 

issued his Recommended Decision. 

Therein, with respect to Factors Two 

(Respondent’s experience in dispensing 

controlled substances) and Four 

(compliance with applicable laws 

related to controlled substances), the 

ALJ found that the Government had 

proved that Respondent violated 21 CFR 

1306.04, Mississippi Code Sec. 73–25– 

29(3) and 73–25–29(13), as well as 

Mississippi Administrative Rules 1.7, 

1.10, and 1.16 when he issued 

numerous controlled substance 

prescriptions to his wife. 

Specifically, the ALJ found that 

during 2011, Respondent issued nine 

zolpidem, two alprazolam, seven 

hydrocodone, and one diazepam 

prescription(s) in violation of these 

provisions. R.D. at 39–40. The ALJ also 

found that during 2012, Respondent 

issued five alprazolam prescriptions, 

and that during 2013, he issued 11 

alprazolam prescriptions in violation of 

these provisions. Id. at 41–43. The ALJ 

further found that in 2013, Respondent 

issued five hydrocodone prescriptions 

and one zolpidem prescription in 

violation of these provisions. Id. at 44. 

In addition to the above, the ALJ 

found that between 2011 and 2013, 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49705 

Respondent prescribed hydrocodone 11 

times, zolpidem 12 times, and 

alprazolam five times without 

documenting the prescriptions or a prior 

examination in his wife’s patient file in 

violation of various provisions of 

Mississippi law and administrative 

rules. Id. at 46. He also found that on 

nine occasions when Respondent did 

document a prescription in his wife’s 

file, he failed to include information 

required by state rules such as a medical 

history, examination results, or a 

diagnosis. Id. at 47–48 (citing Miss. 

Admin. Rule 1.4). The ALJ further 

concluded that ‘‘nothing in . . . 

Respondent’s file for his wife 

necessarily indicates that [he] ever 

conducted any type of physical or 

mental status examination of his wife 

prior to prescribing controlled 

substances to her.’’ Id. at 48. He thus 

found proved the ‘‘allegation that the 

Respondent failed to conduct 

examinations and/or lacked adequate 

documentation of examinations of his 

wife’’ in violation of various provisions 

of Mississippi law and administrative 

rules. Id. at 49. 

Turning to Factor Five (such other 

conduct which may threaten public 

health or safety), the ALJ rejected the 

allegation that Respondent attempted to 

mislead DEA investigators by providing 

to them the patient file containing false 

entries to the effect that he had made his 

wife’s psychiatrist aware of the 

prescriptions. Id. at 49–52. The ALJ 

reasoned that it appeared that 

Respondent created the file ‘‘as he was 

treating his wife,’’ that he ‘‘did nothing 

more than turn over his file when 

ordered to do so by the . . . subpoena,’’ 

and that there was ‘‘[n]o evidence . . . 

that, after the DEA subpoenaed the file, 

[he] created false entries or altered the 

file he already maintained.’’ Id. at 51. 

The ALJ nonetheless concluded that 

‘‘Factors Two and Four weigh 

substantially in favor of denying . . . 

Respondent’s application because he 

prescribed controlled substances to his 

wife for illegitimate and nontherapeutic 

purposes, outside the scope of 

professional practice, and because he 

did not appropriately document 

examinations of, any prescriptions to, 

his wife.’’ Id. at 52. The ALJ thus found 

‘‘that the Government has made a prima 

facie case . . . that the Respondent’s 

registration would be inconsistent with 

the public interest.’’ Id. 

The ALJ acknowledged that ‘‘[t]o 

rebut the Government’s prima facie 

case, the Respondent must both accept 

responsibility for his actions and 

demonstrate that he will not engage in 

future misconduct.’’ Id. (citation 

omitted). The ALJ explained that a ‘‘[a] 

respondent must express remorse for all 

acts of documented misconduct, and 

may be required to acknowledge the 

scope of his misconduct.’’ R.D. 52 

(citations omitted); see also id. at 54. 

The ALJ also explained that 

‘‘[a]cceptance of responsibility and 

remedial measures are assessed in the 

context of the egregiousness of the 

violations and the [DEA’s] interest in 

deterring similar misconduct by [the] 

Respondent in the future as well as on 

the part of others.’’ Id. at 52 (internal 

quotations and citations omitted). 

The ALJ concluded that 

‘‘Respondent’s misconduct was 

egregious’’ in that he ‘‘repeatedly and 

wrongfully prescribed addictive, 

dangerous, and potentially harmful 

controlled substances to his wife for 

approximately three years,’’ which 

‘‘interfered with his wife’s treatment 

and could have caused her to overdose, 

lose consciousness, or die.’’ Id. at 53. 

The ALJ nonetheless concluded that 

Respondent had accepted responsibility 

for his misconduct in prescribing 

outside the usual course of practice 

because, by ‘‘[s]imply acknowledging 

that he failed to properly document his 

treatment of his wife, [he] admitted to 

practicing outside the usual scope of 

professional practice.’’ Id. at 54. 

The ALJ also acknowledged 

Respondent’s testimony ‘‘that he did not 

think that his actions increased his 

wife’s chances of dependency, overdose, 

or diversion,’’ and that ‘‘[t]he 

Government’s argument that that 

Respondent did not accept 

responsibility for putting his wife at risk 

is also understandable.’’ Id. The ALJ 

reasoned, however, that ‘‘a respondent 

is not required to admit to every single 

component of an allegation in order to 

accept responsibility.’’ Id. The ALJ then 

noted that in a proceeding before the 

Mississippi Board, ‘‘Respondent 

acknowledged that his prescriptions 

were probably hurting his wife and 

keeping her from getting appropriate 

treatment.’’ Id. 

As for the Government’s contention 

that Respondent did not specifically 

acknowledge his misconduct in ‘‘failing 

to conduct examinations and/or conduct 

insufficient examinations prior to 

issuing’’ the prescriptions, the ALJ 

noted that this ‘‘is technically correct.’’ 

Id. at 54–55. The ALJ, however, rejected 

the Government’s contention, reasoning 

that ‘‘the Government overlooks the 

central concern of this case, which is 

that the Respondent wrote prescriptions 

for his wife when he should not have.’’ 

Id. at 55. The ALJ then explained that 

‘‘[i]n his view, the Respondent’s 

acceptance of responsibility for failing 

to examine his wife before writing her 

a prescription is subsumed in his 

general acceptance of responsibility.’’ 

Id. 

While the ALJ acknowledged that 

Respondent declined ‘‘to admit that he 

violated federal laws because he did not 

want to speculate on what statutes he 

might have violated’’ and ‘‘testif[ied] 

that he did not know whether the 

prescriptions were outside the scope of 

his professional practice as the DEA 

defines those terms,’’ the ALJ reasoned 

that Respondent was not required to 

‘‘identify the specific federal code 

provisions he violated, or interpret 

federal laws and apply them to his 

circumstances.’’ Id. at 56. The ALJ 

further explained that he found 

Respondent’s remorse to be ‘‘sincere 

and that his commitment to adhere to 

all regulations governing controlled 

substances is genuine.’’ Id. at 56–57. 

The ALJ further found that 

Respondent had undertaken ‘‘reasonable 

and appropriate’’ remedial measures. Id. 

at 59. As for the Agency’s interest in 

specific deterrence, the ALJ suggested 

that it ‘‘might be negligible,’’ reasoning 

that Respondent ‘‘thoroughly 

understands that if he engages in any 

further misconduct he will face 

immediate sanctions from the’’ 

Physicians Health Program and the State 

Board ‘‘that will end his medical 

career.’’ Id. at 59. And while the ALJ 

noted that ‘‘Respondent’s conduct was 

egregious,’’ he reasoned that the 

circumstances were unique because 

‘‘every allegation of misconduct . . . 

involved . . . Respondent prescribing to 

only his wife.’’ Id. at 60. The ALJ then 

explained that Respondent’s testimony 

in a State Board proceeding to the effect 

that his prescribing ‘‘was not a matter of 

judgment but a matter of the heart[] 

merits some consideration.’’ Id. The ALJ 

thus recommended that Respondent’s 

application be granted subject to various 

conditions. Id. at 61–62. 

The Government filed Exceptions to 

the Recommended Decision. In its 

Exceptions, the Government contended 

that the ALJ committed error in 

concluding that Respondent has 

sufficiently accepted responsibility for 

his misconduct. Exceptions, at 3–15. 

The Government also contended that 

the ALJ committed error in concluding 

that Respondent is entitled to a new 

registration notwithstanding the 

egregiousness of his misconduct. Id. at 

16–20. The Government thus argues that 

I should deny Respondent’s application. 

Id. at 20. Respondent did not file a 

response to the Government’s 

Exceptions. 

Thereafter, the ALJ forwarded the 

record to me for final agency action. 

Having considered the record in its 


ethrower on DSK3G9T082PROD with NOTICES
49706 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

2The ALJ noted that these facts, which are based 

on the testimony of Dr. Hambleton, the Director of 

the MPHP, at Respondent’s January 15, 2015 Board 

Hearing, are ‘‘not necessarily proven by a 

preponderance of the evidence.’’ R.D. 4. The 

Director was, however, placed under oath in the 

State Board proceeding. GE 14, at 11. He also 

testified in this proceeding and explained that with 

the exception of its duration, the terms of 

Respondent’s current RCA (which ‘‘is his fourth 

contract’’) are the same as they were for his 

previous contracts. Tr. 452. Notably, his current 

contract requires that, ‘‘[o]ther than cases of 

medical emergencies, I agree to abstain from the use 

of any mood-altering, addictive, or potentially 

addictive prescription medication, including 

amphetamine preparations, without written 

permission from MPHP.’’ RX C, at 2. The RCA’s 

terms also state that ‘‘I agree not to prescribe, 

dispense or administer to family members or myself 

any drug having addiction-forming or addictionsustaining liability.’’ Id. 

entirety including the Recommended 

Decision, the parties post-hearing briefs 

and the Government’s Exceptions, I 

adopt the ALJ’s findings of fact (while 

making several additional findings as to 

prescriptions) and legal conclusions 

with respect to paragraphs two through 

ten of the Show Cause Order. I 

conclude, however, that the 

Government’s Exception to the ALJ’s 

legal conclusion that Respondent has 

sufficiently accepted responsibility for 

his misconduct is well taken. 

Accordingly, I deny his application. I 

make the following factual findings. 

Findings of Fact 

Respondent’s Registration and 

Licensure Status 

Respondent is a neurosurgeon 

licensed by the Mississippi State Board 

of Medical Licensure. R.D. 3 (citing 

Stipulation of Fact No. 4); Tr. 481–82. 

Respondent also previously held a DEA 

Certificate of Registration, pursuant to 

which he was authorized to dispense 

schedule II through V controlled 

substances as a practitioner. GX 1, at 1. 

However, on January 17, 2014, 

Respondent surrendered this 

registration for cause. Id. According to 

Respondent, he agreed to surrender his 

registration at the time of the State 

Board hearing that suspended his 

medical license. Tr. 485. On January 9, 

2015, Respondent applied for a new 

practitioner’s registration seeking 

authority to dispense controlled 

substances in schedules II through V, at 

a registered address in Hattiesburg, 

Mississippi. R.D. 3 (citing Stipulation of 

Fact No. 1). 

In 2008, Respondent referred himself 

to the Betty Ford Center, ‘‘when [he] 

realized [he] had a problem with 

prescription medicines’’ and spent 90 

days in treatment. Tr. 487. According to 

Respondent, ‘‘[o]nce [he] went to the 

Betty Ford Center, [he] disclosed to the 

MPHP [Mississippi Physician’s Health 

Program] and ultimately the [B]oard of 

[M]edicine that [he] was now a 

participant.’’ Id. at 488. 

In May 2008, Respondent entered into 

a Recovery Contract Agreement 

(hereinafter, recovery contract, contract, 

or RCA) with the MPHP. GE 14, at 13. 

The RCA’s terms included that he 

completely abstain from mood-altering 

addictive substances, that he not treat 

himself or his family, that he undergo 

random drug screens, and that he be 

honest. Id.; see also R.D. at 4.2

In March 30, 2012, Respondent tested 

positive for Tramadol. He then returned 

to the Betty Ford Center for one month, 

after which he was discharged with a 

diagnosis of opioid dependence. GE 14, 

at 14–16. The MPHP did not, however, 

withdraw its advocacy on his behalf, 

and on June 11, 2012, Respondent 

entered into a new RCA which 

contained the same terms as the 

previous RCA, including the prohibition 

on prescribing to family members. Id. at 

16–17. 

On September 10, 2012, Respondent 

met with the Mississippi Professionals 

Health Committee due to its concerns 

that he had ‘‘missed callings for random 

drugs screens,’’ had failed to attend 

Caduceus meetings, failed to continued 

his aftercare therapy, failed to pay his 

bill for the drug screen testing, and had 

‘‘fail[ed] to turn in his support group 

attendance records.’’ Id. at 19–20. 

According to Dr. Hambleton’s testimony 

at the second State Board hearing, the 

committee ‘‘warned [Respondent] very 

carefully that any future noncompliance 

would result in [the] potential loss of 

[the] MPHP[’s] advocacy’’ and ‘‘that this 

was really his last chance to 

demonstrate that he could do what was 

necessary to prove that he’s safe.’’ Id. 

While Respondent was compliant 

with the issues raised by the committee, 

the committee was unaware that 

Respondent had been violating his RCA 

by writing controlled substance 

prescriptions for his wife. Id. at 20–21. 

According to Dr. Hambleton, he did not 

know that Respondent had been calling 

in controlled substance prescriptions for 

his wife until the State Board informed 

him on October 7, 2013. Id. Dr. 

Hambleton also testified in the State 

Board proceeding that Respondent did 

not disclose this information to his 

‘‘treatment providers at Betty Ford, to 

our committee, or [to] our staff at 

MPHP.’’ Id. 

On October 15, 2013, the MPHP, 

having concluded that Respondent’s 

‘‘continued practice of medicine 

represent[ed] a definite threat to the 

public health’’ withdrew its advocacy 

on behalf of Respondent. GE 14, at 23. 

Eight days later, the Board issued 

Respondent an order of prohibition 

which barred him from practicing 

medicine until further notice. GE 13, at 

5. 

Thereafter, Respondent was charged 

with two counts of violating the State’s 

Medical Practice Act, including 

violating an existing Board Order, 

Stipulation or Agreement, see Miss. 

Code Ann. Sec. 73–25–29(13), and 

engaging in unprofessional conduct, by 

engaging in dishonorable or unethical 

conduct. GE 14, at 5; see also Miss. Code 

Ann. Sec. 73–25–29(8)(d) 

(unprofessional conduct includes 

‘‘[b]eing guilty of any dishonorable or 

unethical conduct likely to deceive, 

defraud or harm the public’’). 

On January 16, 2014, the Board held 

a hearing on the allegations at which 

Respondent appeared. As the record of 

the hearing shows, the allegations were 

based on Respondent’s violations of his 

RCA, particularly in his prescribing of 

controlled substances to his wife. Also 

at issue was his lack of honesty in 

failing to disclose his prescribing to his 

treatment providers as well as the 

MPHP committee and the MPHP’s staff. 

GE 14, at 21. 

Following the hearing, the Board 

found Respondent guilty on both counts 

and suspended his medical license for 

one year, after which he was entitled to 

petition the Board for reinstatement of 

his license. Id. at 91. The Board ordered 

that he ‘‘successfully complete 

multidisciplinary treatment at a 

treatment facility approved in advance 

by the MPHP,’’ as well ‘‘establish a 

provisional contract [and] take those 

steps necessary to obtain affiliation and 

advocacy with the MPHP.’’ GE 13, at 7– 

8. 

On January 15, 2015, Respondent 

appeared before the Board seeking 

reinstatement. At the hearing, Dr. 

Hambleton (the MPHP Medical Director) 

testified in support of Respondent’s 

petition, stating that he ‘‘complied with 

all of our requirements and he’s begun 

the treatment process at Acumen.’’ Id. at 

13. Dr. Hambleton further expressed his 

‘‘belief . . . that he will comply with his 

contract.’’ Id. At the conclusion of the 

testimony, the Board reinstated 

Respondent’s medical license. Id. at 15. 

The DEA Investigation 

At some point not clearly established 

on the record, a DEA Diversion 

Investigator (DI) assigned to the Jackson, 

Mississippi office opened an 

investigation into Respondent’s 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49707 

3Earlier in his testimony, the DI stated that the 

investigation was prompted by Respondent’s 2015 

application. Tr. 31. Yet later in his testimony, the 

DI stated that the case was opened earlier, after the 

Board provided DEA ‘‘with documentation 

regarding his history with them.’’ Tr. 90. The DI 

explained that ‘‘[w]hen we obtain information from 

the Medical Board, whether or not somebody’s 

applied for a DEA license or not, we have to 

document that information . . . the different 

allegations that the Board has made[,] or evidence 

that they may have against a physician.’’ Id. at 90– 

91. 

4According to the DI, when calling in the 

prescriptions, Respondent used ‘‘several different 

variations of’’ his wife’s name. Tr. 38. 

5According to the DI, during this conversation, 

he told Respondent’s wife (who holds a DEA 

registration as a Nurse Practitioner) that she 

appeared to be obtaining controlled substances 

‘‘from multiple doctors, including her husband’’ 

and that he ‘‘would potentially be asking her to 

surrender her DEA license because of that.’’ Tr. 33– 

34. The DI testified that shortly after this 

conversation, he was contacted by Respondent’s 

counsel, who advised that he was also representing 

Respondent’s wife and was told ‘‘not to contact her 

anymore unless there, you know.’’ Id. at 34. The DI 

did not clarify what conditions Respondent’s 

counsel asserted during this conversation. Id. The 

DI did not subsequently speak to Respondent’s 

wife. Id. 

6According to the DI, he provided the pharmacies 

with the prescription numbers, Respondent’s wife’s 

name, and her date of birth. Tr. 38. 

prescribing practices.3 Tr. 31, 90. As the 

DI explained, Respondent’s ‘‘history 

with the Medical Board . . . gave us 

pause, so we began an investigation into 

. . . his prescribing habits.’’ Id. The DI 

testified that he had access to the 

Board’s investigation, Tr. 22 & 32, and 

obtained reports from the State’s 

Prescription Monitoring Program 

showing Respondent’s controlled 

substance prescribing. Id. at 22–23. 

Specifically, the DI obtained a 

‘‘Prescriber Activity Report’’ showing 

Respondent’s prescriptions from 

January 1, 2011 through December 31, 

2013. Tr. 24; GX 10. The DI also 

obtained a PMP report using the various 

names of Respondent’s wife for the 

same period. Tr. 29; GX 11. Of note, 

however, GX 10 contains a number of 

prescriptions which Respondent issued 

to his wife which are not listed on GX 

11.4

In reviewing the PMP reports, the DI 

found it suspicious that Respondent was 

prescribing controlled substances to his 

wife as ‘‘she was seeing a psychiatrist, 

Dr. Mark Webb, during that timeframe.’’ 

Tr. 30. The DI ‘‘noticed multiple 

prescriptions’’ which Respondent 

authorized for drugs that his wife ‘‘was 

receiving’’ from Dr. Webb. Id. at 31. The 

DI further explained that he was ‘‘aware 

that [Respondent] was married to . . . 

Ms. Alexander, so [I] knew there was a 

pretty good assumption that he was 

aware that she was receiving these 

medications, because she had seen Dr. 

Webb for such a long time.’’ Id. at 32. 

According to the DI, during a phone 

conversation with Respondent’s wife 

‘‘[s]he advised that she needed the 

medications’’ and that Respondent had 

written ‘‘her some prescriptions, but 

that she didn’t feel like that was a 

problem.’’ Id. at 33. Respondent’s wife 

also told the DI that ‘‘she didn’t know 

if her husband had patient files . . . for 

her [but] that he did prescribe some 

prescriptions to her.’’ 5 Id. at 34. 

Thereafter, the DI visited Dr. Webb 

and ‘‘asked him if he was aware’’ that 

Respondent’s wife was ‘‘receiving these 

prescriptions from’’ Respondent. Id. Dr. 

Webb ‘‘said that he was not’’ and asked 

the DI to ‘‘look into it further.’’ Id. 

Following the visit, the DI served a 

subpoena on Dr. Webb and obtained his 

patient file for Respondent’s wife. Id. at 

35; GX 3, at 1–2. Dr. Webb’s file for 

Respondent’s wife was entered into 

evidence as GX 5. Tr. 68–75. 

The DI also obtained some of ‘‘the 

hard copy prescriptions from several 

different pharmacies throughout’’ the 

State.6 Tr. 35–36. The DI presented the 

prescriptions to Dr. Webb and asked 

him: ‘‘were these authorized? Did you 

know?’’ Id. at 36. Dr. Webb ‘‘again 

maintained that he did not’’ know about 

the prescriptions. Id. 

The DI also served a subpoena on 

Respondent for ‘‘[a]ny and all charts, 

files and/or documents, written, typed 

or computerized, relating to’’ his wife. 

GX 4, at 1. A ten-page exhibit of 

Respondent’s Medical Progress Notes 

for his wife was entered into evidence 

as GX 6. Tr. 67. 

Dr. Webb’s Testimony 

The Government called Dr. Mark 

Webb as a fact witness. Dr. Webb 

testified that he has practiced psychiatry 

in Mississippi since 1990 and that 

Respondent’s wife has been his patient 

since November 2000. Id. at 102, 105. 

Dr. Webb acknowledged that he 

prescribes both controlled and noncontrolled substances and that for most 

of the patients who are treated with 

controlled substances, he prescribes 

only ‘‘two weeks’ worth of medications’’ 

so that ‘‘it’s a tighter leash.’’ Id. 

According to Dr. Webb, he has 

‘‘known [Respondent] for a long time’’ 

and the two ‘‘referred patients back and 

forth in the 90s and the early 2000[s].’’ 

Id. at 110. Dr. Webb testified that he saw 

Respondent’s wife at his request. Id. He 

also testified that during the 2011 

through 2013 period, his medication 

regimen for Respondent’s wife was to 

prescribe ‘‘an anti-depressant,’’ an 

Attention Deficit Disorder (ADD) 

medication such as Adderall XR, a 

sleeping medication such as Ambien or 

Restoril, and an anxiety medication 

such as Xanax or Clonazepam. Id. at 

204. 

Dr. Webb testified that while he and 

Respondent ‘‘talked a lot in the 90s and 

the early 2000s,’’ they have ‘‘talked less 

and less over the last 10 years.’’ Id. at 

110. Dr. Webb testified that his records 

show that he had talked to Respondent 

‘‘about four times’’ in the period from 

January 2011 to December 2013. Id. at 

111; see also GX 7, at 1 (memo prepared 

by Dr. Webb memorializing meeting 

with DEA noting that he had talked with 

Respondent on Dec. 20, 2011, Feb. 20, 

2012, Sept. 4, 2012, and Aug. 5, 2013). 

According to Dr. Webb, Respondent 

‘‘would call me whenever he felt [his 

wife] was in a crisis . . . to give me that 

information and to . . . garner some 

help from me to her.’’ Tr. 110. Dr. Webb 

testified that he never had a discussion 

with Respondent about the latter’s 

prescribing controlled substances to his 

wife. Id.; see also id. at 138. When then 

asked if Respondent had contacted him 

and told him that he had prescribed 

because his wife had ‘‘run out’’ and 

‘‘need[ed] some’’ medication on a 

temporary basis, Dr. Webb answered 

‘‘no’’ and explained that ‘‘that would 

not make a lot of sense,’’ because he 

(Dr.Webb) ‘‘would be the person 

authorized that needed to call that in.’’ 

Id. at 111. While Dr. Webb testified that 

there was an instance during which he 

‘‘walked out to the car with 

[Respondent’s wife] . . . and 

[Respondent] was in the car with their 

newborn son,’’ and they ‘‘chit-chatted 

[for] two seconds,’’ there was no 

discussion of Respondent’s prescribing 

of controlled substances to his wife. Id. 

at 111–12; see also R.D. 16 (ALJ Finding 

of Fact No. 28). Dr. Webb also testified 

that he did not have a conversation with 

Respondent’s wife about Respondent’s 

prescribing to her until either late in 

2015 or 2016. Tr. 174–75. 

Dr. Webb testified that DEA 

Investigators showed him the ten pages 

of notes Respondent created with 

respect to the prescriptions he issued for 

his wife and that he compared them 

with the patient file he maintained on 

Respondent’s wife. Id. at 116. However, 

‘‘none of’’ the dates in the records 

created by Respondent ‘‘correspond[ed] 

to [Dr. Webb’s] treatment records.’’ Id. at 

16 (quoting GX 9 (memo created by Dr. 

Webb re: Feb. 25, 2016 meeting with 

DEA)). In his testimony, Dr. Webb 

adhered to his statement in the memo 

that he ‘‘did not speak to [Respondent] 

on these times in question and certainly 

would not have authorized him to call 

in medication for my patient.’’ GX 9; Tr. 

117. As he testified, ‘‘[t]here’s no reason 

for somebody else to call in the 


ethrower on DSK3G9T082PROD with NOTICES
49708 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

7The ‘‘fill dates’’ are used to identify these 

prescriptions because some of the prescriptions are 

not dated or bear illegible dates. 

8The ALJ found that this prescription overlapped 

with a 30-day prescription for zolpidem tartrate 

(Ambien) from Dr. Webb, which was filled on 

January 8, 2011. R.D. 16. Given that Dr. Webb 

testified that he was prescribing both Xanax for 

anxiety and Ambien for sleep to Respondent’s wife 

simultaneously, the record does not establish that 

these were overlapping prescriptions. 

9Although this prescription was filled on August 

13, 2011, see GE–22, at 2, it does not appear on Mrs. 

Alexander’s PMP. See GE–11, at 12. However, a 

copy of the prescription and the fill sticker is in the 

record. GE 22. 

10The Respondent’s patient file for his wife 

mentions a prescription for 20 tablets of Xanax, 2 

mg, dated July 13, 2011. See GE–6, at 1. The patient 

file says he prescribed Xanax because ‘‘Jill out of 

Xanax—in Philadelphia—Has had twitching— 

[illegible] Dr. Webb has not called back.’’ GE–6, at 

1. Dr. Webb, however, had no notes in his file about 

any attempt by the Respondent to contact him on 

July 13, 2011. See Tr. 126. However, neither the 

prescriptions. That’s my job.’’ Tr. 117. 

Subsequently, Dr. Webb reiterated that 

he did not authorize Respondent to 

issue any prescriptions to his wife 

during the relevant time frame. Id. at 

119. 

Respondent’s Prescriptions for His Wife 

The evidence shows that between 

January 1, 2011 and October 14, 2013 

(when his medical license was 

suspended), Respondent issued the 

following controlled substances 

prescriptions for his wife.7

1. January 9, 2011, eight tablets of 

alprazolam (Xanax) 1 mg, one tablet to 

be taken twice day, a four-day supply. 

GE 10, at 85; GE 11, at 14; GE 29, at 

1–2. The record does not establish when 

Dr. Webb had last prescribed alprazolam 

to Respondent’s wife.8 Respondent did 

not document the prescription in the 

patient file he maintained for his wife. 

See generally GE 6. Nor did he inform 

Dr. Webb that he had issued the 

prescription. 

2. January 31, 2011, 30 tablets of 

zolpidem tartrate (Ambien) 10 mg, a 15- 

day supply. GE 10, at 19; GE 11, at 14. 

Notably, on January 8, 2011, 

Respondent’s wife had refilled a 

prescription issued by Dr. Webb on 

August 31, 2010 for 60 tablets, this 

being a 30-day supply. GE 11, at 14. 

Thus, if taken as directed, the refill of 

Dr. Webb’s prescription should have last 

Respondent’s wife until February 7, 

2011. On February 3, 2011 (only three 

days later), Dr. Webb prescribed 60 

units of zolpidem 10 to Respondent’s 

wife. GE 11, at 13. GE 5, at 112. 

Respondent did not document the 

prescription in the patient file he 

maintained for his wife. GE 6. Nor did 

he inform Dr. Webb that he issued the 

prescription. 

3. February 7, 2011, 20 tablets of 

hydrocodone/acetaminophen (Lorcet) 

7.5–650, a three-day supply. GE 10, at 

23; GE 11, at 13; see generally Tr. 373– 

74 (testifying that her husband 

prescribed hydrocodone for her once in 

2011). Other than on one occasion in 

June/July 2013, which is discussed 

below, Dr. Webb did not prescribe 

hydrocodone to Respondent’s wife. 

Moreover, the PMP report does not list 

any hydrocodone prescriptions that 

were issued by any other provider until 

November 30, 2011. GE 11, 11. 

Respondent did not document this 

prescription in the patient file he 

maintained on his wife. See generally 

GE 6. He also did not disclose the 

prescription to Dr. Webb. 

4. March 30, 2011, 30 tablets of 

zolpidem tartrate (Ambien) 10 mg, with 

a dosing instruction of one tablet at 

bedtime but ‘‘may repeat for early,’’ a 

15–30-day supply. GE 10, at 85; GE 11, 

at 13; GE 30, at 1–2. Notably, the 

zolpidem prescription which Dr. Webb 

issued on February 3, 2011 (RX 

#949559) provided for multiple refills, 

as it was refilled by Respondent’s wife 

on April 9, 2011, May 23, 2011, and July 

7, 2011. GE 11, at 13; Tr. 254–55. 

Respondent did not document the 

prescription in the patient file he 

maintained on his wife. GE 6. Nor did 

he inform Dr. Webb that he issued the 

prescription. 

5. April 8, 2011, 15 tablets of 

hydrocodone/acetaminophen (Lorcet) 

10–650, one tablet every six hours as 

needed, a three-day supply. GE 10, at 

85; GE 11, at 13; GE 31, at 1–2. As 

explained above, other than in June/July 

2013, Dr. Webb did not prescribe this 

drug to Respondent’s wife, and no other 

physician prescribed hydrocodone to 

her until November 30, 2011. 

Respondent did not document the 

prescription in the patient file. GE 6. He 

also did not disclose the prescription to 

Dr. Webb. 

6. May 6, 2011, 30 tablets of zolpidem 

tartrate (Ambien) 10 mg, one tablet at 

bedtime but ‘‘may repeat,’’ a 30-day 

supply. GE 10, at 85; GE 11, at 13; GE 

32, at 1–2. As discussed above, 

Respondent’s wife still had refills 

available for 60 dosage units based on 

the prescription issued by Dr. Webb on 

February 3, 2011, and eventually 

refilled the prescription on May 23, 

2011. GE 11, at 13; Tr. 255. Respondent 

did not document the prescription in 

the patient file. See generally GE 6. Nor 

did he disclose the prescription to Dr. 

Webb. 

7. May 14, 2011, 14 tablets of 

hydrocodone/acetaminophen (Lorcet) 

10–650, a two-day supply. GE 10, at 19; 

GE 11, at 13. As explained above, other 

than in June/July 2013, Dr. Webb did 

not prescribe this drug to Respondent’s 

wife, and no other physician prescribed 

hydrocodone to her until November 30, 

2011. Respondent did not document the 

prescription in the patient file. GE 6. 

Nor did he disclose the prescription to 

Dr. Webb. 

8. June 28, 2011, 30 tablets of 

zolpidem tartrate (Ambien) 10 mg, a 30- 

day supply. GE 10, at 84; GE 11, at 12. 

Respondent’s wife still had a refill 

available for 60 dosage units based on 

the prescription issued by Dr. Webb on 

February 3, 2011, and eventually 

refilled the prescription on July 7, 2011. 

GE 11, at 12. Respondent did not 

document the prescription in the patient 

file. See generally GE 6. Nor did he 

disclose it to Dr. Webb. 

9. July 15, 2011, prescription 

(assigned RX # 4002009 by the 

pharmacy) for 28 tablets of 

hydrocodone-acetaminophen (Lorcet) 

10–650, a five-day supply. GE 10, at 64. 

This prescription also authorized a 

refill, which Respondent’s wife obtained 

on July 29, 2011. Id. As explained 

above, other than in June/July 2013, Dr. 

Webb did not prescribe this drug to 

Respondent’s wife, and no other 

physician prescribed hydrocodone to 

her until November 30, 2011. 

Respondent did not document the 

prescription in the patient file. GE 6. 

Nor did he disclose the prescription to 

Dr. Webb. 

10. July 31, 2011, 12 tablets of 

zolpidem 10 mg, one tablet at bedtime, 

a 12-day supply, with one refill. GE 10, 

at 84; GE 11, at 12; GE 33, at 1–2. As 

found above, on July 7, 2011, 

Respondent’s wife obtained a refill of a 

prescription for 60 zolpidem issued by 

Dr. Webb, which, if taken as directed, 

should have lasted her until August 6, 

2011 (this being in addition to the 30 

zolpidem prescription Respondent 

issued on June 28, 2011). GE 11, at 12; 

Tr. 251–53. Respondent did not 

document the prescription in the patient 

file. See generally GE 6. Nor did he 

disclose the prescription to Dr. Webb. 

11. August 13, 2011, 20 tablets of 

alprazolam (Xanax) 1 mg, one-half to 

one tablet, to be taken twice a day, a 10– 

20-day supply. GE 22, at 1–2.9 Notably, 

on August 4, 2011, Respondent’s wife 

had refilled a prescription issued by Dr. 

Webb for 45 alprazolam 2 mg, a 15 day 

supply. GE 11, at 12. Thus, if taken as 

directed, this refill should have lasted 

Respondent’s wife until August 19, 

2011. Moreover, on August 16, 2011, Dr. 

Webb issued Respondent’s wife a new 

prescription for 90 alprazolam 2mg, a 

30-day supply. Id. Respondent did not 

document the prescription in his wife’s 

patient file. See generally GE 6.10 Nor 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49709 

PMP reports, nor the copies of the prescriptions, 

support a finding that Respondent issued an 

alprazolam prescription on or about this date. 

11 Dr. Chambers, the Government’s Expert 

testified that this prescription ‘‘is a bit puzzling 

because it’s clear she’s taking oral meds and usually 

that’s reserved for people who can’t take’’ the oral 

form of the drug. Tr. 259. 

12The Government established that this was a 

Tuesday. Tr. 190. 

13While neither PMP report contains an entry for 

an alprazolam prescription issued by Respondent 

for his wife on this date, Government Exhibit 23 

contains a copy of the prescription and the fill 

sticker showing that on January 16, 2012, 

Respondent issued, and his wife filled a 

prescription for 30 alprazolam 2 mg. 

Notwithstanding that the prescription appears to be 

dated ‘‘1/16/11,’’ the fill sticker states that the 

prescription was written on ‘‘01/16/12.’’ GX 23, at 

1–2. 

did he disclose the prescription to Dr. 

Webb. 

12. August 28, 2011, 12 tablets of 

zolpidem tartrate (Ambien) 10 mg, a 12- 

day supply. GE 10, at 19. Notably, on 

August 16, 2011, Respondent’s wife had 

obtained and filled a new prescription 

from Dr. Webb for 60 zolpidem, a 30- 

day supply. GX 11, at 12. If taken as 

directed, Dr. Webb’s prescription should 

have lasted Respondent’s wife until 

September 15, 2011. Moreover, as found 

above, Respondent had also provided a 

refill when he issued the July 31, 2011 

prescription (RX# 443737), and this 

refill was still available to his wife on 

August 28, 2011. GE 11, at 12. 

Respondent did not document the 

prescription in the patient file. See 

generally GE 6. He also did not disclose 

the prescription to Dr. Webb. 

13. September 6, 2011, 12 tablets of 

zolpidem tartrate (Ambien) 10 mg, a 12- 

day supply, this being a refill authorized 

by Respondent’s July 31, 2011 

prescription. GE 11, at 12. As discussed 

in the preceding paragraph, Dr. Webb’s 

August 16, 2011 prescription should 

have lasted Respondent’s wife until 

September 15, 2011. In addition, 

Respondent’s August 28, 2011 

prescriptions provided his wife with 

additional medication in excess of what 

Dr. Webb had prescribed. As found 

above, Respondent did not document 

the original prescription in the patient 

file nor disclose it to Dr. Webb. See 

generally GE 6. 

14. September 28, 2011, 16 tablets of 

hydrocodone/apap 10/650, a four-day 

supply with one refill. See GE 10, at 64. 

As explained above, other than in June/ 

July 2013, Dr. Webb did not prescribe 

this drug to Respondent’s wife, and no 

other physician prescribed hydrocodone 

to her until November 30, 2011. 

Respondent did not document the 

prescription in the patient file. See GE 

6. Nor did he disclose the prescription 

to Dr. Webb. 

15. October 11, 2011, 20 tablets of 

zolpidem tartrate (Ambien) 10 mg, one 

tablet at bedtime, a 20-day supply. GE 

10, at 84; GE 11, at 11; GE 34, at 1–2; 

Tr. 249. Of note, on September 19, 2011, 

Respondent’s wife had refilled Dr. 

Webb’s August 16, 2011 prescription 

and obtained 60 tablets, a 30-day 

supply. GE 11, at 12. If taken as 

directed, the September 19 refill should 

have lasted Respondent’s wife until 

October 19. GE 11, at 12; Tr. 248–49. 

Respondent did not document the 

prescription in the patient file. See 

generally GE 6. Nor did he disclose it to 

Dr. Webb. 

16. October 20, 2011, 16 tablets of 

hydrocodone-acetaminophen (Lorcet) 

10–650, a four-day supply, this being a 

refill of the September 28, 2011 

prescription. GE 10, at 64. As explained 

above, other than in June/July 2013, Dr. 

Webb did not prescribe this drug to 

Respondent’s wife, and no other 

physician prescribed hydrocodone to 

her until November 30, 2011. As found 

above, Respondent did not document 

the prescription or the refill in the 

patient file. See GE 6. Nor did he 

disclose the prescription to Dr. Webb. 

17. November 13, 2011, 18 tablets of 

clonazepam 2mg, a six-day supply. GE 

10, at 19. Notably, on November 3, 2011, 

Respondent’s wife had refilled a 

prescription issued by Dr. Webb on 

October 19, 2011 for 45 dosage units, a 

15 day supply. GE 11, at 11. If taken as 

directed, the November 3 refill should 

have lasted Respondent’s wife until 

November 18, 2011. Moreover, on 

November 15, 2011, only two days after 

filling the prescription she obtained 

from her husband, Respondent’s wife 

obtained a further refill of Dr. Webb’s 

prescription for 45 dosage units of 

clonazepam. GE 11, at 11. Respondent 

did not document the prescription in 

the patient file. See generally GE 6. Nor 

did he disclose it to Dr. Webb. 

18. November 25, 2011, 10 tablets of 

clonazepam 2 mg, a three-day supply. 

GE 10, at 63. If taken as directed, by 

itself, the November 15, 2011 refill 

should have lasted Respondent’s wife 

until November 30, 2011. Respondent 

did not document the prescription in 

the patient file. GE 6. Nor did he 

disclose it to Dr. Webb. 

19. November 29, 2011, four tablets of 

hydrocodone/acetaminophen (Lorcet) 

10–650 mg, one tablet to be taken four 

to six times a day, a one-day supply. GE 

26. Respondent did not document the 

prescription in the patient file. GE 6. He 

also did not disclose the prescription to 

Dr. Webb. 

20. Also on November 29, 2011, one 

Diastat Acudial, 5–7.5–10 mg kit. GE 10, 

at 92; GE 11, at 11; GE 28, at 1. Diastat 

Acudial is a rectal suppository of 

diazepam, which is also a 

benzodiazepine and a schedule IV 

controlled substance.11 Tr. 260–61; 21 

CFR 1308.14(c). Respondent did not 

document the prescription in the patient 

file. See GX 6. Nor did he disclose it to 

Dr. Webb. 

21. December 5, 2011, 10 tablets of 

hydrocodone-acetaminophen (Lorcet) 

10–650, a three-day supply. GE 10, at 

63. Respondent did not document the 

prescription in the patient file. See 

generally GE 6. Nor did he disclose it to 

Dr. Webb. 

22. December 27, 2011,12 30 tablets of 

zolpidem tartrate (Ambien) 10 mg, one 

tablet a day at bedtime, a 30-day supply. 

GE 10, at 80; GE 21, at 1–2. However, 

on December 16, 2011, Respondent’s 

wife had obtained a refill of Dr. Webb’s 

August 16, 2011 prescription for 60 

dosage units, a 30-day supply. GE 11, at 

11. Thus, if taken as directed, the 

December 16 refill should have lasted 

Respondent’s wife until January 15, 

2012. In Respondent’s patient file for his 

wife, he documented: ‘‘Jill not sleeping. 

Holiday schedule at Mississippi 

Neuropsychiatric—stress of house 

repossession and moving in with 

mother-in-law. Erratic. Bugs. Ambien 10 

mg #30 [one to two orally at bedtime]. 

No response on-call dr.’’ GE 6, at 1. 

Respondent did not disclose the 

prescription to Dr. Webb. 

23. January 7, 2012, 28 tablets of 

zolpidem 10 mg, a 28-day supply. GE 

10, at 63. As found above, on December 

16, 2011, Respondent’s wife had 

obtained a refill of Dr. Webb’s 

prescription and obtained medication 

that should have lasted her until 

January 15, 2012. Moreover, on 

December 27, 2011, she filled the 

prescription Respondent wrote her for 

30 more tablets. Respondent’s patient 

file for his wife does not document the 

issuance of a zolpidem prescription on 

this date, but rather on January 10, 2012. 

See generally GE 6. That entry states: 

‘‘Jill Philadephia at M-I-L house,’’ ‘‘Pills 

discarded—tension—No vehicles 

(Bankruptcy).’’ GE 6, at 2. The entry 

then lists a prescription for 30 Ambien 

10 mg, with a dosing instruction of one 

tablet by mouth per day. Id. Moreover, 

Respondent did not disclose the 

prescription to Dr. Webb. 

24. January 16, 2012, 30 tablets of 

alprazolam (Xanax) 2 mg, to be taken 

‘‘as directed.’’ 13 GE 23, at 1–2. However, 

on January 5, 2012, Respondent’s wife 

had refilled a prescription (Rx# 976879) 

issued by Dr. Webb for 45 tablets, a 15- 


ethrower on DSK3G9T082PROD with NOTICES
49710 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

14 January 16, 2012 was a Monday. Tr. 190. 

15Although this prescription does not appear on 

either of the PMP reports, the Government 

produced both the prescription and the fill sticker 

showing that the drug was dispensed on April 2, 

2012. See GE 19, at 2. 

day supply, and that prescription had 

an additional refill remaining which 

Respondent’s wife obtained on February 

14, 2012. GE 11, at 10. In his wife’s 

patient file, Respondent wrote: ‘‘Dr. 

Webb wants Jill to come in. Difficult 

[with] transportation—Will Rx 10 day 

supply til 1/26/12—Webb aware— 

Xanax 2 mg #30 [two orally three times 

a day].’’ GE 6, at 2. Dr. Webb testified, 

however, that neither Respondent nor 

Respondent’s wife ever told him about 

any prescription issued by 

Respondent.14 Tr. 115–17, 119, 138, 

174–75; see also R.D. 16 (Finding of Fact 

No. 28). 

25. February 26, 2012, 20 tablets of 

diazepam 5 mg, a six-day supply. GX 

11, at 10. Of note, on February 23, 2012, 

Respondent’s wife had obtained and 

filled a new prescription from Dr. Webb 

for 45 alprazolam 2 mg, a 15-day 

supply; this prescription (Rx# 982872) 

also authorized three refills. Id. at 10– 

11. Diazepam and alprazolam are both 

benzodiazepines and are used to treat 

anxiety. Tr. 259. Dr. Webb did not 

prescribe diazepam to Respondent’s 

wife. See generally GE 11; Tr. 204; GX 

5. Respondent did not document the 

prescriptions in his wife’s patient file. 

See GE 6. Nor did he disclose the 

prescription to Dr. Webb. 

26. March 4, 2012, 30 tablets of 

zolpidem10 mg, a 30-day supply. GE 10, 

at 13; GE 11, at 10. Of note, on February 

23, 2012, Respondent’s wife obtained 

and filled a prescription from Dr. Webb 

for 30 zolpidem, a 15-day supply. GE 

11, at 10. If taken as directed, Dr. 

Webb’s prescription should have lasted 

Respondent’s wife until March 9, 2012. 

Moreover, Dr. Webb’s Feb. 23 

prescription provided for two refills, the 

first of which Respondent’s wife 

obtained on March 19, 2012, 

respectively. GE 11, at 10. Respondent 

did not document the prescription in 

the patient file. See generally GE 6. Nor 

did he disclose the prescription to Dr. 

Webb. 

27. March 12, 2012, 12 tablets of 

alprazolam (Xanax) 2 mg, one tablet to 

be taken three times a day, a four-day 

supply. GE 10, at 80; GE 20. As found 

above, on February 23, 2012, Dr. Webb 

issued a prescription for 45 tablets of 

alprazolam 2 mg, a 15-day supply, 

which authorized three refills. GE 11, at 

9–10. In the patient file, Respondent 

wrote: ‘‘Out of Xaax [sic] x 5 days— 

Jerky & twitching—feels like Extreme 

anxiety—digging at arms [-] delusional 

parasitosis? Will give 4 day supply— 

[illegible] talk to Dr. Webb—Xaax [sic] 

2 mg #12,’’ followed by the dosage 

instruction of one tablet by mouth, three 

times a day.’’ GE 6, at 3. Respondent’s 

wife had available a refill of Dr. Webb’s 

February 23 prescription which she 

could have filled on this date (without 

being early) but which she did not fill 

until March 19, 2012. GE 11, at 10. 

Respondent did not disclose the 

prescription to Dr. Webb. 

28. March 12, 2012, 30 tablets of 

zolpidem 10 mg, 30-day supply. GE 10, 

at 80. As found above, on March 4, 

2012, Respondent prescribed 30 

zolpidem (a 30-day supply) for his wife 

which she filled the same day. GE 11, 

at 10. If taken as directed, Respondent’s 

March 4 prescription should have lasted 

until April 3, 2012. Also, Dr. Webb’s 

Feb. 23, 2012 prescription (for 30 

tablets) authorized multiple refills and 

Respondent’s wife obtained a refill on 

March 19, 2012. Id. Respondent did not 

document the prescription in his wife’s 

patient file. See GE 6. Nor did he 

disclose the prescription to Dr. Webb. 

29. April 1, 2012, 24 tablets of 

zolpidem tartrate (Ambien) 10 mg, a 24- 

day supply. GE 10, at 13; GE 11, at 10. 

Putting aside that Respondent’s March 4 

prescription should have lasted through 

April 3, 2012, as found above, 

Respondent’s wife obtained 30 tablets 

on March 12 when she filled his 

prescription and another 30 tablets on 

March 19, when she refilled Dr. Webb’s 

Feb. 2, 2012 prescription. GE 11, at 10. 

Respondent did not document the 

prescription in his wife’s patient file. 

See GE 6. Nor did he disclose the 

prescription to Dr. Webb. 

30. April 2, 2012, 120 units of 

hydrocodone-homatropine syrup 

(Hycodan), one teaspoon every four to 

six hours as needed. GE 19, at 1–2.15

Respondent did not document the 

prescription in his wife’s patient file. 

See GE 6. Nor did he disclose the 

prescription to Dr. Webb. 

31. June 18, 2012, 20 tablets of 

alprazolam (Xanax) 2 mg, one tablet to 

be taken twice a day, a 10-day supply. 

GE 10, at 75; GE 11, at 9; GE 15, at 1– 

2; Tr. 262. Respondent’s wife still had 

a refill remaining on Dr. Webb’s Feb. 23, 

2012 prescription for 45 alprazolam, 

which she filled on July 5, 2012. GE 11, 

at 9. Respondent did not document the 

prescriptions in his wife’s patient file. 

See generally GE 6. Nor did he disclose 

the prescription to Dr. Webb. 

32. July 17, 2012, 20 tablets of 

alprazolam (Xanax) 2 mg, one tablet 

twice a day, a 10-day supply. GE 10, at 

13; GE 11, at 9; see Tr. 262–63. As noted 

above, on July 5, 2012, Respondent’s 

wife obtained 45 tablets (15 days) of 

alprazolam when she refilled Dr. Webb’s 

prescription. GE 11, at 9. In a note 

(dated July 14, 2012) in his wife’s 

patient file, Respondent wrote: ‘‘she had 

done very well without medicine—even 

though extremely stressful living 

conditions. . . . 4 month no meds— 

depressed, crying, jittery—Has been in 

contact [with] Dr. Webb. . . . She feels 

self harm—but no SI. Xanax 2 mg #20 

6 day supply.’’ GE 6, at 4; Tr. 130. 

Respondent did not disclose the 

prescription to Dr. Webb, and Dr. Webb 

did not talk to the Respondent’s wife on 

July 14, 2012. See generally GE 5; Tr. 

131. Dr. Webb also testified that neither 

Respondent nor Respondent’s wife ever 

told him about any prescription issued 

by Respondent. Tr. 115–17, 119, 138, 

174–75; see also R.D. 16 (Finding of Fact 

No. 28). 

33. August 13, 2012, 30 tablets of 

hydrocodone/acetaminophen, 10–650, 

one tablet every four hours, a five-day 

supply. GE 10, at 80; GE 11, at 9; GE 16, 

at 1. Respondent did not document the 

prescription in his wife’s patient file. 

See GE 6. Nor does the PMP report show 

that any other doctor prescribed 

hydrocodone to Respondent’s wife 

between December 22, 2011 and 

December 16, 2012. GE 11, at 8–10. 

Respondent did not disclose the 

prescription to Dr. Webb. 

34. October 5, 2012, 12 tablets of 

alprazolam (Xanax) 2 mg, a four-day 

supply. GE 10, at 22; GE 11, at 9. On 

September 24, 2012, Dr. Webb 

prescribed and Respondent’s wife filled 

a prescription for 45 alprazolam 2 mg, 

a 15-day supply, which also provided 

for two refills. GE 11, at 9. If taken as 

directed, Dr. Webb’s prescription should 

have lasted until October 9, 2012. In his 

wife’s patient file, Respondent wrote: 

‘‘Dr. Webb Rx Xanax—She is out 2 days 

early—Laceration/cutting—severe 

anxiety & depression—arms excoriated 

No return call from weekend MD—I 

have to leave to work out of town Xanax 

2 mg #12 Walgreens 3–4 day supply 

through weekend.’’ GE 6, at 5. While the 

note also appears to state ‘‘aware -,’’ Dr. 

Webb did not have any notes in his file 

regarding any calls from Respondent on 

October 5, 2012, Tr. 131, and I find that 

Respondent did not disclose the 

prescription to Dr. Webb. I also find that 

Respondent’s wife did not disclose the 

prescription. Tr. 174–75. 

35. December 22, 2012, 15 capsules of 

Dextroamphetamine-Amphetamine ER 

20 mg, a five-day supply. GE 11, at 8. 

While Dr. Webb had prescribed this 

drug to Respondent’s wife, see id., 

Respondent did not disclose the 

prescription to Dr. Webb. Nor did 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49711 

16The prescription was originally issued on July 

26, 2012 and provided five refills. GE 11, at 8. 

17The prescription was originally issued on 

November 6, 2012. GE 11, at 8. 

18Both the prescription label and the PMP report 

list this as being a 30-day supply. See GE 17; GE 

10, at 79. However, according to Respondent’s note 

in the file, the dosing instruction was take the drug 

three times a day as needed. 

19The ALJ presumed, with reason, that ‘‘OOT’’ is 

an abbreviation for ‘‘out of town.’’ R.D. 22 n.32. 

20Although the PMP entry (as well as 

Respondent’s note) are dated March 28, 2013, the 

prescription was written on March 27. See GE 36, 

at 1. 

Respondent document the prescription 

in his wife’s patient file. See GE 6. 

36. January 11, 2013, 10 tablets of 

alprazolam (Xanax) 2 mg, a three-day 

supply. GE 10, at 21; GE 11, at 8. 

According to the PMP report, on January 

10, 2013, Respondent’s wife refilled a 

prescription issued by Dr. Webb 16 (Rx 

#996307) for 45 tablets of alprazolam 2 

mg, a 15-day supply. Id. If taken as 

directed, the January 10 refill provided 

enough medication to last Respondent’s 

wife until January 25. The PMP report 

also shows that on December 30, 2012, 

Respondent’s wife had refilled a 

different prescription issued by Dr. 

Webb 17 (RX #2703928) for 45 tablets of 

alprazolam 2 mg, a 15-day supply. Id. If 

taken as directed, the December 30 refill 

provided enough medication to last 

Respondent’s wife until January 14, 

2013. Respondent did not document the 

prescription in his wife’s patient file. 

See generally GE 6. Nor did he disclose 

the prescription to Dr. Webb. 

37. January 11, 2013, six capsules of 

temazepam, a three-day supply. GE 11, 

at 8. According to the PMP report, on 

January 10, 2013, Respondent’s wife 

refilled a prescription issued by Dr. 

Webb for 30 capsules of the drug, a 30- 

day supply. Id. If taken as directed, the 

January 10 refill provided enough 

medication to last Respondent’s wife 

until February 9, 2013. Respondent did 

not document the prescription in his 

wife’s patient file. See GE 6. Nor did he 

disclose the prescription to Respondent. 

38. January 23, 2013, 15 tablets of 

alprazolam 2 mg, to be taken ‘‘as 

directed.’’ 18 GE 17; GE 10, at 79; GE 11, 

at 7. An entry in Respondent’s file 

(dated January 20, 2013) states ‘‘Jill has 

opened sore on nose,’’ ‘‘arms—del. 

parastosis [sic]—arms,’’ ‘‘cutting— 

Anxiety/depression,’’ ‘‘Out of her 

Xanax—inconsolable,’’ ‘‘weekend—No 

return from on-call,’’ ‘‘Xanax #15,’’ 

‘‘will contact Dr. Webb in Am,’’ ‘‘No HI/ 

SI,’’ and a dosing instruction of ‘‘TID 

prn.’’ GE 6, at 5. Dr. Webb’s patient file 

for his wife does not document a call 

from the Respondent on or near this 

date. See GE 5; Tr. 131–32. I therefore 

find that Respondent did not disclose 

the prescription to Dr. Webb. 

39. January 23, 2013, 30 tablets of 

hydrocodone/apap 10–650, a five-day 

supply. GE 11, at 7. Respondent’s wife 

had obtained prescriptions on December 

16, 2012 for 20 tablets for hydrocodone/ 

apap 7.5/500 (a two-day supply) and on 

December 18, 2012 for 20 tablets of 

hydrocodone/apap 10/500 (a five-day 

supply) from Dr. Pecunia. GE 11, at 8. 

However, she was not regularly being 

prescribed hydrocodone. See generally 

GE 11. Respondent did not document 

the prescription in his wife’s patient 

file. See GE 6. Nor did he disclose the 

prescription to Dr. Webb. 

40. February 5, 2013, eight tablets of 

alprazolam 2 mg, a two-day supply. GE 

10, at 86; GE 11, at 7; GE 40, at 2. In 

his wife’s patient file, Respondent 

wrote: ‘‘Agitated—open sore on nose & 

hair line—Back from attempted trip— 

weathered out—returned with tons of 

anxiety—ran out of meds while 

OOT19—Minneapolis.’’ GE 6, at 6. The 

note further states: ‘‘Xanax #8 CVS 

Hattiesburg Zoloft #7’’ and ‘‘Filled Dr. 

Webb in on Travel—Jill did.’’ GE 6, at 

6. Respondent did not, however, 

disclose the prescriptions to Dr. Webb. 

41. February 27, 2013, 10 tablets of 

alprazolam 2 mg, a three-day supply. GE 

6, at 6; GE 10, at 86; GE 11, at 7. On 

February 19, 2013, Respondent’s wife 

filled a prescription written by Dr. Webb 

for 45 alprazolam 2 mg, a 15-day 

supply. GE 5, at 70; GE 11, at 7. If taken 

as directed, Dr. Webb’s prescription 

should have provided Respondent’s 

wife with enough medication to last 

until March 6, 2013. In his wife’s 

patient file, Respondent wrote: 

‘‘Anxious about marital situation—sores 

on nose/forehead will not heal—No HI/ 

SI—out of her meds early—Out of 

Xanax,’’ ‘‘Xanax #10 [one orally three 

times a day] CVS Hardy St (enough for 

weekend) (Monday: Dr. Webb refilled 

for her).’’ GE 6, at 6. 

42. March 27, 2013, 14 tablets of 

alprazolam (Xanax) 2 mg, one tablet to 

be taken three times a day as needed, a 

five-day supply, which was filled the 

next day.20 GE 36; GE 10, at 86; GE 11, 

at 7. On March 19, 2013, Respondent’s 

wife had refilled a prescription issued 

by Dr. Webb for 45 alprazolam 2 mg, a 

15-day supply. GE 11, at 7. If taken as 

directed, the refill of Dr. Webb’s 

prescription should have provided 

Respondent’s wife with enough 

medication to last until April 3, 2013. A 

note dated ‘‘3/28/13’’ in his wife’s 

patient file, states: ‘‘Marital/physical/ 

mental stress. Sky high Marriage 

Workshop in Montana just 

accentuated—depilitating hairline— 

[illegible] meds needs plastic surg[ery] 

to fix—Out of Xanax early—rebound 

anxieties—self-harm—Xanax #14—CVS 

Hardy St.’’ GE 6, at 7. The note also 

includes the following addendum: ‘‘Dr. 

Webb aware—he called in Restoril/ 

Zoloft & the Xanax (3/30/13).’’ Id. Dr. 

Webb, however, was not aware of this 

prescription. Tr. 132–33; 174–75. 

Further, Dr. Webb’s file contains no 

documentation of any contact by 

Respondent around March 28 through 

30. Tr. 133; see generally GE 5; GE 7– 

9. Notably, Respondent did not note 

what dose of Xanax he prescribed or the 

dosing instructions. See GE 6, at 7; see 

Tr. 266, 287–88. 

43. May 10, 2013, 14 tablets of 

alprazolam (Xanax) 2 mg, one tablet to 

be taken three times a day as needed, a 

four-day supply. GE 10, at 86; GE 11, at 

7; GE 37, at 1–2. On April 30, 2013, 

Respondent’s wife obtained a refill of a 

prescription issued by Dr. Webb for 45 

alprazolam 2 mg, a 15-day supply. GE 

11, at 7; Tr. 267. If taken as directed, the 

refill of Dr. Webb’s prescription should 

have provided Respondent’s wife with 

enough medication to last until May 15, 

2013. Respondent did not document the 

prescription in his wife’s patient file. GE 

6. Nor did he disclose the prescription 

to Dr. Webb. 

44. May 13, 2013, 12 tablets of 

alprazolam (Xanax) 2 mg, one tablet to 

be taken three times a day, a four-day 

supply. GE 10, at 21; GE 11, at 7; GE 41, 

at 1–2. Respondent wrote in his wife’s 

patient file: ‘‘Out of Xanax 2 days 

early—she says repeated [illegible] 

calls—no answer—No healing on face/ 

arm—repeated re-openings. I am 

scheduled OOT next 4 days—Xanax #12 

[once orally three times a day].’’ GE 6, 

at 8. Respondent had already prescribed 

a four-day supply of Xanax to his wife 

on May 10; additionally, Respondent’s 

wife still should have had two days’ 

worth of Xanax left from Dr. Webb’s 

April 30 refill. GE 11, at 7; Tr. 267. 

Respondent did not disclose the 

prescription to Dr. Webb. While the note 

also states that Respondent prescribed 

‘‘Ambien 10 for sleep,’’ GE 6, at 8, the 

record does not contain a zolpidem 

prescription with this date. 

45. May 20, 2013, 20 tablets of 

zolpidem 10 mg, one tablet at bedtime, 

a 20-day supply. GE 10, at 85; GE 11, at 

7; GE 38, at 1–2. Respondent’s patient 

file contains no note for a prescription 

issued on this date. GE 6, at 8. On May 

23, 2013, Dr. Webb prescribed 30 du of 

another sleep medication, Restoril 30 

mg (temazepam), with five refills, to 

Respondent’s wife. GE 5, at 102; GE 11, 

at 6; Tr. 133–34. Moreover, the PMP 

report shows that Dr. Webb had been 

prescribing temazepam with refills to 

Respondent’s wife beginning on July 26, 


ethrower on DSK3G9T082PROD with NOTICES
49712 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

21See GE–14, at 59 (admitting to calling in a 

prescription for Lorcet in July). 

2012 and had not issued a zolpidem 

prescription to her since February 23, 

2012, which she last refilled more than 

a year earlier on April 12, 2012. GE 11, 

at 7–10. Respondent did not discuss the 

prescription with Dr. Webb. Tr. 133. In 

an entry dated ‘‘5/23,’’ Respondent 

wrote: ‘‘Dr Webb—started Zoloft & 

Buspar—And [R]estoril[.] Ambien 

discarded—only Restoril.’’ GE 6, at 8. As 

also found above, Respondent had 

previously prescribed temazepam for 

his wife on January 11, 2013. GE 11, at 

8. 

46. July 1, 2013, 20 tablets of 

hydrocodone/acetaminophen (Lorcet), 

10–650, a five-day supply.21 GE 10, at 

93; GE 11, at 6; GE 27, at 1. In his wife’s 

patient file, Respondent wrote: ‘‘Her 

mother in hospital in Jackson—dying— 

in ICU/hospice—she had seizure— 

injured shoulder/rib finger. Fractured 

teeth. Would not go to ER—Lorcet 10/ 

650 #20,’’ which was followed by 

illegible handwriting. GE 6, at 9; Tr. 

134. Respondent did not discuss those 

injuries with Dr. Webb at any point; 

further, Respondent’s wife had an 

appointment with Dr. Webb on July 1. 

Tr. 134. While Dr. Webb did not 

prescribe any medications to 

Respondent’s wife at this visit, she did 

fill a prescription for 90 capsules of 

Adderall XR 20 (amphetamine), which 

Dr. Webb issued on June 28, 2013. GE 

11, at 6; Tr. 273. Also, on June 28, 2013, 

she had obtained from Dr. Webb and 

filled new prescriptions for 45 

alprazolam 2 mg, a 15-day supply, and 

30 temazepam 30 mg, a 30-day supply. 

GE 11, at 6. 

47. July 7, 2013, 12 tablets of 

alprazolam (Xanax) 2 mg, one tablet to 

be taken twice a day, a six-day supply. 

GE 35, at 1–4; see GE 10, at 41; GE 11, 

at 6; Tr. 268–69. However, if taken as 

directed, the June 28 alprazolam 

prescription from Dr. Webb should have 

provided enough medication to last 

Respondent’s wife until July 13, 2013. 

In his wife’s patient file, Respondent 

wrote: ‘‘She is out of her Xanax early. 

Dr. Webb is aware of the tremendous 

stress of her mother’s illness. No return 

call on-call MS Neuro [illegible] Xanax 

#12/Lorcet #12 Walgreens.’’ GE 6, at 9; 

Tr. 135. Dr. Webb’s file for Respondent’s 

wife does not document a call from 

Respondent on this date. See generally 

GE 5; GE 7–9; Tr. 135. 

48. July 7, 2013, 12 tablets of 

hydrocodone/apap 10–650 mg, one 

tablet to be taken four to six times a day, 

a two-day supply. Respondent’s note in 

his wife’s patient file does not discuss 

his reason for prescribing hydrocodone. 

See GE 6, at 9. Respondent did not 

disclose the prescription to Dr. Webb. 

49. July 25, 2013, 12 tablets of 

hydrocodone/apap, 10–650, one tablet 

every six hours as needed, a three-day 

supply. GE 10, at 21; GE 11, at 5; GE 42, 

at 1–2. Respondent did not document 

this prescription in his wife’s patient 

file. See generally GE 6. He also did not 

disclose the prescription to Dr. Webb. 

50. July 29, 2013, eight tablets of 

alprazolam 2 mg, one tablet to be taken 

three times a day as needed, a two-day 

supply. GE 10, at 85; GE 11, at 5; GE 39, 

at 1–2. The PMP shows that on July 19, 

2013, Respondent’s wife had obtained a 

refill of a prescription issued by Dr. 

Webb for 45 alprazolam 2 mg, a 15-day 

supply. GE 11, at 6. If taken as directed, 

the refill should have provided 

Respondent’s wife with enough 

medication to last until August 3, 2017. 

In his wife’s patient file, Respondent 

wrote: ‘‘Out of Xanax—buried her 

mother—funeral—Dr. Webb back 

Thursday. Xanax #8 [once orally three 

times a day].’’ GE 6, at 9; Tr. 136. Dr. 

Webb testified that he did not receive 

any message or have any contact with 

Respondent on this day, Tr. 136, and 

there is nothing in Dr. Webb’s file for 

Respondent’s wife that indicates that he 

was contacted by Respondent around 

July 29, 2013. See GE 5; GE 7–9. I find 

that Respondent did not disclose the 

prescription to Dr. Webb. 

51. August 15, 2013, 14 tablets of 

hydrocodone/apap 10–650, one tablet 

every four to six hours as needed, a twoday supply. GE 10, at 21; GE 11, at 5; 

GE 43, at 1–2. Respondent did not 

document the prescription in his wife’s 

patient file. See generally GE 6. Nor did 

he disclose the prescription to Dr. 

Webb. 

52. August 22, 2013, 15 tablets of 

alprazolam (Xanax), 2 mg, one tablet to 

be taken three times a day, a five-day 

supply. GE 10, at 67; GE 11, at 5; GE 24, 

at 1–2. According to the PMP report, Dr. 

Webb issued his last alprazolam 

prescription to Respondent’s wife on 

July 31, 2013 for 45 tablets, a 15-day 

supply, and the PMP report contains no 

entry for any refill of this prescription. 

GE 11, at 1–5. The PMP report further 

shows that on August 5, 2013, Dr. Webb 

had re-commenced prescribing 

clonazepam, a different benzodiazepine. 

GE 11, at 5; see also GE 5, at 71. In an 

entry in his wife’s patient file dated ‘‘8/ 

24/13,’’ Respondent wrote: ‘‘Following 

[her mother’s] death, she has been very 

labile. Dr. Webb has tried multiple 

medications. Jill is very morose, often 

cannot stop crying. Denies SI/HI—No 

self-harm this month.’’ GE 6, at 10. 

Continuing, the note states: ‘‘Multiple 

Rx & calls to Dr. Webb. Could not reach 

this weekend—Rx: Xanax #12 [once 

orally three times a day]’’ and ‘‘[w]ill 

update Dr. Webb.’’ GE 6, at 10; Tr. 136– 

37. However, there is nothing in Dr. 

Webb’s file for Respondent’s wife that 

indicates that he was contacted by the 

Respondent around August 22, 2013 

and Dr. Webb testified that Respondent 

never disclosed any of the prescriptions. 

See GE 5; Tr. 137. I find that 

Respondent did not disclose the 

prescription to Dr. Webb. 

53. September 5, 2013, 24 tablets of 

alprazolam (Xanax), 2 mg, an eight-day 

supply. GE 10, at 21; GE 11, at 5. The 

Respondent recorded in his wife’s 

patient file: ‘‘Will not leave room— 

depressed—needs to get back with Dr. 

Webb—anorexic—very anxious/ 

depressed—Xanax #20 [once orally 

three times a day].’’ GE 6, at 10. 

Respondent did not disclose the 

prescription to Dr. Webb. 

Dr. Webb’s Testimony Regarding 

Respondent’s Prescriptions 

Asked if there were ‘‘any risks’’ in 

Respondent’s wife ‘‘receiving 

prescriptions from someone other’’ than 

himself, Dr. Webb testified that ‘‘this 

particular patient . . . has some severe 

problems[,] and takes a high dose of 

medication. . . . my concern is that I’m 

keeping a close tab on it, but if there’s 

somebody out there writing that I don’t 

know about, that’s dangerous.’’ Id. at 

120. Dr. Webb explained that 

Respondent’s prescribing was dangerous 

because ‘‘you’re going above the 

maximum dose that should be 

prescribed and more medicines can lead 

to sedation, more sedation, difficulty, 

death, loss of balance, falls, poor 

judgment, things like that.’’ Id. at 121. 

Dr. Webb also explained that the 

prescriptions ‘‘interfered with [my] 

treatment for her, because I wasn’t 

seeing the real patient, because there’s 

a ghost writer out there that I don’t 

know about.’’ Id. Dr. Webb testified that 

‘‘I have certain timed prescriptions and 

if that timed prescription is getting 

gapped . . . by another prescription, it’s 

distracting me from my 

decisionmaking.’’ Id. He also testified 

that this would ‘‘[m]ost definitely’’ 

interfere with his decisionmaking, in 

that ‘‘[if] she was out of . . . my 

medicines, then I would hear a 

distressed phone call . . . and I would 

need to reorient my treatment for her 

[by] put[ting] her in the hospital.’’ Id. at 

122. 

In a July 13, 2011 entry in 

Respondent’s wife patient file, which 

documents a prescription for 20 Xanax 

2mg, but for which there is no 

corresponding prescription in either the 

PMP reports or the other exhibits, 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49713 

22On cross-examination, Dr. Webb acknowledged 

that the clinic’s answering service would not 

necessarily page the on-call doctor just for a patient 

‘‘who needs a normal refill.’’ Tr. 156. However, Dr. 

Webb maintained that if a patient was out of 

medicine early and in distress, the answering 

service would pass this message on to the doctor. 

Id. at 157, 182. He also testified that ‘‘[i]t’s our 

policy to call everybody back.’’ Id. at 183. 

Dr. Webb further testified that to the best of his 

recollection, all of the phone call messages ‘‘should 

be’’ in the patient file for Respondent’s wife. Id. at 

159. Dr. Webb testified that he did not ‘‘find it odd’’ 

that there was ‘‘only [in the words of Respondent’s 

counsel] a handful of . . . call notes in her file.’’ 

Id. at 160. Putting aside that there are 48 such notes 

in the patient file, Dr. Webb explained that 

Respondent’s wife ‘‘typically kept pretty good 

contact. Knowing that I’d be in the daytime, she’s 

in the medical field, she knows night time phone 

calls . . . aren’t very productive . . . [b]ecause 

you’re unlikely to have your doctor on call.’’ Id. He 

also testified that Respondent’s wife had not 

expressed any dissatisfaction with her being able to 

reach him other than when he was not on call 

during a weekend. Id. at 184. 

Dr. Webb further testified that his practice has not 

received complaints about the clinic’s ‘‘on call 

service’’ and ‘‘the inability to connect with a 

doctor’’ or to ‘‘get a request fulfilled by a doctor.’’ 

Id. at 161. The ALJ specifically found that Dr. 

Webb’s testimony was credible. R.D. 8. 

23With respect to Respondent’s wife, Dr. Webb 

testified that early in his treatment of her, she lost 

a bottle of Xanax which prompted him ‘‘to shorten 

the leash and give smaller amounts.’’ Id. at 162. 

24 Dr. Webb also identified other instances in 

which Respondent made notes in his wife’s file 

documenting phone calls but Dr. Webb’s file 

contained no record that the call was made to his 

office. See Tr. 129–33,137. These include notations 

for Feb. 18, 2012 (‘‘called answering service for Dr. 

Webb No response—weekend Dr’’); Oct. 5, 2012 

(‘‘No return call from weekend doctor’’); Jan. 20, 

2013 (‘‘No return from on call’’ and ‘‘Will contact 

Dr. Webb in AM’’); Mar. 28, 2013 (‘‘Dr. Webb 

aware.’’); Aug. 24, 2013 (‘‘Will update Dr. Webb’’). 

The record, however, does not establish whether 

these notations were intended to document that 

Respondent or his wife had placed the call and/or 

notified, or intended to notify Dr. Webb. 

25Respondent’s wife also obtained a refill of the 

June 28, 2013 prescription for 45 Xanax on July 10, 

2013, and a refill of the May 23, 2011 prescription 

(which also was for 45 Xanax) on July 19, 2013. GX 

11, at 6; Tr. 144. 

26As found above, the evidence shows that 

Respondent issued a number of prescriptions, 

especially for zolpidem, that provided quantities 

that were for periods considerably longer than two 

to three days. Specifically, Respondent authorized 

prescriptions on May 20, 2013, for 20 dosage units 

(du) of zolpidem (a 20 day supply); on April 1, 

Continued 

Respondent wrote: ‘‘Dr. Webb has not 

called back.’’ GX 6, at 1. Regarding this 

entry, Dr. Webb testified that there are 

‘‘five other [ ]’’ practitioners that work at 

his clinic and the phones are covered 24 

hours a day, seven days a week. Tr. 124. 

Moreover, his clinic has an answering 

service for after office hours and 

weekends. Id. at 125. Dr. Webb testified 

that Respondent’s note did not state 

what time the call to him had been 

placed and he maintained that he 

‘‘always called patients back.’’ Id. at 

126. 

Dr. Webb further testified that the file 

did not contain a note ‘‘from the 

answering service or the secretary that 

on [this date] a message was left.’’ Id. 

Dr. Webb then testified that his ‘‘file 

contains every telephone message 

notation that is given to our office’’ and 

that ‘‘the actual notes written by the 

office staff are kept,’’ and that there are 

no notes for this date.22 Id. The closest 

phone message by date are two 

messages on July 21, 2011 from 

Respondent’s wife; the earlier message 

states ‘‘please call asap’’ and the later 

message states ‘‘urgent out of med.’’ GE 

5, at 137. Notably, the PMP shows that 

on the same day, Dr. Webb issued to 

Respondent’s wife a new prescription 

for 45 alprazolam 2 mg. GE 11, at 12. 

The Government also asked Dr. Webb 

about Respondent’s note dated ‘‘1/16/ 

12’’ (prescription No. 24). The note 

appears as follows: 

Dr. Webb wants Jill to come in 

Difficult s transportation 

Will Rx 10 day supply til 

1/26/12—Webb aware— 

Xanax 2 mg # 30 

[ ] po TID prn 

GX 6, at 2, Tr. 126. Dr. Webb testified 

that he was not sure if the prescription 

referenced in the note was ‘‘attached to 

the January 16 or January 26th note.’’ Tr. 

127. He then testified that he had no 

contact with Respondent’s wife on 

January 16, 2012,23 but that on January 

26, 2012, he called in a prescription for 

45 Xanax 2 mg, three tablets a day. Id. 

at 127–28; see also GX 5, at 69. He also 

had no contact with Respondent on 

January 26, 2012.24 Tr. 128. 

The Government also asked Dr. Webb 

about an entry Respondent made on July 

7, 2013, which states in part: ‘‘She’s out 

of her Xanax early. Dr. Webb is aware 

of the tremendous stress of her mother’s 

illness. No return on call.’’ GX 6, at 9; 

see also Tr. 135. As found above, on this 

date, Respondent prescribed to his wife 

12 Xanax and 12 Lorcet. GX 6, at 9; GX 

11, at 6. Notably, the PMP report shows 

that Respondent’s wife had refilled a 

prescription issued by Dr. Webb on May 

23, 2013 for 45 Xanax (15 day supply) 

on June 21, 2013, and had obtained and 

filled a new prescription for 45 Xanax 

(15 day supply) on June 28, 2013.25 GX 

11, at 6. After again noting that there 

was no record of any call to the clinic 

or its answering service by Respondent 

on this date, Dr. Webb testified that the 

fact that Respondent’s wife was out of 

her Xanax early would concern him 

‘‘[b]ecause it lets me know that she’s 

using more than prescribed and would 

. . . ha[ve] me wondering whether we 

need to put her in the hospital, to 

monitor her, or [if] there [are] other 

issues going on.’’ Tr. 135–36. 

An entry in Respondent’s file dated 

July 29, 2013 states: ‘‘Out of Xanax— 

buried her mother—funeral—Dr Webb 

back Thursday Xanax #8’’ and includes 

dosing instructions of ‘‘po TID.’’ GX 6, 

at 9. As found above, the PMP report 

shows that Respondent issued his wife 

a prescription for eight Xanax 2 mg. GX 

11, at 5. The PMP report also shows, 

however, that Respondent’s wife refilled 

prescriptions for 45 Xanax (15 day 

supply) issued by Dr. Webb on both July 

10 and 19, 2013. GX 11, at 6. Id. Dr. 

Webb testified that he spoke with 

Respondent’s wife on July 30, 2013, and 

prescribed more Xanax to her and 

referred her to a psychologist. Tr. 136. 

According to the PMP report, Dr. Webb 

issued Respondent’s wife a prescription 

for 45 Xanax on July 31, 2013. GX 11, 

at 5. 

Dr. Webb testified that in his view 

‘‘gap filling . . . means that there’s a 

prescription that is used to get [the 

patient] to the next authorized refill.’’ 

Tr. 138. Dr. Webb then cited stolen 

medication as an example of when a gap 

fill would be appropriate. Id. Dr. Webb 

also testified that if a doctor sets up a 

regimen of refills, the patient ‘‘needs to 

follow that timeline. And so, if they’re 

short on set refills, that’s a problem.’’ Id. 

at 139. 

On cross-examination, Respondent’s 

counsel asked Dr. Webb about a 

statement he wrote in a memo he 

prepared following a January 11, 2016 

meeting with DEA personnel in which 

he noted that Respondent’s 

‘‘prescriptions consisted of large 

quantities of controlled medications 

such as Xanax, [h]ydrocodone, [and] 

Ambien.’’ Tr. 151; see also GX 8. Asked 

how he concluded that the prescriptions 

were for large quantities, Dr. Webb 

explained that ‘‘[t]hey appeared to be 

more than just a day or so’’ and that 

while ‘‘some were less than 10 . . . my 

recollection was that more, most of 

them were more than 10’’ tablets. Tr. 

151. 

Dr. Webb subsequently explained that 

he had Respondent’s wife ‘‘up to max 

doses of all prescriptions . . . that I had 

her on’’ and that ‘‘[a]nything over was 

a potentially large impact.’’ Id. at 152. 

He added that ‘‘[m]aybe the number 

isn’t large, but the potential impact is 

large.’’ Id. Asked by Respondent’s 

counsel if he ‘‘agree[d] that compared to 

[his] prescribing, the number of 

controlled substances prescribed by 

[Respondent] was relatively small,’’ Dr. 

Webb answered ‘‘correct,’’ but then 

added that it was ‘‘[m]ore than I 

prescribe and moving into . . . above 

my max and serious harm.’’ 26 Id. at 152– 

53. 


ethrower on DSK3G9T082PROD with NOTICES
49714 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

2012, for 24 du of zolpidem (24 days); on March 

4, 2012, for 30 zolpidem (30 days); on October 11, 

2011, for 20 du of zolpidem (20 days); on July 31, 

2011, for 12 du (12 days) plus a refill; on June 28, 

2011, for 30 du (30 days); on May 6, 2011, for 30 

du (30 days); on March 30, 2011, for 30 du (15 

days), and on January 31, 2011, also for 30 du (15 

days). GX 11, at 7, 10–14. He also authorized 

prescriptions on July 7, 2013, for 12 du of 

alprazolam (6 day supply); on March 28, 2013, for 

14 du of alprazolam (5 days); and on both July 17, 

2012 and June 18, 2012, for 20 du of alprazolam (10 

days). GX 11, at 6–7, 11. 

27 Dr. Webb testified that he ‘‘feel[s] that . . . 

she’s primarily a psychiatric disorder first, and then 

medication difficulty second, rather than the other 

way around.’’ Id. at 165; id. at 194–95. 

Dr. Webb testified that he had been 

‘‘very careful in regimenting’’ the 

prescriptions he issued for Respondent’s 

wife based on his ‘‘years of working 

with her’’ and her visit in either 2002 or 

2009 (or both years) when ‘‘she went to 

Sierra Tucson’’ to be evaluated for 

Xanax abuse. Tr. 146–47. According to 

Dr. Webb, Sierra Tucson did not 

diagnose her as being addicted or 

abusing controlled substances. Id. at 

164. While he ‘‘was not aware’’ that she 

was ‘‘overtly abusing,’’ Dr. Webb 

testified that she ‘‘[s]he had been early 

. . . sometimes on her prescriptions.’’ 

Id. at 185. Dr. Webb also cited ‘‘the 

severity of her illness’’ as a reason for 

why he generally limited the 

prescriptions to 15 days.27 Id. 

Dr. Webb subsequently testified that 

‘‘[s]ince I did not know about the other 

prescriptions out there, it did not appear 

to be as big of an issue. She was early 

a day or two here and there. But, yes, 

substance dependence was on the 

radar.’’ Id. at 194. On still further 

questioning by the Government, Dr. 

Webb testified that if he had known 

about Respondent’s prescriptions to his 

wife during the 2011–2013 period, this 

‘‘would have’’ changed his opinion as to 

whether she was abusing controlled 

substances. Id. at 196–97. On 

questioning by the ALJ, Dr. Webb 

testified that ‘‘[k]nowing what [he] 

know[s] today . . . I would have 

suggested’’ that she undergo ‘‘inpatient’’ treatment to address both ‘‘her 

primary . . . and secondary 

problem[s].’’ Id. at 197. 

Asked about the notes he maintained 

for his phone conversations with 

Respondent’s wife, which typically 

were no more than one or two lines, Dr. 

Webb maintained that he and 

Respondent’s wife ‘‘always had in-depth 

conversations’’ and that ‘‘[t]hey were 

usually fairly long, like 20, 30, 45 

minute phone conversations.’’ Id. at 

169. He also testified that his notes met 

the standard for documentation. Dr. 

Webb acknowledged, however, that he 

is ‘‘not perfect’’ and that there may have 

been some phone calls that he had with 

Respondent’s wife ‘‘that were not 

noted.’’ Id. at 203. 

Dr. Webb acknowledged that 

psychiatrists do not typically prescribe 

opioids such as hydrocodone; he 

testified that he had ‘‘written maybe less 

than five [prescriptions] in my last 20 

years.’’ Id. at 170–71. Asked why he 

issued the June 28, 2013 prescription for 

10 tablets of hydrocodone/ 

acetaminophen 10/650 mg, see GX 11, at 

6, Dr. Webb testified that the 

prescription was filled ‘‘at Beemon, so 

potentially she had come up from 

Hattiesburg.’’ Tr. 171. Continuing, Dr. 

Webb testified: ‘‘[t]hat was right around 

her mother’s death, mother’s sickness, 

and maybe she told me she was out of 

her medicine potentially. I’d want to see 

my note if I put it in there.’’ Id. 

Subsequently, Dr. Webb added that 

Respondent’s wife had undergone a 

procedure by a different doctor and 

received hydrocodone about nine or ten 

days earlier, but he could not otherwise 

recall the circumstances. Id. at 172. Dr. 

Webb then admitted that this 

prescription ‘‘certainly could’’ interfere 

with the treatment being provided by 

the other doctor. Id. However, he 

explained that Respondent’s wife ‘‘was 

out of town from her treating . . . 

physician, and out of her opiate for pain 

relief.’’ Id. at 186. Moreover, this was 

the only instance in which he 

prescribed hydrocodone or any other 

opioid to her. Id. at 200–01. 

Dr. Webb testified that he did not 

have a conversation with Respondent’s 

wife about Respondent’s prescribing 

controlled substances to her until either 

late 2015 or 2016, after he was contacted 

by the Diversion Investigator. Id. at 175. 

Dr. Webb testified that he ‘‘believe[d] at 

times’’ that Respondent was trying to 

help his wife and that ‘‘[t]hey have had 

lots of difficulty.’’ Id. at 177. Based on 

the four phone calls he had with 

Respondent during the 2011 through 

2013 period and because Respondent 

would ‘‘[t]ypically call if there would be 

a crisis,’’ Dr. Webb acknowledged that 

Respondent’s wife was often in crisis. 

Id. at 178. 

On subsequent questioning, 

Respondent’s counsel suggested that 

just as the other doctors in his practice 

can appropriately prescribe gap fills to 

his patients because they can access the 

patient’s file and see ‘‘abuse issues in 

the patient file . . . someone living with 

the patient can assess that person.’’ Id. 

at 196. Dr. Webb took issue with this 

suggestion, explaining that ‘‘the 

difficulty with living with someone is 

that you’re not potentially an expert.’’ 

Id. 

Dr. Webb testified that Respondent’s 

notes did not contain a patient history 

and specific diagnosis. Id. at 188. As for 

whether the notes contained evidence of 

an examination, Dr. Webb explained 

that, ‘‘other than the subjective notes 

that are listed, no.’’ Id. 

The Testimony of the Government’s 

Expert 

The Government called R. Andrew 

Chambers, M.D., to testify as an expert 

in psychiatry, the proper prescribing of 

controlled substances and their effects 

on patients, and on addiction; the ALJ 

accepted Dr. Chambers as an expert in 

these areas. Tr. 246. Dr. Chambers 

obtained his B.S. degree in Chemical 

Physics from Centre College, Danville, 

Kentucky in 1991 and his M.D. degree 

from the Duke University School of 

Medicine in 1996. GX 12, at 1. 

Thereafter, he completed a residency in 

psychiatry at the Yale University School 

of Medicine in 2002 and a fellowship in 

addiction psychiatry at the Indiana 

University (IU) School of Medicine in 

2012. Id. From 2002 through 2003, he 

served as an Assistant Professor of 

Psychiatry, Division of Substance Abuse 

at Yale; from 2003 through 2009, he 

served as an Assistant Professor of 

Psychiatry at the Indiana University 

School of Medicine; and since 2010, he 

has been an Associate Professor of 

Psychiatry with Tenure at the IU School 

of Medicine. Id. Also since 2012, Dr. 

Chambers has been the Director of the 

Fellowship Training Program in 

Addiction Psychiatry at the IU School of 

Medicine. Id. 

Dr. Chambers has had appointments 

in the Department of Psychiatry at 

various hospitals including the West 

Haven (Connecticut) VA Hospital, Yale 

New-Haven Hospital, Connecticut 

Mental Health Center, and Indiana 

University Health Hospitals. GX 12, at 2. 

He is board certified in general adult 

psychiatry and addiction psychiatry. Tr. 

227–28. He has also been published in 

the areas of psychiatry and addiction 

‘‘on the order of 50 times’’ in peerreviewed journals, published in 

multiple textbooks, and made a number 

of presentations to professional 

conferences. Id. at 229–30; GX 12, at 3– 

7, 11–18. 

Dr. Chambers testified that treating 

patients with mental illness and 

addiction is his ‘‘bread and butter 

work.’’ Tr. 231. He testified that he is 

‘‘familiar with and utilize[s] a broad 

range of pharmacotherapies for both 

mental illness and addiction, as well as 

psychotherapies for both mental illness 

and addiction’’ and that ‘‘the vast 

majority of [his] patients have both 

mental illness and addiction.’’ Id. at 

231–32. He testified that he is familiar 

with the prescribing of controlled 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49715 

28This particular overlap involved Respondent’s 

zolpidem prescription of March 30, 2011 for 30 

tablets (a 15-day supply) (Rx No. 4 above) and an 

April 9 dispensing of a zolpidem prescription. Tr. 

254–55. Dr. Chambers testified that ‘‘on April 9, 

2011, Dr. Webb issue[d] the same med for a 30-day 

supply. So now you have an example of Webb 

unknowingly overlapping a controlled substance 

with Dr. Alexander that happened on 3–30.’’ Id. at 

255. The PMP report shows, however, that the latter 

event did not involve the issuance of a new 

prescriptions but a refill of Dr. Webb’s February 3, 

2011 prescription. See GE 11, at 13. Nonetheless, 

Respondent’s prescription still created an overlap. 29See prescription Nos.31 and 32 above. 

substances to psychiatric patients, the 

risks of controlled substances, and the 

typical practices undertaken by 

psychiatrists to mitigate the risks or 

dangers of the diversion of controlled 

substances. Id. He further testified that 

he is familiar with the standards for 

prescribing controlled substances in 

Mississippi, as well the circumstances 

under which a doctor may fail to 

conduct himself in a manner that 

comports with a legitimate medical 

purpose or is within the course of 

proper professional practice. Id. at 233. 

While Dr. Chambers had never 

previously testified in a proceeding 

based on the Mississippi law and the 

State Board’s rules, id. at 240, he 

testified that he had reviewed the State’s 

laws and rules. Id. at 236. He further 

testified that the Mississippi provisions 

on prescribing controlled substances are 

‘‘fairly universal.’’ Id. at 237. Dr. 

Chambers explained ‘‘that the codes 

around the country are informed by the 

medical profession . . . and there are 

universal, fairly universal ethical 

standards, evidence-based standards 

that are scientific that then inform the 

code.’’ Id. at 240. Dr. Chambers 

subsequently cited the Patient Record 

provisions of the State Board’s Rule 1.4 

as one such standard that is accepted 

across the medical profession. Id. at 244. 

Turning to Respondent’s October 11, 

2011 prescription for 20 zolpidem (No. 

15 above), Dr. Chambers noted that the 

refill obtained by Respondent’s wife on 

September 19 was for 30 days and 

should have lasted until October 19. Id. 

at 249. Dr. Chambers testified that 

Respondent’s October 11 prescription 

was ‘‘a problem.’’ Id. As to why, Dr. 

Chambers explained: ‘‘[t]his is a 

prescription for a controlled substance 

that is coming from a separate source 

that’s occurring on top of a prescription 

from the primary psychiatrist, and the 

combination of these kinds of controlled 

substances could have serious 

consequences.’’ Id. Dr. Chambers further 

explained that ‘‘Ambien and other 

benzoate medications have central 

nervous system effects that can cause 

oversedation, memory disturbances, 

and, if taken in combination with other 

drugs, especially opioids, death.’’ Id. at 

250. While Dr. Chambers testified that 

10 milligrams (the dose prescribed by 

Respondent) ‘‘is not the maximum dose 

of Ambien that can be prescribed,’’ a 

patient obtaining the drug from another 

source ‘‘would be of concern.’’ Id. Dr. 

Chambers explained that the concern 

would be driven by the ‘‘the size of the 

dose, the nature of the drug,’’ as well as 

‘‘the fact the primary physician who is 

prescribing the drug . . . would not 

. . . necessarily [be] aware’’ that the 

patient was obtaining the drug ‘‘from a 

separate source.’’ Id. 

According to Dr. Chambers, when a 

patient is obtaining a drug from other 

sources, ‘‘it can create a great deal of 

confusion on the part of the primary 

prescriber about the effects or side 

effects of the drug and the mental status 

of the patient.’’ Id. at 250–51. 

Continuing, Dr. Chambers testified that 

‘‘there are also synergistic overdose 

risks of being on both doses at the same 

time. . . . It’s obviously not the dose 

that the primary prescriber wants 

because they would have prescribed 

that dose if that’s what they wanted.’’ 

Id. at 251. Dr. Chambers then explained 

that ‘‘the same concerns’’ were raised by 

the zolpidem prescription Respondent 

wrote on July 31, 2011 because the refill 

his wife obtained on July 7, 2011 of Dr. 

Webb’s prescription for 30 days of 

zolpidem should have lasted for another 

week. Id. at 252. 

Dr. Chambers identified several 

instances in which Dr. Webb’s 

prescriptions ‘‘overlapped’’ with those 

of Respondent.28 These included the 

zolpidem prescription (for 30 tablets/30 

days) which Respondent issued on May 

6, 2011 and the refills obtained on both 

April 9, 2011 and May 23, 2011 by 

Respondent’s wife of Dr. Webb’s Feb. 3, 

2011 prescription for 60 tablets (a 30- 

day supply). Tr. 255. Dr. Chambers 

testified that while ‘‘[t]he one before is 

a relatively minor overlap[,] about one 

or two days, which is fairly 

insignificant, . . . the secondary overlap 

is more significant.’’ Id. The 

prescriptions presented the same 

concerns of danger to the patient and 

confusion for the doctor. Id. 

Dr. Chambers subsequently testified 

that it does not matter whether Dr. 

Webb’s prescriptions were new 

prescriptions or refills because the 

prescription ‘‘is essentially an 

instruction both to the pharmacist and 

the patient for the daily dosing and the 

number of days that the patient should 

follow that dosing.’’ Id. at 257. Dr. 

Chambers then testified that ‘‘[r]efills is 

[sic] just a way to communicate to the 

patient and the pharmacist . . . that 

you’re allotting the schedule out in 

monthly, usually monthly allotments, 

and then it starts over.’’ Id. Continuing, 

Dr. Chambers explained that ‘‘the 

bottom line is that when the doctor 

writes the prescription and the 

pharmacist records it . . . there’s a 

complete understanding of what’s 

expected. There should be no haziness 

on the part of the doctor or the 

pharmacist or the patient . . . about the 

expected rate of consumption . . . from 

the start to finish, whether it be a 30-day 

supply or a 30-day supply with two 

refills.’’ Id. at 257–58. 

Next, the Government questioned Dr. 

Chambers about the combination of 

prescriptions/refills that Respondent’s 

wife filled on November 28–29, 2011. 

Id. at 258–59. Specifically, on November 

28, 2011, she refilled a prescription 

issued by Dr. Webb for 45 clonazepam 

(15 days) as well as filled a new 

prescription issued by Webb for 90 

capsules of Adderall. GX 11, at 11. The 

next day, she filled prescriptions for a 

one-day supply of Diastat Acudial (a 

rectal suppository of diazepam) and a 

one-day supply (four tablets) of 

hydrocodone/apap 10/650. Id. 

Dr. Chambers noted that the Diastat 

prescription ‘‘is a bit puzzling because 

it’s clear [Respondent’s wife] is taking 

oral meds and usually [Diastat] [is] 

reserved for people who can’t take 

[drugs] oral[ly].’’ Id. He then testified 

that ‘‘it’s a very high risk and potentially 

lethal combination one day after 

receiving a 15-day supply of’’ 

clonazepam and ‘‘also a stimulant’’ from 

Dr. Webb. Id. Dr. Chambers then 

testified that ‘‘[t]he combination of an 

opioid and a benzodiazepine is causing 

an unprecedented epidemic of death in 

the United States . . . because when the 

two drugs are together they 

synergistically suppress consciousness 

and breathing and the central nervous 

system.’’ Id. 

Addressing the prescriptions which 

Respondent issued on both June 18 and 

July 17, 2012, for 20 du of alprazolam 

2 mg (both being for a 10-day supply),29

each of which was filled on the date of 

issuance, as well as the refill she 

obtained on July 5, 2012 of Dr. Webb’s 

prescription for 45 du (15 days), Dr. 

Chambers testified that the prescriptions 

had different dosing instructions and 

overlapped. Id. at 262–63. Dr. Chambers 

then testified that ‘‘we don’t know what 

she was actually taking, but if she was 

actually taking the dose per both 

doctor’s directions, she would be taking 

10 milligrams of [alprazolam] a day . . . 

which would render me unconscious.’’ 

Id. at 263. As another example of 

Respondent’s issuance of an alprazolam 


ethrower on DSK3G9T082PROD with NOTICES
49716 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

30Other examples of overlapping prescriptions 

involved Respondent’s May 10 and May 13, 2013 

prescriptions (Nos. 43 and 44 above) for 14 and 12 

dosage units of alprazolam 2 mg, which overlapped 

with the refill his wife obtained on April 30, 2013 

of Dr. Webb’s prescriptions for 45 du (15 days) of 

alprazolam 2 mg. Tr. 267. According to Dr. 

Chambers, even Respondent’s May 10 and May 13 

prescriptions overlapped, and that on May 13, 

‘‘what you actually have here is a triple 

compounding of the dosing based on the 

disposition dates and the way the drugs were 

instructed to be taken.’’ Id. Dr. Chambers then 

explained that ‘‘that is a very dangerous dose that 

would normally never be prescribed outside an 

intensive care unit.’’ Id. at 267–68. 

Another such example is Respondent’s July 29, 

2013 alprazolam prescription which provided eight 

tablets (TID). Dr. Chambers testified that 

Respondent’s prescription provided a dosing 

instruction of eight milligrams a day, Tr. 271, which 

is supported by the PMP report which lists the 

prescription as providing a two-day supply. GE 11, 

at 5. However, the dosing instruction on the actual 

prescription was TID, or one tablet, three times a 

day. GX 39, at 1–2. Nonetheless, the prescription 

overlapped with the refill Respondent’s wife 

obtained on July 19, 2013 for Dr. Webb’s 

prescription for 45 tablets (15 days), and on July 31, 

2013, she obtained a new prescription from Dr. 

Webb for 45 tablets (15 days). GE 11, at 5. However, 

even if Respondent’s prescription only had a dosing 

instruction of 3 tablets a day, if she took the 

medications as prescribed by both Dr. Webb and 

Respondent for the period in which the 

prescriptions overlapped, she would have taken six 

tablets a day or 12 milligrams. Tr. 272. 

31 Dr. Chambers explained that while Adderall is 

‘‘used for a number of clinical indications, 

including attention deficit disorder [and] 

narcolepsy . . . [i]t also has significant street value’’ 

and is ‘‘basically a cousin of methamphetamine.’’ 

Tr. 270. 

prescription which resulted in ‘‘nearly a 

week of overlap of the same dose by two 

different doctors’’ and raised ‘‘the same 

concern,’’ Dr. Chambers identified 

Respondent’s March 28, 2013 

prescription for 14 dosage units (three 

tablets a day), which overlapped with a 

refill his wife obtained on March 19, 

2013 for 45 tablets (also three tablets a 

day).30 Id. at 266. 

Addressing Respondent’s July 7, 2013 

prescriptions (Nos. 46 and 47) for 12 du 

of hydrocodone/apap 10/650 (two-day 

supply) and 12 alprazolam 2 mg (sixday supply), Dr. Chambers characterized 

the latter prescription as ‘‘remarkable,’’ 

explaining that ‘‘it’s prescribed at the 

same time [Respondent] also prescribed 

hydrocodone, an opioid medication, 

also on the same day, again introducing 

the risk of a potentially lethal 

overdose.’’ Id. at 268–69. Dr. Chambers 

noted that Respondent’s prescribing was 

‘‘also occurring in the context of’’ an 

amphetamine (Adderall XR) 

prescription for 30 days issued by Dr. 

Webb ‘‘six days’’ earlier. Id. at 269. Dr. 

Chambers then testified that if 

Respondent’s wife was ‘‘taking as 

prescribed, she’s doing what street 

people call a speedball, which is 

essentially an amphetamine/opioid 

combination with a . . . benzodiazepine 

garnish.’’ Id. Dr. Chambers also noted 

that on July 1, 2013, the same day that 

Respondent’s wife filled the Adderall 31

prescription, Respondent had also 

issued her a prescription for 20 

hydrocodone/apap 10/650, which she 

filled that day. Id. at 269–70. Dr. 

Chambers noted that this hydrocodone 

prescription was ‘‘a higher dose than 

what Dr. Webb did.’’ Id. at 273. He 

explained that ‘‘there’s a combination of 

multiple overlaps of multiple classes of 

addictive substances that can produce 

overdose and severe psychiatric 

disturbances from two different 

physicians who are apparently in no 

communication.’’ Id. Continuing, he 

explained that ‘‘in [his] experience, 

when you see all three of those [classes 

of] drugs represented and you have 

multiple physicians contributing to it 

. . . that indicates a patient who is in 

serious trouble iatrogenically . . . 

meaning harmed being caused through 

medical practice.’’ Id. at 274. 

Asked if he had ‘‘reach[ed] a 

conclusion’’ as to whether Respondent’s 

prescriptions were issued ‘‘within the 

usual course of professional conduct,’’ 

Dr. Chambers testified: 

I did. It is not [the] usual course of clinical 

conduct for someone with mental illness or 

someone without mental illness to be 

prescribed these combinations of drugs and 

to have these combinations being prescribed 

by different individuals who—one of who— 

where there’s not communication or 

awareness that it’s happening. So it’s not 

only not usual clinical practice, but the 

reason it’s not usual is because it’s dangerous 

for patients and harmful. So it’s actually not 

only is it not usual, it’s essentially 

malpractice. 

Id. at 275. On further questioning, Dr. 

Chambers testified that the 

Respondent’s prescribing was not 

‘‘legitimate medical practice’’ and the 

prescriptions were ‘‘non-therapeutic.’’ 

Id. Dr. Chambers further testified that 

‘‘[b]ased on the entirety of the evidence 

[he] reviewed,’’ Respondent’s 

prescribing did not comply with either 

the Controlled Substances Act or the 

standards of the Mississippi 

Administrative Code, including the 

State’s requirements for patient records. 

Id. at 276, 278. 

Addressing the patient file 

Respondent maintained on his wife, Dr. 

Chambers testified that ‘‘there is a 

paucity of data to support the diagnosis 

or the prescription . . . that the note is 

built around. There’s a lack of physical 

or mental status exam that normally 

would be in a note like this to justify 

and direct the use of controlled 

substances.’’ Id. at 277. Dr. Chambers 

further observed that in comparing the 

patient file with the PMP data, ‘‘about 

40 percent of the prescriptions’’ had ‘‘no 

corresponding note at all. There’s no 

data. There’s no diagnosis, no detailing 

of what was prescribed.’’ Id. He also 

observed that ‘‘there are instances where 

the dosing or type of the drug is left out 

of the record.’’ Id. at 278. 

Dr. Chambers identified Respondent’s 

entry dated January 16, 2012 

(Prescription No. 24) as one such 

example. Tr. 278. As found above, on 

this date, Respondent prescribed 30 

alprazolam 2 mg ‘‘to be taken as 

directed’’ and wrote in the note: ‘‘Dr. 

Webb wants Jill to come in. Difficult 

[with] transportation—will Rx 10 day 

supply till 1/26/12—Webb aware— 

Xanax 2 mg’’ with a dosing instruction 

of ‘‘po TID.’’ GE 6, at 2. 

Dr. Chambers testified that ‘‘this note 

does not have a diagnosis. It doesn’t 

have an examination to justify . . . why 

that prescription happened at that dose 

. . . was he aware of what the 

prescription was from another doctor? 

Was he continuing? Was there any plan 

to taper it?’’ Tr. 279. Dr. Chambers 

added that ‘‘he’s kind of writing as if the 

reason he’s doing it is because the 

patient can’t get to Dr. Webb, and he’s 

documenting that Webb is aware . . . 

but in review of Webb’s chart, there no 

indication that Webb was ever aware 

that this kind of stuff was going on.’’ Id. 

When then asked if a 10-day supply is 

‘‘unusual for . . . a gap fill,’’ Dr. 

Chambers answered: 

. . . I think it’s unusual for one doctor to be 

gap filling another regardless of what the 

duration is, especially when there’s no 

knowledge that that’s happening. So any 

duration is odd, I think. I guess the longer the 

number of days the more concerning it is 

because you’re dispensing bigger doses. I 

mean, she’s got 30 tabs. That’s quite a bit. 

Id. at 280. 

Addressing Respondent’s note of 

February 18, 2012, Dr. Chambers 

acknowledged that it contained ‘‘a little 

bit more of what you could call a 

clinical assessment’’ in that Respondent 

described his wife’s symptoms. Id. at 

281. Dr. Chambers observed, however, 

that the note did not indicate ‘‘how 

many he prescribe[d].’’ Id. As for 

Respondent’s statement that his wife 

was ‘‘[o]ut of her Xanax for . . . 10 

days’’ and ‘‘[o]ut of her Ambien for a 

week,’’ GE 6, at 3, Dr. Chambers 

testified: 

It’s not clear exactly what that means, but 

I take it to mean that he is prescribing 

because she’s been out. And so, first of all, 

why is she out? Is it because she’s using it 

too rapidly? It’s just not clear. But he is 

filling the gap with an unclear amount and 

then suggesting by my read . . . [that] he’s 

documenting he’s contacting Dr. Webb, 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49717 

32 Dr. Chambers further criticized Respondent 

because ‘‘the standard of care for the treatment of 

acute withdrawal’’ requires as part of ‘‘the basic 

response to get a blood pressure or a pulse,’’ and 

‘‘[i]f these measures aren’t taken, people die 

routinely.’’ Id. at 284. 

33 Dr. Chambers also testified that there is a 

prohibition against a psychiatrist treating a spouse 

for two reasons. Tr. 293. According to Dr. 

Chambers, the first reason is that the practice of 

psychiatry requires ‘‘getting inside the mind of the 

patient’’ and ‘‘is a very invasive process’’ and that 

‘‘romantic and sexual . . . motives will 

contaminate the clarity of the practitioner. . . . A 

psychiatrist who is falling in love with his patient 

will begin to take actions that benefit . . . him or 

her rather than the patient.’’ Id. at 293–94. The 

second reason is that ‘‘there is an implicit power 

differential’’ between ‘‘a psychiatrist and a patient’’ 

and that ‘‘to exploit that power differential on a 

patient who’s vulnerable with mental illness 

through romantic or erotic counter-transference is 

regarded fairly much as a cardinal sin in 

psychiatry.’’ Id. at 294. Continuing, Dr. Chambers 

testified that in ‘‘many cases, these are patients who 

have already suffered physical and sexual abuse 

previously’’ and are ‘‘susceptible’’ to more abuse 

‘‘later on.’’ Thus, if a ‘‘psychiatrist engages in a 

sexual relationship with a patient . . . the very real 

danger is [that] there could . . . be a revictimization 

. . . of the patient.’’ Id. at 295. 

Dr. Chambers also testified, however, that ‘‘[t]his 

standard is actually not true for other branches of 

medicine’’ such as family practice. Id. at 294. 

informing them of this gap fill, the best I 

could tell. 

But what’s beginning to emerge here in this 

note and does come in later is that he is 

becoming—Dr. Alexander is becoming aware 

that she’s running out and I assume 

prematurely because when you look at the 

PDMP data from Dr. Webb, Dr. Webb is not 

creating gaps. . . . He is not leaving her 

hanging with no medication a whole lot of 

times. 

Id. at 281–82. 

Continuing on to the next note (March 

12, 2012), Dr. Chambers testified that 

this was ‘‘the first time I’ve seen a 

diagnosis in the chart.’’ Id at 282. He 

then explained that ‘‘delusional 

parasitosis is a non-specific psychotic 

symptom,’’ and that while it can be 

caused by ‘‘a primary delusional illness 

. . . more commonly [it] is a sign of 

severe drug withdrawal’’ including 

‘‘benzodiazepine . . . or even opiate 

withdrawal.’’ Id. at 282–83. Dr. 

Chambers testified that the behavior 

documented in the chart (jerking, 

twitching, and delusional parasitosis) 

‘‘suggests extreme discomfort’’ and 

‘‘could suggest vital sign changes [and] 

impending catastrophic 

withdrawal.’’ 32 Id. at 283. Dr. Chambers 

observed, however, that Respondent did 

not obtain his wife’s blood pressure and 

pulse or perform a mental status exam. 

Id. at 284. 

Respondent’s note of July 14, 2012 

documents a prescription for 20 

alprazolam 2 mg, a ‘‘6 day supply,’’ and 

states, among other things, that his wife 

had been off medications for four 

months and had been staying with her 

mother-in-law. GE 6, at 4. Regarding the 

note, Dr. Chambers testified that ‘‘I don’t 

know that she’s even around when this 

prescription happens. It’s just not clear 

where . . . she [is]. There’s no evidence 

that she’s even in front of him on July 

14, and that’s also a concern.’’ Tr. 285. 

Dr. Chambers observed that, in the 

October 5, 2012 note (‘‘[s]he is out 2 

days early’’), Respondent documented 

that his wife was ‘‘actually overusing 

the prescription that Dr. Webb ha[d] 

provided her. So he’s documenting 

evidence that she’s demonstrating abuse 

of these drugs and then he . . . say[s], 

‘[s]he’s lacerating and cutting herself, 

severe anxiety and depression, arms 

excoriated. No return call from a 

weekend doctor. I have to leave to work 

out of town.’’’ Id. After criticizing 

Respondent for ‘‘abandoning the 

patient,’’ who was self-mutilating and in 

a ‘‘potentially life threatening 

withdrawal,’’ Dr. Chambers testified that 

Respondent’s ‘‘leaving for the weekend 

and leaving her with more medication 

unsupervised’’ is ‘‘of grave concern.’’ Id. 

Dr. Chambers offered similar 

testimony regarding Respondent’s May 

13, 2012 note. See id. 288 (‘‘So again 

he’s now creating a track record in his 

. . . notation that the patient is 

essentially out of control and abusing 

Xanax and injuring herself. His response 

is to attempt to prescribe a combo of 

Xanax and Ambien . . . .). 

Respondent’s February 27, 2013 note 

states that his wife was ‘‘[a]nxious about 

marital situation.’’ As to the note, Dr. 

Chambers testified that ‘‘it’s not 

considered a normal medical practice’’ 

to treat family members and ‘‘that when 

it comes to controlled substances it’s a 

whole different ball game’’ when the 

prescription is ‘‘for a family 

member.’’ 33 Id. at 286–87. 

Dr. Chambers offered similar 

testimony with respect to Respondent’s 

March 28, 2012 note, which states: 

‘‘Marital/physical/mental stress sky 

high—Marriage workshop in Montana 

just accentuated’’ and ‘‘Out of Xanax 

early—rebound anxiety—self harm.’’ GE 

6, at 7. Dr. Chambers testified that he 

found that entry was ‘‘interesting 

because the marital, physical and 

mental stress . . . involves him, and 

he’s prescribing this medication to 

somebody who is in acute distress that’s 

ultimately related to the medication.’’ 

Tr. 287. Dr. Chambers also testified that 

Respondent’s notation of a prescription 

for ‘‘Xanax # 14’’ ‘‘is incomplete’’ 

because it does not state ‘‘the dose’’ or 

the patient’s instructions. Id. 

Subsequently, the Government asked 

Dr. Chambers to address ‘‘the situation 

where’’ a primary care doctor is 

prescribing to a patient who is also 

being treated by a psychiatrist. Id. at 

291. Dr. Chambers testified that in his 

‘‘own practice,’’ if a new patient is 

receiving psychoactive medication from 

another physician, he ‘‘will call them to 

stop that because you can’t have two 

chefs in the kitchen.’’ Id. Dr. Chambers 

then explained: 

If you have two chefs in the kitchen, this 

is the kind of stuff that can happen as you 

get chaos and harm and polypharmacy and 

no one understanding what is the illness 

versus what is [sic] the side effects of the 

medications, and it can lead to escalation of 

mental illness, addiction, and even death. 

Id. 

Finally, on direct examination, Dr. 

Chambers testified that ‘‘[a] competent 

psychiatrist would document [in the 

patient’s chart] if they knew that 

another doctor was prescribing 

controlled substances that were 

overlapping or representing a threat.’’ 

Id. at 298. A competent psychiatrist 

would also ‘‘take action to stop it or to 

stop their practice.’’ Id. 

On cross-examination, Dr. Chambers 

agreed that ‘‘[i]n many cases,’’ 

Respondent prescribed the same drugs 

to his wife as were prescribed by Dr. 

Webb. Id. at 307. Dr. Chambers also 

acknowledged that he had not examined 

Respondent’s wife and that ‘‘someone 

who sees her in person’’ is in a better 

position to evaluate her than a person 

who only reads her chart. Id. at 310. 

After accusing Dr. Chambers of making 

a ‘‘serious allegation []’’ when he 

testified that Respondent’s ‘‘wife was 

going through withdrawal’’ and which 

‘‘could be interpreted as she was 

abusing controlled substances,’’ 

Respondent’s counsel asked Dr. 

Chambers whether he or Dr. Webb was 

in a better position to make that 

determination. Id. Dr. Chambers 

answered that Dr. Webb was, but noted 

that he ‘‘was looking at data from’’ 

Respondent and ‘‘had the ability to look 

at two charts.’’ Id. at 310–11; see also id. 

at 319 (Q. You don’t know if she was 

exhibiting physical characteristics that 

correspond to drug addiction. A. I can 

only go on what I’ve read.’’). 

Asked by Respondent’s counsel if 

‘‘providing gap fills necessarily mean[s] 

there’s a drug abuse issue,’’ Dr. 

Chambers answered that ‘‘[i]t can 

mean.’’ Id. at 311. After Respondent’s 

counsel asserted that ‘‘[i]t can . . . it’s 

not definitive,’’ Dr. Chambers answered: 

‘‘I don’t see gap filling happen[ing] in 

this case. There is no gap filling going 

on. There’s overlaying.’’ Id. After 

Respondent’s counsel asserted that Dr. 

Webb ‘‘ha[d] categorized the same 


ethrower on DSK3G9T082PROD with NOTICES
49718 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

34As found above, while Dr. Webb testified that 

gap filling ‘‘means a prescription that is used to get 

you to the next authorized refill’’ and gave various 

examples, including ‘‘something that would speak 

to a need for more medication,’’ his testimony was 

clear that with the exception of a prescription 

issued by ‘‘one of my on call doctors,’’ a gap fill 

by another provider was not appropriate. Tr. 138– 

39, 192, 195–96. 

35 Dr. Webb’s patient file contains progress notes 

for 10 visits by Respondent’s wife during the years 

2011 through 2013. GX 5, at 42–53. Thus, contrary 

to the premise of the question, there is no evidence 

that Dr. Webb saw Respondent’s wife ‘‘five or six 

times a week as a patient.’’ Tr. 311. 

36While the ALJ admitted only Dr. Webb’s chart 

for Respondent’s wife during the years 2011 

through 2013, Tr. 74, here again, there is no 

evidence in the entire record that Dr. Webb saw 

Respondent’s wife five to six times a week. 

37This, too, is a misstatement of the evidence. 

Rather, the evidence shows that during 2011, 

Respondent issued prescriptions for 206 dosage 

units of zolpidem, 151 dosage units of 

hydrocodone, 28 dosage units of clonazepam, 28 

dosage units of alprazolam, and one kit of Diastat 

acudial. 

Respondent’s counsel also misstated the evidence 

when he asked Dr. Chambers if he was ‘‘aware [that] 

in 2012 Dr. Webb prescribed approximately 1720 

dosage units of controlled substances versus the 132 

that [Respondent] prescribed] to’’ is wife. Tr. 321. 

Rather, the evidence shows that Respondent 

prescribed 112 du of zolpidem, 94 du of 

alprazolam, 20 du of diazepam, 30 du of 

hydrocodone, 15 du of Adderall, as well as 

Hycodan cough syrup. 

38Specifically, Dr. Webb’s February 3, 2011 

alprazolam prescription, which was for a 30-day 

supply, see GE 5, at 111, authorized five refills, and 

Respondent’s wife obtained refills which were 

authorized by this prescription on June 10 and July 

4, 2011. See GE 11, at 12. However, on May 2, 2011, 

Dr. Webb issued Respondent’s wife an additional 

prescription for 30 days of alprazolam. GE 11, at 13; 

GE 5, at 111. 

evidence . . . as gap filling,’’ Dr. 

Chambers testified: ‘‘[i]t would surprise 

me if he’s seen the same evidence . . . 

It would surprise me because that’s not 

what I see in the data.’’ 34 Id. 

Assuming facts not in evidence, 

Respondent’s counsel then asked Dr. 

Chambers if ‘‘somebody who sees [the 

patient] regularly five or six times a 

week as a patient 35 or someone who’s 

paid to review her patient file’’ is ‘‘in a 

better position’’ to diagnose a patient as 

a substance abuser. Id. While Dr. 

Chambers agreed that a psychiatrist who 

saw the patient is in a better position to 

evaluate a patient, in response to the 

question of whether ‘‘it would not 

surprise [him] that Dr. Webb concluded 

that [Respondent’s wife] didn’t have a 

substance abuse issue,’’ Dr. Chambers 

explained that ‘‘[i]t wouldn’t’’ because 

Dr. Webb is ‘‘not an addiction 

psychiatrist.’’ Id. at 312–13. When 

subsequently asked by Respondent’s 

counsel if he ‘‘disagree[d] . . . with the 

doctor that’s seen her for 15 years five 

to six times a week with his diagnosis,’’ 

Dr. Chambers answered that he did.36 Id. 

See also id. at 319 (Q. ‘‘So it’s better to 

leave it to the psychiatrist who sees her 

five to six times a week over a 15-year 

period to make that decision.’’ A. ‘‘Well, 

not always. Not always, right.’’). 

Dr. Chambers acknowledged that 

Respondent’s and Dr. Webb’s dosing of 

alprazolam were ‘‘often in the same 

ballpark.’’ Id. at 317. However, Dr. 

Chambers explained that, while ‘‘taken 

separately both of the [doctors’] dose 

ranges might be acceptable, . . . if 

they’re . . . overlapping, that’s when 

you get into the danger.’’ Id. Dr. 

Chambers acknowledged, however, that 

‘‘[n]o one’’ knows how much of the drug 

Respondent’s wife was taking. Id. at 

318. 

Respondent’s counsel then asked Dr. 

Chambers if ‘‘you’re saying that she was 

addicted or . . . was abusing controlled 

substances . . . wouldn’t . . . the 

individual who prescribed her over 

1500 doses of controlled substance in 

one year . . . be more responsible for 

that versus the individual who 

prescribed 200 doses of controlled 

substances a year?’’ Id. at 320. Dr. 

Chambers answered: ‘‘but what we’re 

seeing here, that’s not what happened. 

We’re seeing two people prescribing [to] 

one person.’’ Id. Continuing, Dr. 

Chambers explained that ‘‘it could be a 

totally different picture if . . . only Dr. 

Webb’’ was prescribing but he had ‘‘no 

idea what that whole trajectory would 

look like’’ and whether ‘‘[s]he might be 

more stable.’’ Id. Dr. Chambers held to 

his earlier testimony that having two 

physicians prescribe to Respondent’s 

wife was ‘‘creating chaos that could 

actually cause the treatment to get even 

worse’’ and ‘‘to evolve in the wrong 

direction.’’ Id. at 321. 

After Dr. Chambers acknowledged 

that ‘‘Dr. Webb prescribed a significant 

amount of controlled substances, 

Respondent’s counsel asked him if he 

‘‘was aware that in 2011 [Respondent] 

only prescribed 128 dosage units to 

her?’’ 37 Id. at 321. After answering 

‘‘yes,’’ Dr, Chambers added that ‘‘Dr. 

Alexander prescribed about 20 percent 

of the controlled prescriptions and Dr. 

Webb about 70 percent on average over 

three years. Id. 

Following questions about the relative 

amounts of controlled substances 

prescribed by Dr. Webb and 

Respondent, Respondent’s counsel 

asked Dr. Chambers if Respondent’s 

wife had ‘‘a substance abuse issue, . . . 

isn’t it logical that Dr. Webb would have 

as much, if not more, responsibility for 

that?’’ Id. at 322. Dr. Chambers 

disagreed, explaining: ‘‘not necessarily 

because Dr. Webb is not aware that . . . 

two doctors [were] putting drugs into 

one person.’’ Id. While Dr. Chambers 

acknowledged that there is evidence in 

Dr. Webb’s chart ‘‘that he had 

discussions’’ with Respondent about his 

wife, he found ‘‘no evidence at all . . . 

that [Dr. Webb] knew that [Respondent] 

was also prescribing controlled 

substances.’’ Id. 

Dr. Chambers testified that he did not 

see any notation in Dr. Webb’s patient 

file that he was aware that Respondent’s 

wife ‘‘was running out early and that 

[Dr. Webb] was filling earlier.’’ Id. at 

328. Asked if he would be surprised that 

Dr. Webb testified that he was aware 

that Respondent’s wife was getting early 

refills, Dr. Chambers answered that he 

‘‘would be’’ and explained that PMP 

‘‘data doesn’t really reflect [that] there 

was a great deal of early refill activity 

going on from Webb by himself,’’ and 

while ‘‘[t]here may be a few instances of 

it, [it was] not very frequent.’’ Id. at 329. 

Dr. Chambers explained that Dr. Webb’s 

‘‘prescribing shows a relative lack of 

overlap of his . . . prescriptions for 

controlled substances. And when I say 

‘relative lack,’ I mean maybe a day or 

two,’’ which is ‘‘not really significant 

because people have got to go to the 

pharmacy.’’ Id. 

Respondent’s counsel then questioned 

Dr. Chambers about the alprazolam 

prescriptions which were issued by Dr. 

Webb and filled by Respondent’s wife 

on May 14, June 10, July 4, July 21, 

August 4, and August 16, 2011, and 

whether the overlap between the 

prescriptions concerned him. Id. at 331. 

Dr. Chambers acknowledged that the 

June 10, 2011 filling created an overlap 

of three/four days and was ‘‘on the 

margin’’ as did the August 16, 2011 

filling. Id. at 331–32. Dr. Chambers also 

acknowledged that the July 21 

prescription ‘‘would concern me.’’ Id. at 

332. Dr. Chambers offered similar 

testimony with respect to several 

alprazolam prescriptions that 

Respondent’s wife filled on February 14 

and 23, 2012, finding that the latter fill 

was ‘‘five days early’’ and ‘‘[t]hat’s when 

the red flag begins to go up.’’ Id. at 332– 

33. Of note, however, several of these 

fills were actually refills of prescriptions 

written much earlier, see Tr. 333, and in 

any event, to the extent that Dr. Webb 

should have been aware that a previous 

prescription he issued had provided 

sufficient refills such that there was no 

reason to issue a new prescription on a 

particular date, Dr. Webb is not the 

respondent in this proceeding.38

Likewise, while Respondent’s counsel 

raised a series of questions as to 

whether the pharmacies that filled the 

prescriptions should not have dispensed 

various early refills, id. at 334–336, the 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49719 

ALJ properly ruled that the conduct of 

the pharmacies is irrelevant. Id. at 336. 

Respondent’s counsel subsequently 

asked Dr. Chambers if the hydrocodone 

prescription which Dr. Webb issued on 

June 28, 2013 concerned him. Id. at 338. 

Dr. Chambers testified that he did ‘‘have 

a concern in that [Dr. Webb] is 

concurrently prescribing two other 

benzodiazepines at the same time,’’ 

these being temazepam and alprazolam. 

Id. at 338–39. Dr. Chambers also 

acknowledged that the Adderall 

prescription issued by Dr. Webb on this 

date created ‘‘a speedball.’’ Id. at 339. 

Continuing, Dr. Chambers testified: 

So that is a concern. When you step back 

from the record and you look at where—the 

opiate is the main threat actually, and when 

you look at the predominance of opiate 

prescribing over three years, the majority of 

it came from Dr. Alexander. So the number 

of opiates that were prescribed were quite 

rare. The incidents you’re putting in there— 

you’re pointing out is a concern, but . . . the 

relative frequency of which Webb did that 

was much, much, much lower than when Dr. 

Alexander [did] it, and that’s interesting 

because, as you pointed out, Dr. Webb is 

prescribing . . . three or four times more 

number of prescriptions. So it’s a matter of 

degree as well. 

Id. at 340. 

Asked if it is within the usual course 

of professional practice for a 

psychiatrist to prescribe an opiate, Dr. 

Chambers testified that a psychiatrist 

‘‘may treat pain on occasion.’’ Id. at 341. 

While Dr. Chambers then testified that 

he was surprised that Dr. Webb had 

testified that that he had written the 

June 28, 2013 hydrocodone prescription 

knowing that another physician was 

prescribing the drug to Respondent’s 

wife and did so without consulting that 

physician, when Respondent’s counsel 

asked Dr. Chambers if this called into 

question Dr. Webb’s treatment of her, 

the ALJ properly sustained the 

Government’s objection. Id. at 341–42. 

Addressing the prescription for 

Diastat Acudial, a rectal suppository 

form of diazepam, Dr. Chambers 

testified that while Dr. Webb’s file 

shows that Respondent’s wife suffers 

from seizures, he did not see how 

administering Diastat would ‘‘be 

consistent with treating someone who 

was having a seizure.’’ Id. at 345. While 

Dr. Chambers testified that Valium 

(diazepam) and benzodiazepines ‘‘can 

be used to treat seizure disorder[s],’’ he 

added that these drugs ‘‘can also cause 

seizure disorders.’’ Id. at 346. Dr. 

Chambers subsequently testified that a 

rectal suppository might be used ‘‘to 

treat a seizure disorder if someone can’t 

take [the drug] orally, meaning [the 

patient] would be in status epilepticus, 

like actively seizing and not conscious.’’ 

Id. 

Respondent’s Testimony at the State 

Board Hearing Regarding His Reasons 

for Issuing the Prescriptions 

At the January 2014 Board hearing 

which resulted in the suspension of his 

medical license, Respondent was asked 

to explain why he issued the 

prescriptions. GE 14, at 56. Respondent 

explained that his wife has a ‘‘fragile’’ 

psychiatric condition, which ‘‘became 

even more fragile’’ in ‘‘about November 

or December of last year.’’ Id. He 

testified that while ‘‘[t]here were times 

[that his wife] would run out of 

medicine and not decompensate . . . 

there was never a decompensation 

where she had her medicines.’’ Id. at 57. 

Respondent testified that ‘‘[w]ith [his] 

history, there was no way to call anyone 

else’’ and ask them to prescribe Xanax 

to his wife because anyone he knows 

would ‘‘be immediately suspicious that 

it was for me.’’ Id. at 58. According to 

Respondent, ‘‘as regards my wife 

herself, I would phone in usually a twoor three-day stop gap supply of 

medicines. And if you’ll look at the 

numbers dispensed, it’s usually 12, 

which would be a three-day supply for’’ 

her. Id. 

Continuing, Respondent testified that 

‘‘[w]e tried to . . . contact [Dr.] Webb, 

but . . . you can’t get him at night, on 

weekends, and I don’t blame him. And 

as he always tells [my wife], this is a 

matter that she shouldn’t be running out 

prematurely.’’ Id. Respondent 

maintained that ‘‘[t]his happened . . . 

in December, in January, in February. I 

don’t think it happened in April or 

May.’’ Id. He further asserted that ‘‘[i]t 

was sporadic’’ and ‘‘was always for a 

confined number of pills, a small 

amount, that bridged her gap between 

obviously when she was in crisis and 

didn’t have any medicine.’’ Id. 

Respondent also testified that ‘‘we’ve 

got a baby here,’’ ‘‘I may be working out 

of town,’’ and ‘‘I’ve got to do something 

to calm this situation down.’’ Id. 

Respondent added that he ‘‘felt as if [he] 

was in an emergency situation.’’ Id. 

Apparently referring to the 

prescriptions he issued for 

hydrocodone, Respondent testified that 

‘‘[w]hen that changes—there were two 

occasions in general’’ when he ‘‘called 

in.’’ Id. Respondent then related that a 

plastic surgeon had drained an abscess 

in his wife’s thigh and testified that he 

‘‘noticed that there was one prescription 

for Lorcet then for a few, and it 

happened again in July of last year’’ 

when his wife’s mother died and his 

wife ‘‘had a seizure [and] fell,’’ suffering 

various injuries. Id. While Respondent 

testified that ‘‘there was pain medicines 

[sic] then,’’ he added that ‘‘in general, 

the majority of the medicine were 

Xanax, two milligrams, three days’ 

supply were common.’’ Id. at 59–60. 

Respondent then maintained that his 

wife ‘‘would get in with Dr. Webb the 

following Monday morning, and he will 

refill everything.’’ Id. He further 

testified that ‘‘I think the record reflects 

that I filled in in times where I just 

didn’t think I had no other choice. I 

didn’t know what to do.’’ Id. 

Continuing, Respondent testified that 

‘‘I have never denied that I called things 

in for Jill . . . I always thought that if 

called to task for it, the context would 

not speak for itself but would be 

evidenced by number, etcetera.’’ Id. at 

61. Respondent then testified that he 

was monitored by the Board and that 

‘‘[t]here’s not been any diversion. There 

has not been any suggestion of that and, 

fortunately, got a lot of urine tests that 

were negative. I only ever did what I did 

when I perceived I had no other options 

having exhausted anything else that I 

knew to do.’’ Id. 

Asked about the December 2012 

Adderall prescription, Respondent 

stated that he did not ‘‘recall ever 

writing’’ the prescription and that his 

wife ‘‘was in the hospital in Hattiesburg 

at the time.’’ Id. at 62. Continuing, 

Respondent stated that ‘‘that one 

prescription doesn’t seem to fit for me. 

I don’t think that’s mine, but I would be 

glad if somebody had a copy of it to look 

at it.’’ Id. at 62–63. The prescription is, 

however, in the record of this 

proceeding. GE 18, at 102. It shows 

Respondent as the prescriber and 

Respondent offered no testimony in this 

proceeding disputing that he issued it. 

Id. 

Respondent also told the Board that 

his prescribing was ‘‘not a matter of 

judgment’’ but ‘‘a matter of heart.’’ GE 

14, at 63. He further told the Board that: 

I never did anything that I didn’t think at 

the moment . . . was necessary, and I think 

if you look at the record you can see that. 

There can be no more. There can be no more. 

You know, if I have to call 911 every time, 

then I am Jill’s husband. I am not—I was 

never her doctor. I stopped gapped, but I 

can’t even do that anymore. I mean, I know 

that is a matter of fact going forward. 

Id. at 63–64. 

During cross-examination at the Board 

proceeding, Respondent admitted that 

he did not disclose that he had been 

issuing the prescriptions until he was 

asked by the Board. Id. at 64–65. He 

further asserted that he did not ‘‘come 

up with [his wife’s] regimen,’’ that he 

‘‘didn’t change her regime,’’ and that he 

only ‘‘mirrored what her treating 

psychiatrist had done.’’ Id. at 65. 


ethrower on DSK3G9T082PROD with NOTICES
49720 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

However, after a Board member 

identified multiple hydrocodone and 

Xanax prescriptions that he issued in 

July 2013 and asked if he thought 

‘‘that’s wise,’’ Respondent stated that ‘‘I 

have to alter what I said. She also has 

a treating neurologist’’ (Dr. Bell) who 

‘‘also does musculoskeletal medicine’’ 

and that when his wife ‘‘had a seizure’’ 

she saw the neurologist. Id. at 66. 

Respondent then explained that 

‘‘[w]hen I say psychiatrist, that’s what 

Dr. Bell had given her for pain, and she 

ran out, and she was sitting constantly 

in the . . . [h]ospital.’’ Id. Respondent 

asserted that ‘‘that was an isolated 

incident there.’’ Id. 

During the Board proceeding, 

Respondent acknowledged that he had 

violated his RCA and an agreement with 

the Board. Id. at 68. He further asserted 

that he never issued the prescriptions 

‘‘out of defiance[,] . . . self will, power, 

or arrogance’’ and that ‘‘[i]t was always 

done in a short stop gap times [sic] 

when I believed again . . . that there 

were no other options.’’ Id. at 69. 

Before the Board, Respondent further 

asserted that he did not notify Dr. Webb 

about the prescriptions because his wife 

‘‘assured [him] that [Webb] was 

apprised of every situation.’’ Id. at 78. 

However, when a Board member noted 

that ‘‘[c]ommon sense would dictate as 

a physician [that] the next morning you 

pick up the phone and call this 

psychiatri[st] that’s taken care of [her] 

for 18 years and knows her probably 

better than any healthcare professional’’ 

and tell him ‘‘this is what happened last 

night, and this is what I did,’’ 

Respondent answered: ‘‘Not with every 

time.’’ Id. at 79. Asked more specifically 

why he did not talk to Dr. Webb, 

Respondent maintained that his wife 

told him that ‘‘[w]ith your Betty Ford 

attitude, he’s going to take me off my 

Xanax’’ and ‘‘I don’t want you to talk to 

him.’’ Id. at 80. While Respondent 

testified that he should ‘‘have 

overridden her concerns and intruded 

. . . upon her doctor/patient 

relationship,’’ he then added that ‘‘[i]n 

retrospect, I should have done that, 

more than the few times that I did do 

it. I certainly did it sometimes. I didn’t 

do it with every issuance herein.’’ Id. 

The same Board member noted that 

‘‘there’s an insinuation that [Dr. Webb] 

knew something had happened and that 

weekend or something had happened 

and that emergency medicine had been 

called in’’ and asked ‘‘is that correct?’’ 

Id. Respondent answered: ‘‘I certainly 

know that certain times he did. I don’t 

know that at every time he did.’’ Id. 

Respondent added that he was ‘‘certain 

that the answering service’s message 

was, ‘[c]all Dr. Alexander.’ ’’ Id. at 80– 

81. Respondent subsequently testified 

that ‘‘no, I didn’t do it every time. I have 

had the discussion with him.’’ Id. at 81. 

Respondent testified that when he 

would call Dr. Webb’s answering 

service, he would ‘‘ask [ ] for a call back 

from Dr. Webb or the doctor on call.’’ Id. 

at 84. When asked if he 

‘‘communicate[d] to the answering 

service the gravity of the situation,’’ he 

admitted that he did not. Id. at 85. He 

then explained that ‘‘I think I 

communicated that it was a medicine 

shortfall and that we needed someone to 

remedy that.’’ Id. 

Respondent’s Case 

Respondent’s first witness was his 

wife. Tr. 357–401. Of consequence, the 

ALJ found ‘‘that her testimony was not 

helpful in resolving the issues in this 

case.’’ R.D. 9. Specifically, the ALJ 

found that ‘‘her testimony was 

confusing, lacked specificity, and, at 

times, was internally inconsistent’’ and 

that ‘‘she could not remember many 

details of the underlying events about 

which she was testifying.’’ Id. (citing Tr. 

373–74, 376–77, 382, 384, 391). The ALJ 

also ‘‘found her responses to some 

questions to be evasive, and her 

demeanor to be somewhat combative.’’ 

Id. The ALJ also provided extensive 

reasons for why he gave ‘‘little credence 

to her testimony, and where it [was] 

contradicted by other evidence,’’ he did 

not find her testimony as credible. 

These included: 

She could not recall the number of times 

she had called Dr. Webb’s answering service 

and had not received a return phone call. Tr. 

360–62. She could not provide an adequate 

explanation of why she continued to be Dr. 

Webb’s patient even though she was 

dissatisfied with his failure to return her 

phone calls. Tr. 361–62, 382, 391. In 

explaining her difficulty in recalling details 

from 2011 to 2013, she said she could not 

recall because that was ‘‘seven years ago.’’ Tr. 

372. She testified that she did not have 

appointments with Dr. Webb between 2011 

and 2013, yet Dr. Webb’s treatment notes 

document several appointments during that 

period. Compare GE 5, at 42–46, 49–53, with 

Tr. 386. She testified that she told Dr. Webb 

that she would only get her prescriptions 

from him, and that that had been her practice 

for the past three years, but later testified that 

she had this discussion with Dr. Webb in 

2016. Tr. 363, 368, 398–99. She testified that 

she only used one pharmacy, but her PMP 

report shows she filled prescriptions at 

numerous pharmacies. GE 11; Tr. 369. She 

did not give a direct answer to the question 

of whether she had told Dr. Webb that the 

Respondent had provided her with 

prescriptions, and when she provided an 

example of when she had passed that 

information to Dr. Webb, the example was 

outside of the time range of the Respondent’s 

alleged violations. Tr. 360–63, 398–99. 

R.D. 9. 

Respondent’s wife testified that she is 

known by various names including 

Mona Jill Graham Alexander, Mona Jill 

Graham, Mona Jill G. Alexander, and Jill 

Alexander. Tr. 357–58. She testified that 

she has been a patient of Dr. Webb for 

16 years and she would usually see Dr. 

Webb three times a year and speak on 

the phone two to three times a month 

for 30 minutes to one hour. Id. at 359. 

Respondent’s wife testified that 

during the 2011 through 2013 time 

period, she ‘‘would tell’’ Dr. Webb that 

Respondent was prescribing controlled 

substances for her, ‘‘especially if I got 

out of medication.’’ Id. at 360. I do not 

find this credible. Nor apparently did 

the ALJ. R.D. 16 (FoF #28: ‘‘Dr. Webb 

did not know that the Respondent was 

simultaneously prescribing controlled 

substances to Mrs. Alexander.’’) 

(citations omitted). While Respondent’s 

wife also testified that when she called 

after hours, ‘‘[n]o one would ever . . . 

call me back,’’ that this ‘‘was very 

frustrating’’ to her, and that she 

expressed her frustration to Dr. Webb, 

Tr. 360–61, the ALJ did not find this 

testimony credible. R.D. 15 n.21. 

Indeed, the ALJ specifically found 

credible Dr. Webb’s testimony that 

Respondent’s wife ‘‘never told [him] 

that she was dissatisfied with her ability 

to contact him or his office.’’ R.D. 15 

(FOF #23.). I agree with these findings. 

Respondent’s wife testified that ‘‘[t]he 

only conversation we [she and Dr. 

Webb] ever had about [her husband’s 

prescribing] was to let me be the only 

one that prescribes you this medicine.’’ 

Tr. 363. She initially testified that this 

conversation ‘‘probably [occurred] 

towards the end’’ of 2013, id. at 391, 

only to testify that the conversation 

occurred ‘‘after [she] got discharged 

from the hospital’’ in March 2016. Id. at 

398–99. She also testified that during 

the 2011 through 2013 time period, she 

was hurting herself and that to the best 

of her recollection, she shared this with 

Dr. Webb. Id. at 364. 

Regarding the Diastat prescription, 

Respondent’s wife testified that she uses 

the drug because she has seizures and 

because ‘‘I’ve had seizures, I just always 

try to travel with it and keep some on 

me.’’ Id. at 366. Asked by the ALJ if she 

was using this medication in the 2011– 

2013 time period, Respondent’s wife 

answered: ‘‘I always keep it with me. It’s 

something that I’ll try not to ever run 

out.’’ Id. She also subsequently testified 

that the Diastat was not prescribed by 

Dr. Webb but by her ‘‘neurologist.’’ Id at 

393. 

Respondent’s wife testified that she 

believed her husband prescribed the 

controlled substances because he was 

trying to help her. Id. at 367. She further 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49721 

39The first of these was on August 25, 2011. GX 

5, at 140. Notably, Respondent’s wife had an office 

visit with Dr. Webb on August 16, 2011, during 

which he wrote her prescriptions for 30-day 

quantities of Adderall 20 mg, zolpidem 10 mg, and 

90 alprazolam 2 mg. Id. at 49; GX 11, at 12. While 

the phone messages states ‘‘Having problems,’’ GX 

5, at 140, Respondent did not issue a prescription 

until August 28, 2011, when he authorized 12 

zolpidem. 

The second of these occurred on July 10, 2013. 

GX 5, 133. However, the same day, Respondent’s 

wife refilled a prescription for 45 alprazolam 2 mg 

(15 days). GX 11, at 6. 

40 Dr. Hambleton explained that Respondent had 

been subject to a ‘‘provisional contract’’ during the 

period of his license suspension ‘‘to establish a 

Continued 

testified that her husband ‘‘never 

prescribed medicines that weren’t 

prescribed for [sic] Dr. Webb when I 

got—until we could get in touch with 

him.’’ Id. See also id. at 383 (‘‘[B]ut he 

never prescribed anything that I hadn’t 

already been prescribed by Dr. Webb.’’). 

She also testified that when her 

husband wrote a prescription for her, 

she was in crisis, and that her husband 

had never provided her with a 

controlled substance prescription when 

she was not in crisis. Id. at 367–68, 376. 

She further maintained that she ‘‘would 

try to get in touch with Dr. Webb, and 

in the interim of a two- or three-day fillin, I did get medicine from’’ my 

husband. Id. at 371. When later asked 

why her husband would have to 

prescribe to her when she was in crisis, 

she maintained that ‘‘[t]here would be 

occasional times I might run out a day 

early on a weekend . . . and he would 

see me very upset, crying, very 

emotional, and I feel like his intent was 

never to harm me. He was just trying to 

help me.’’ Id. at 379. See also id. at 381 

(‘‘I don’t know if I told him I need more 

or if he just knew that I just needed just 

two, three, four to get back to Dr. Webb 

because no one would call us back.’’). 

However, when asked if Respondent 

had ever given her a prescription for a 

longer time period than two to four 

days, she answered: ‘‘Not to my 

knowledge. I do not remember.’’ Id. at 

384. 

On cross-examination, she also 

admitted that Respondent had written a 

hydrocodone prescription for her but 

maintained that he did so when her 

mother ‘‘was dying in the hospital’’ and 

she developed back pain because she sat 

at her ‘‘mother’s bedside waiting for her 

to die.’’ Id. at 374. Respondent’s wife 

then maintained that she did not recall 

her husband as having written ‘‘[m]ore 

than one’’ hydrocodone prescription. Id. 

However, as found above, Respondent 

issued numerous hydrocodone 

prescriptions to her well before Dr. 

Webb issued the single hydrocodone 

prescription on June 28, 2013. Also, a 

substantial number of the prescriptions 

(especially those for zolpidem) were for 

quantities that far exceeded the amount 

necessary to provide medication until 

she was able to get a new prescription 

from Dr. Webb. Moreover, in a number 

of instances, Respondent issued the 

prescription notwithstanding that his 

wife had either recently refilled a 

prescription for the same drug or had 

refills outstanding which were 

authorized by an existing prescription 

issued by Dr. Webb. 

On questioning by the ALJ, 

Respondent’s wife maintained that 

during the period of 2011 and 2013, she 

‘‘usually [did] not’’ get a call back from 

Respondent’s office when she would 

leave a message. Tr. 387. Not only did 

the ALJ not find her testimony credible, 

her medical file contains evidence of 

only two phone calls she made during 

this period in which Dr. Webb did not 

document that he called back or Dr. 

Webb did not issue a prescription either 

the same day or the following day.39

Respondent called as a witness Peter 

Graham, Ph.D. Dr. Graham is a 

psychologist who works with Acumen 

Assessments, which provides clinical 

evaluations of physicians who are 

referred to it by physician health 

programs and state boards, and the 

Acumen Institute, which provides 

treatment, education and coaching to 

‘‘licensed professionals who are in the 

process of being rehabilitated for one or 

another professional reason.’’ Tr. 403– 

04. Dr. Graham testified that the main 

focus of Acumen’s evaluations is not 

whether a physician is competent to 

practice medicine, but whether the 

physician’s ‘‘mental status, personality 

variables, [and] character traits . . . may 

impact on decision-making, ethical 

judgment, self-regulation, ability to 

remain responsible and maintain the 

duties of licensure.’’ Id. at 416–17. 

Dr. Graham testified that Respondent 

was referred to him ‘‘for evaluation of 

his fitness secondary to having engaged 

in conduct that was contrary to his 

[recovery] contract,’’ that being writing 

the prescriptions for his wife. Id. at 417. 

According to Dr. Graham, the evaluation 

determined ‘‘that there was an 

interaction between certain personality 

factors that affected his judgment and 

the way he was deciding to comply or 

not with his contract, as well as anxiety 

and situational stress related to’’ his 

home life that ‘‘affect[ed] his mental 

status.’’ Id. at 419. The evaluation 

recommended to the MPHP that 

Respondent ‘‘undergo treatment 

designed for professionals who have 

made ethical misjudgments or engaged 

in some kind of misconduct . . . with 

a focus on examining his ethical 

decision-making’’ and how his 

‘‘personality traits’’ affected his 

behavior. Id. at 420. 

Respondent subsequently underwent 

treatment, which included both a threeweek inpatient and one-week follow-up 

visits at three and six months, 

individual psychotherapy in his home 

community, and a three-day wrap up 

visit at the one-year mark. Id. at 421–22. 

According to Dr. Graham, Respondent’s 

treatment team has determined that he 

can ‘‘return to supervised and 

monitored practice.’’ Id. at 425. 

Respondent also called as a witness, 

Scott Hambleton, M.D., the medical 

director of the MPHP. Id. at 435–37. Dr. 

Hambleton testified that ‘‘the heart of 

[Respondent’s recovery] contract 

concerns abstinence from any moodaltering or addictive substances, which 

would increase the risk of a relapse to 

substance use and active addition.’’ Id. 

at 443. He further testified that 

Respondent is subject to random testing 

approximately 30 times a year for both 

drug and alcohol use, that he is subject 

to a workplace monitor, and in the event 

he needs to take controlled substances, 

he ‘‘is required to use a medication 

monitor’’ and all such prescriptions 

must be approved by the MPHP ‘‘in 

advance.’’ Id. at 443–44. Dr. Hambleton 

also testified that Respondent is 

required to attend 12-step and Caduceus 

meetings for physicians in recovery. Id. 

at 445. In addition, according to Dr. 

Hambleton, a Board investigator visits 

Respondent on a random basis at least 

once a quarter to witness a drug screen 

and evaluate his appearance. Id. at 446– 

47. Dr. Hambleton further stated that 

Respondent’s contract will last for as 

long as he has an active medical license. 

Id. at 447. 

As for how the MPHP monitors the 

provision in Respondent’s contract that 

prohibits prescribing to family members 

and himself, Dr. Hambleton testified 

that this is done by the Board’s 

investigators. Id. at 448. Dr. Hambleton 

testified that if the MPHP found out that 

Respondent had prescribed controlled 

substances to himself or a family 

member it ‘‘would withdraw advocacy 

immediately.’’ Id. at 449. Dr. Hambleton 

further testified that he had no 

reservations about Respondent returning 

to the unrestricted practice of medicine. 

Id. at 450. The record does not establish, 

however, what ‘‘the unrestricted 

practice of medicine’’ entails in light of 

Respondent’s recovery contract. 

On cross-examination, Dr. Hambleton 

acknowledged that Respondent had 

violated his first two recovery 

contracts.40 Id. at 452. He also 


ethrower on DSK3G9T082PROD with NOTICES
49722 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

period of compliance and recovery.’’ Tr. 452. 

Respondent did not violate this contract, which 

ended when he entered his current (fourth) 

contract. Id. at 453. 

acknowledged that at some point when 

Respondent had a job opportunity in 

Tennessee, the MPHP had written to 

that State’s Board recommending 

against granting a license to 

Respondent. Id. at 475. 

Dr. Hambleton testified that he 

supported Respondent’s return to the 

unrestricted practice of medicine 

because the Board’s suspension of his 

license was ‘‘a profound experience, 

especially for a neurosurgeon, with that 

amount of training,’’ and ‘‘[t]hat type of 

intervention has a powerful effect on the 

recovery process.’’ Id. at 470. He also 

testified that ‘‘Acumen has more 

expertise in dealing with personality 

issues’’ and ‘‘[s]o that treatment in itself 

. . . represents a profound event that 

makes it possible to provide advocacy.’’ 

Id. at 470–71. 

Dr. Hambleton further testified that 

Respondent’s ‘‘treatment has been 

effective’’ and that ‘‘[h]e’s gaining 

insight, sensitivity, demonstration of 

more regard for others, responsibility, 

authenticity, the markers of recovery.’’ 

Id. at 471. 

However, on questioning by the ALJ, 

Dr. Hambleton testified that his 

‘‘frequency of contact’’ with Respondent 

‘‘is not what allows me to make that 

assessment of him.’’ Id. at 472. Rather, 

Dr. Hambleton explained that his 

assessment was based on reports he 

received from other participants in 

Respondent’s Caduceus group, ‘‘from 

another facilitator of the group,’’ his 

cases manager’s reports, and ‘‘watching 

him interact with other physicians 

during’’ the MPHP’s ‘‘annual Caduceus 

retreat.’’ Id. at 472. Dr. Hambleton then 

acknowledged that when he ‘‘provides 

advocacy, [his] interaction with 

participants is very limited’’ and that he 

‘‘provide[s] advocacy based on the 

constellation of collateral sources of 

information [and] their drug testing’’ 

results. Id. at 473. 

Dr. Hambleton testified that ‘‘[i]n the 

event that there is evidence of substance 

abuse, we will withdraw advocacy 

immediately, and it [will] be the end of 

his medical career.’’ Id. at 477. He also 

testified that ‘‘[i]n the event that he 

prescribes inappropriately . . . our 

medical board investigators will 

monitor it closely’’ and the Board would 

‘‘issue an immediate prohibition on 

practice.’’ Id. Dr. Hambleton was ‘‘not 

sure’’ as to how the Board found out 

about Respondent’s prescribing to his 

wife, but based on ‘‘conversations’’ he 

has ‘‘had with investigators,’’ he 

asserted that ‘‘now it is part of their 

policy to do regular PMP checks’’ on the 

MPHP’s participants.’’ Id. at 477–78. 

The MPHP does not, however, have that 

authority. Id. at 478. 

Respondent also testified on his own 

behalf. Id. at 481. After discussing his 

background, training and current 

employment, id. at 481–82, Respondent 

testified that he ‘‘[a]bsolutely’’ 

prescribed controlled substances to his 

wife and did so when she was under the 

care of another physician. Id. at 484. 

Asked if his prescribing of controlled 

substances to his wife ‘‘violated his 

obligations as a licensed doctor in . . . 

Mississippi,’’ Respondent answered: ‘‘I 

know it violated my contract with the 

professionals healthcare program.’’ Id. 

Asked if he believed that his prescribing 

‘‘in the manner that’’ he did ‘‘violated 

[his] obligations as a DEA registrant,’’ 

Respondent testified: ‘‘I don’t know the 

specific legalities of DEA registration, 

but I’m here to tell you what I did was 

wrong, period, without any 

equivocation.’’ Id. 

Respondent testified that when he 

testified before the State Board, he 

accepted responsibility for prescribing 

to his wife. Id. at 486. He then testified 

that he is under a lifetime monitoring 

contract, and that he is monitored by 

both the MPHP and the Board. Id. 

Asked why the Agency should entrust 

him with a DEA registration, 

Respondent testified: 

even . . . if I don’t know the letter or spirt 

of any law that I transgressed, I do know that 

becoming involved in a loved one’s care is 

foolish. There is no subjectivity there. I can 

be Jill’s husband, but that’s all I can be to her, 

period. There can’t be any clinical judgment, 

or any family member for that matter. 

As I testified in my [2014] board hearing 

. . . , regardless of what it had come from, 

I thought I’d hit a brick wall. And there are 

no other options for me. If I can’t practice 

medicine, conforming to every jot, tittle, to 

the letter of the law, I can’t practice 

medicine. There are no more get-out-of-jail 

cards for me. There aren’t. 

Id. at 489–90. Continuing, Respondent 

testified: 

I have tried to—perhaps I made enough 

missteps, I can provide a beacon of some sort 

to younger physicians that might think it’s 

okay to prescribe outside the bounds of 

normal patients. I don’t know what else I 

possibly could do at this point to convince 

Your Honor what more I could do to be—that 

I am worthy to be entrusted with a DEA 

registration. I will do it. If someone suggests 

something to me, I will gladly do it, but —. 

Id. at 491. 

On cross-examination, the 

Government asked Respondent if he 

understood that ‘‘DEA is alleging 

something slightly different than 

prescribing outside the contract.’’ Id. at 

494. After the ALJ overruled the 

objection of Respondent’s counsel that 

the question was outside the scope of 

direct examination, Respondent testified 

that he was ‘‘not certain that [he] 

understand[s] that fully.’’ Id. at 495. The 

Government then asked Respondent if 

he understood that ‘‘DEA is asserting 

that with respect to the prescriptions 

you issued for your wife that you 

violated Mississippi and federal law.’’ 

Id. Respondent answered: ‘‘I understand 

that you just asserted that, but my 

understanding would only stop there.’’ 

Id. 

The Government followed-up by 

asking: ‘‘so . . . you are not admitting 

that you violated either federal or state 

law with respect to the prescriptions 

you issued to your wife?’’ Id. 

Respondent testified: ‘‘I think my 

answer is I’m uncertain as to every 

component, specifically of the federal, 

to be able to answer that as honestly as 

I want to.’’ Id. 

The Government asked Respondent if 

he understood that what he had been 

charged with in the DEA proceeding 

‘‘had nothing to do with’’ his recovery 

contract. Id. at 497. Respondent 

testified: ‘‘I understand that you just 

represented half of what I understand’’ 

and added that ‘‘I was found guilty of 

two things one, violation of a previous 

order . . . Number two, the unethical 

behavior, which in my interpretation is 

subsumed by the number of things that 

you have cited as far as Mississippi 

conduct, et cetera.’’ Id. 

After noting that Respondent was 

only ‘‘admitting responsibility to what 

the Board found’’ and that was not what 

DEA had charged him with, the 

Government explained that it was 

‘‘trying to get a clarification as to what 

you’re accepting responsibility for?’’ Id. 

at 497–98. Respondent testified: 

. . . as I’ve said already . . . I wrote 

prescriptions. I shouldn’t have written 

prescriptions. It violated my contract. It 

violated my duty to my wife. It violated—in 

this one instance, in all my years of practice, 

that’s the only time I’ve ever been called into 

question, but it violated as a layperson 

everything I think I should have done, 

regardless of why I thought at the time it 

might—erroneously thought it could be 

proper. 

As far as me as a physician testifying to 

what statutes I may or may not have 

transgressed, I can’t. That would be 

speculative at least on some level for me. 

Id. 

After the ALJ sustained Respondent’s 

objection to the Government’s attempt 

to question him about both his 

testimony before the State Board and the 

patient file he maintained on his wife, 

the Government asked Respondent if he 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49723 

‘‘accept[ed] that the prescriptions that 

you issued to your wife were outside the 

course of professional practice as 

defined by the DEA?’’ Id. at 501. 

Respondent answered: 

I think I’ve answered that already. I don’t 

know precisely how the DEA defines it, and 

to be scrupulously honest, I can’t. I will once 

again accept the responsibility that what I 

did was wrong and I should not have done 

it. And I have done everything in my power 

to remediate that. But I do not know again 

. . . the specifics of the—of what I’m being 

charged with by DEA now, three years after 

I have assiduously striven to do everything 

I can to clean up and do everything right, and 

then you come along and ask me about new 

things. 

What hope is there for any other physician 

that follows me for redemption if we do 

everything we can. . . . What more, I mean, 

that’s—I’m sorry. I’m getting emotional. 

Id. at 501. Then asked if he had been 

treated unfairly by DEA, Respondent 

testified that ‘‘I’m not certain I have a 

well-founded opinion of that. I know 

that I have done everything I humanly 

can and will continue to do so and 

provide the DEA and every other 

regulatory body with anything I can to 

ensure that I am safe for the public.’’ Id. 

at 502. 

The Government then attempted to 

ask Respondent if he accepted 

responsibility for failing maintain 

patient files in compliance with 

Mississippi law. Id. at 502–03. The ALJ 

disallowed the question, explaining that 

Respondent’s ‘‘counsel has decided not 

to ask him if he wants to accept 

responsibility for that.’’ Id. 

After both the Government and 

Respondent’s counsel stated they had 

‘‘[n]othing further,’’ the ALJ observed 

that he was ‘‘was just a little bit puzzled 

as to [Respondent’s] answer about 

acceptance of responsibility.’’ Id. at 503. 

While the ALJ stated that he found 

Respondent ‘‘generally very credible,’’ 

he then explained that ‘‘[w]hat puzzles 

me is how you could come to this 

hearing without knowing what the 

charges against you by DEA are?’’ Id. 

Respondent answered that he 

‘‘presumed . . . that they would parallel 

that which the state charged me with. I 

mean, I knew we were having a 

hearing.’’ Id. Respondent then testified 

that when he ‘‘first applied for reregistration,’’ he was told by a DI that ‘‘it 

was all about my past history with 

addiction’’ but that when he ‘‘had the 

temerity to get an attorney, it morphed 

into something else,’’ so he ‘‘wasn’t sure 

if’’ he was to talk about his ‘‘recovery or 

other things.’’ Id. at 503–04. 

After the ALJ asked if he had read the 

Show Cause Order and pointed out that 

it ‘‘didn’t say anything about [his] 

failure in recovery,’’ Respondent 

acknowledged that ‘‘[i]t didn’t’’ and 

asserted ‘‘that’s why [he] was 

confused.’’ Id. at 504. Noting that the 

allegations involved his prescribing to 

his wife and his failure to make 

adequate notes in his wife’s record, the 

ALJ again expressed his puzzlement as 

to what Respondent was ‘‘accepting 

responsibility for.’’ Id. at 504–05. 

Respondent replied that he knew 

‘‘exactly what the State . . . said I did’’ 

and ‘‘I think I believe that the DEA 

mimicked that . . . [or] paralleled that.’’ 

Id. at 505. Continuing, Respondent 

stated: ‘‘And if those two specifications 

or charges are the same, then, yes, I do 

accept responsibility for what DEA 

says.’’ Id. 

The ALJ then explained that he was 

not sure what Respondent meant; 

Respondent stated that it went to his 

‘‘understanding of what I was charged 

and found guilty with by the State,’’ 

which included violating his Recovery 

Contract and ‘‘basically unethical 

behavior.’’ Id. Respondent added that he 

‘‘assumed that that was also what DEA 

was doing here . . . [and] that I was 

being called to task for the same things.’’ 

Id. at 506. 

Thereafter, the ALJ stated to 

Respondent’s counsel that if he was 

‘‘getting into an area that you don’t want 

me to ask about, don’t hesitate to object 

because I know I’m going beyond what 

your direct examination was.’’ Id. The 

ALJ further stated that he ‘‘want[ed] to 

respect the relationship between you 

and your client and your client’s rights 

in this hearing,’’ and that if he asked a 

question that Respondent’s counsel 

‘‘vigorously object[ed] to,’’ he expected 

Respondent’s counsel ‘‘to say so.’’ Id. 

Respondent’s counsel then stated that 

‘‘[t]here are lines that I’m concerned 

about here and based on the history here 

of whether or not a full-throated, yes, I 

violated this statute was going to result 

in, you know additional action against’’ 

Respondent. Id. The ALJ then offered 

Respondent’s counsel the opportunity to 

further question his client. Id. at 507. 

Respondent’s counsel resumed 

questioning Respondent and asked him 

to ‘‘clarify . . . what specific actions [he 

was] accepting responsibility for?’’ Id. 

Respondent testified: ‘‘Violating the 

previous order, right? Writing 

prescriptions for my wife when I wasn’t 

a treating physician, which I think is not 

proper document, not fully proper 

documentation of those things.’’ Id. 

Respondent’s counsel then asked if ‘‘it 

matter[ed] . . . what provisions that the 

violations fall under?’’ Id. at 508. 

Respondent answered: 

. . . I have found me guilty, and so if 

someone shows me—and perhaps . . . what 

I was saying that I’m ignorant of the specifics 

of a DEA charge. But if I meet the criteria and 

I accept I did it, then I did it. From my 

hearing in January of 2014, I never said I 

didn’t. I sat there and said, yes, this is what 

happened. There are some prescriptions 

errors in that record, but in general, yes, this 

is what happened. 

Id. Respondent further testified on redirect that he was, in the words of his 

counsel, ‘‘accepting responsibility for 

inappropriate prescribing practices 

related to [his] wife.’’ Id. 

On re-cross, the Government asked 

Respondent ‘‘[w]hat portion of the 

prescribing to [his] wife [was] 

inappropriate?’’ Id. Respondent 

answered: 

Through my education with Dr. Webb— 

well, first of all, prescribing for family 

members is a bad idea in general. I think the 

contract specifies it because commonly that 

means there’s diversion going on, and I’m 

prescribing for someone, and they’re kicking 

it back to me, but that’s not a question, and 

I think my urine tests show that didn’t 

happen. 

I think that in general the objectivity 

required even in exigent circumstances must 

be called into question when it’s a loved one. 

Id. at 508–09. 

Subsequently asked by the 

Government if ‘‘there [was] anything 

else wrong with your prescriptions to 

your wife, aside from the fact that she’s 

a family member,’’ Respondent 

answered: 

Let me think on that a minute. I’m a little 

almost frightened to answer because at no 

time do I want anyone in this courtroom 

thinking, exigent or not, that I’m saying it 

was right or that you’d have done it too if you 

were there. There’s not a complete patient 

file. I mean, is that what you’re asking me? 

Id. at 510. After the Government again 

asked Respondent what he thought he 

‘‘did wrong with respect to the 

prescriptions,’’ Respondent answered: 

‘‘again, I shouldn’t have written. I 

violated the contract. Prompt me . . . 

I’m not trying to minimize anything. I’m 

blanking, frankly.’’ Id. 

The Government then asked 

Respondent if he ‘‘admit[ted] that the 

prescriptions you issued to your wife 

were outside the usual course of 

professional practice?’’ Id. at 511. 

Respondent answered: 

As I understand that term of art . . . if the 

documentation is substandard, that that 

renders it outside the course of professional 

practice, then I would accept that, if I’m— 

any hesitancy previously has been based on 

that. I mean, you know, as a physician, I 

don’t understand that term. When you say 

outside the course of medical practice, it 

makes me think that someone just gave rat 

poison or something absurd like that. But 

when you lay the predicate about proper 

documentation, for instance, then, yes, I 

would have to accept that. 


ethrower on DSK3G9T082PROD with NOTICES
49724 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

41 In short, this is not a contest in which score 

is kept; the Agency is not required to mechanically 

count up the factors and determine how many favor 

the Government and how many favor the registrant. 

Rather, it is an inquiry which focuses on protecting 

the public interest; what matters is the seriousness 

of the registrant’s misconduct. Jayam Krishna-Iyer, 

74 FR 459, 462 (2009). Accordingly, as the Tenth 

Circuit has recognized, findings under a single 

factor can support the revocation of a registration 

or the denial of an application. MacKay, 664 F.3d 

at 821. 

42As to factor one, while the Mississippi Board 

has taken disciplinary action against Respondent 

based on his issuance of the prescriptions, the 

Board has not made a recommendation to the 

Agency with respect to whether his application 

should be granted. To be sure, as a result of the 

Board’s subsequent restoration of his medical 

license without restriction of his controlled 

substance prescribing authority under Mississippi 

law, Respondent satisfies the CSA’s prerequisite for 

obtaining a new practitioner’s registration. See 21 

U.S.C. 823(f)(1); see also id. 802(21). (defining ‘‘the 

term ‘practitioner’ [to] mean[ ] a . . . physician . . . 

or other person licensed, registered or otherwise 

permitted, by . . . the jurisdiction in which he 

practices . . . to distribute, dispense, [or] 

administer . . . a controlled substance in the course 

of professional practice’’). However, the restoration 

of Respondent’s state authority is not dispositive of 

the public interest inquiry. See Mortimer Levin, 57 

FR 8680, 8681 (1992) (‘‘[T]he Controlled Substances 

Act requires that the Administrator . . . make an 

independent determination [from that made by state 

officials] as to whether the granting of controlled 

substance privileges would be in the public 

interest.’’). 

To be sure, the Agency’s case law contains some 

older decisions which can be read as giving more 

than nominal weight in the public interest 

determination to a State Board’s decision (not 

involving a recommendation to DEA) either 

restoring or maintaining a practitioner’s state 

authority to dispense controlled substances. See, 

e.g., Gregory D. Owens, 67 FR 50461, 50463 (2002) 

(expressing agreement with ALJ’s conclusion that 

the board’s placing dentist on probation instead of 

suspending or limiting his controlled substance 

authority ‘‘reflects favorably upon [his] retaining his 

. . . [r]egistration, and upon DEA’s granting of [his] 

pending renewal application’’); Vincent J. Scolaro, 

67 FR 42060, 42065 (2002) (concurring with ALJ’s 

‘‘conclusion that’’ state board’s reinstatement of 

medical license ‘‘with restrictions’’ established that 

‘‘[b]oard implicitly agrees that the [r]espondent is 

ready to maintain a DEA registration upon the terms 

set forth in’’ its order). 

Of note, these cases cannot be squared with the 

Agency’s longstanding holding that ‘‘[t]he 

Controlled Substances Act requires that the 

Administrator . . . make an independent 

determination [from that made by state officials] as 

to whether the granting of controlled substance 

privileges would be in the public interest.’’ Levin, 

57 FR at 8681. Indeed, neither of these cases even 

acknowledged the existence of Levin, let alone 

attempted to reconcile the weight it gave the state 

board’s action with Levin. While in other cases, the 

Agency has given some weight to a Board’s action 

in allowing a practitioner to retain his state 

authority even in the absence of an express 

recommendation, see Tyson Quy, 78 FR 47412, 

47417 (2013), the Agency has repeatedly held that 

a practitioner’s retention of his/her state authority 

is not dispositive of the public interest inquiry. See, 

e.g., Paul Weir Battershell, 76 FR 44359, 44366 

(2011) (citing Edmund Chein, 72 FR 6580, 6590 

(2007), pet. for rev. denied, Chein v. DEA, 533 F.3d 

828 (D.C. Cir. 2008)). 

As to factor three, I acknowledge that there is no 

evidence that Respondent has been convicted of an 

offense under either federal or Mississippi law 

‘‘relating to the manufacture, distribution or 

dispensing of controlled substances.’’ 21 U.S.C. 

823(f)(3). However, there are a number of reasons 

why even a person who has engaged in criminal 

misconduct may never have been convicted of an 

offense under this factor, let alone prosecuted for 

one. Dewey C. MacKay, 75 FR 49956, 49973 (2010), 

pet. for rev. denied, MacKay v. DEA, 664 F.3d at 

822. The Agency has therefore held that ‘‘the 

absence of such a conviction is of considerably less 

consequence in the public interest inquiry’’ and is 

therefore not dispositive. Id. 

As for factor five, because the Government did 

not file exceptions to the ALJ’s legal conclusions 

with respect to this factor, I deem it unnecessary to 

make any findings. 

Id. at 511–12. The Government 

subsequently asked Respondent if he 

‘‘believe[d] that [his] actions increased 

the chances of [his] wife’s dependency, 

overdose, or diversion of controlled 

substances?’’ Id. at 512. Respondent 

answered ‘‘[n]o.’’ Id. 

On still a further round of re-direct, 

Respondent acknowledged that he is 

‘‘not a psychiatrist’’ and that ‘‘[t]hese 

medicines are . . . chiefly used in 

psychiatric conditions. Id. at 513. 

Respondent’s counsel further asked him 

if he understood that the DEA had 

alleged that he ‘‘prescrib[ed] controlled 

substances to someone who was under 

the care of another physician for those 

same ailments.’’ Id. Respondent testified 

that he understood that and ‘‘accept[ed] 

that’’ it was wrong for him to do that. 

Id. at 513–14. 

Respondent’s counsel then asked if 

could ‘‘be trusted to not engage in such 

prescribing in the future?’’ Id. at 514. 

Respondent testified: 

I will first say strongly, absolutely. I have 

spent the last three years trying to redeem 

this situation, to show everyone exactly how 

driven I am. And, Your Honor, I’m not trying 

to avoid anything. If someone shows me I’ve 

done something wrong, I will admit it. I’m 

not even bringing up the subtext. I did 

wrong. I throw myself upon the mercy of the 

process. I have done everything that I know 

to do to try to remedy this situation and I can 

do no more than give my sworn oath that this 

will not happen again. 

Id. 

Respondent’s counsel concluded his 

examination by asking Respondent if his 

acceptance of responsibility included 

his ‘‘prescribing to [his wife] while she 

was under the care of another doctor, 

perhaps providing medications too soon 

in terms of early refills, providing gap 

fills, [and] not having an adequate 

medical file?’’ Id. at 515. Respondent 

answered ‘‘[y]es.’’ Id. 

Discussion 

Section 303(f) of the Controlled 

Substances Act (CSA) provides that 

‘‘[t]he Attorney General may deny an 

application for [a practitioner’s] 

registration . . . if the Attorney General 

determines that the issuance of such 

registration . . . would be inconsistent 

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

823(f). 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. 

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

in the disjunctive.’’ Robert A. Leslie, 

M.D., 68 FR 15227, 15230 (2003). It is 

well settled that ‘‘I may rely on any one 

or a combination of factors, and may 

give each factor the weight [I] deem [] 

appropriate in determining whether 

. . . an application for registration 

[should be] denied.’’ Paul H. Volkman, 

73 FR 30630, 30641 (2008) (citing id.), 

pet. for rev. denied, Volkman v. DEA, 

567 F.3d 215, 222 (6th Cir. 2009); see 

also MacKay v. DEA, 664 F.3d 808, 816 

(10th Cir. 2011); Hoxie v. DEA, 419 F.3d 

477, 482 (6th Cir. 2005). Moreover, 

while I am required to consider each of 

the factors, I ‘‘need not make explicit 

findings as to each one.’’ MacKay, 664 

F.3d at 816 (quoting Volkman, 567 F.3d 

at 222 (quoting Hoxie, 419 F.3d at 

482)).41

The Government has the burden of 

proving, by a preponderance of the 

evidence, that the requirements for 

denial of an application pursuant to 21 

U.S.C. 823(f) are met. 21 CFR 

1301.44(d). However, once the 

Government has made a prima facie 

showing that issuing a new registration 

to the applicant would be inconsistent 

with the public interest, an applicant 

must then present sufficient mitigating 

evidence to show why he can be 

entrusted with a new registration. 

Medicine Shoppe-Jonesborough, 73 FR 

364, 387 (2008) (citing cases)); see also 

MacKay, 664 F.3d at 817. 

Having considered all of the factors, I 

find that the Government’s evidence 

with respect to Factors Two and Four 

satisfies its prima facie burden of 

showing that granting Respondent’s 

application would be inconsistent with 

the public interest.42 I further find that 

Respondent has failed to produce 

sufficient evidence to rebut the 

Government’s prima facie case. 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49725 

43However, as the Agency has held in multiple 

cases, ‘‘the Agency’s authority to deny an 

application [and] to revoke an existing registration 

. . . is not limited to those instances in which a 

practitioner intentionally diverts a controlled 

substance.’’ Bienvenido Tan, 76 FR 17673, 17689 

(2011) (citing Paul J. Caragine, Jr., 63 FR 51592, 

51601 (1998)); see also Dewey C. MacKay, 75 FR at 

49974. As Caragine explained: ‘‘[j]ust because 

misconduct is unintentional, innocent, or devoid of 

improper motive, [it] does not preclude revocation 

or denial. Careless or negligent handling of 

controlled substances creates the opportunity for 

diversion and [can] justify’’ the revocation of an 

existing registration or the denial of an application 

for a registration. 63 FR at 51601. 

‘‘Accordingly, under the public interest standard, 

DEA has authority to consider those prescribing 

practices of a physician, which, while not rising to 

the level of intentional or knowing misconduct, 

nonetheless create a substantial risk of diversion.’’ 

MacKay, 75 FR at 49974; see also Patrick K. Chau, 

77 FR 36003, 36007 (2012). 

Factors Two and Four—Respondent’s 

Experience in Dispensing Controlled 

Substances and Record of Compliance 

With Applicable Controlled Substance 

Laws 

Under a longstanding DEA regulation, 

a prescription for a controlled substance 

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

a legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). See also 

Miss. Code Ann. Sec. 41–29–137 (‘‘a 

‘valid prescription’ means a prescription 

that is issued for a legitimate medical 

purpose in the usual course of 

professional practice’’). 

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.’’ See United States v. Moore, 

423 U.S. 122, 142–43 (1975); United 

States v. Lovern, 590 F.3d 1095, 1100– 

01 (10th Cir. 2009); United States v. 

Smith, 573 F.3d 639, 657 (8th Cir. 2009); 

see also 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 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 related to controlled 

substances’’). As the Supreme Court has 

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 Moore, 423 U.S. 122, 135, 

143 (1975)). 

Both this Agency and the federal 

courts have held that ‘‘establishing a 

violation of the prescription 

requirement ‘requires proof that the 

practitioner’s conduct went ‘‘beyond the 

bounds of any legitimate medical 

practice, including that which would 

constitute civil negligence.’’ ’ ’’ Laurence 

T. McKinney, 73 FR 43260, 43266 (2008) 

(quoting United States v. McIver, 470 

F.3d 550, 559 (4th Cir. 2006)). See also 

United States v. Feingold, 454 F.3d 

1001, 1010 (9th Cir. 2006) (‘‘[T]he Moore 

Court based its decision not merely on 

the fact that the doctor had committed 

malpractice, or even intentional 

malpractice, but rather on the fact that 

his actions completely betrayed any 

semblance of legitimate medical 

treatment.’’); Jack A. Danton, 76 FR 

60900, 60904 (2011) (finding violations 

of 21 CFR 1306.04(a), in the absence of 

expert testimony, ‘‘where a physician 

has utterly failed to comply with 

multiple requirements of state law for 

evaluating her patients and determining 

whether controlled substances are 

medically indicated and thus has 

‘completely betrayed any semblance of 

legitimate medical treatment’ ’’) (quoting 

McKinney, 73 FR at 43266 (quoting 

Feingold, 454 F.3d at 1010)).43

Under the Mississippi Board’s Rule 

1.4: 

Patient Record. A physician who 

prescribes, dispenses, or administers a 

controlled substance shall maintain a 

complete record of his or her examination, 

evaluation and treatment of the patient 

which must include documentation of the 

diagnosis and reasons for prescribing, 

dispensing or administering of any controlled 

substance; the name, dose, strength, quantity 

of the controlled substance and the date that 

the controlled substance was prescribed, 

dispensed or administered. The record 

required by this rule shall be maintained in 

the patient’s medical records, provided that 

such medical records are maintained at the 

office of the physician . . . . 

No physician shall prescribe, administer or 

dispense any controlled substance or other 

drug having addiction-forming or addictionsustaining liability without a good faith prior 

examination and medical indication 

therefore. 

Miss. Admin. Code part 2640, Ch.1 r. 1.4. 

Continuing, Rule 1.4 explains that: 

A determination as to whether a ‘‘good 

faith prior examination and medical 

indication therefore’’ exists depends upon 

the facts and circumstances in each case. One 

of the primary roles of a physician is to elicit 

detailed information about the signs and 

symptoms which a patient presents in order 

that he or she may recommend a course of 

treatment to relieve the symptoms and cure 

the patient of his or her ailment or maintain 

him or her in an apparent state of good 

health. In order for a physician to achieve a 

proper diagnosis and treatment plan, a 

history and physical examination consistent 

with the nature and complaint are necessary. 

. . . The paramount importance of a 

complete medical history in establishing a 

correct diagnosis is well established. 

Standards of proper medical practice require 

that, upon any encounter with a patient, in 

order to establish proper diagnosis and 

regimen of treatment, a physician must take 

three steps: (a) take and record an 

appropriate medical history, (b) carry out an 

appropriate physical examination, and (c) 

record the results. The observance of these 

principles as a function of the ‘‘course of 

legitimate professional practice’’ is 

particularly of importance in cases in which 

controlled substances are to play a part in the 

course of treatment. It is the responsibility of 

the physician to dispense, prescribe or 

administer such drugs with proper regard for 

the actual and potential dangers. 

Id. 

Rule 1.4 further notes that ‘‘[a] 

determination of proper ‘medical 

indication’[ ] also requires a careful 

examination of the nature of the drug 

and all circumstances surrounding 

dispensation.’’ Id. The Rule also 

specifically notes that ‘‘repeated refills 

over relatively short periods of time or 

the issuance of prescriptions at a time 

when the patient should not have 

finished taking the same medication 

from a prior prescription had the 

prescription directions been properly 

followed or the correct dosage taken’’ is 

a factor indicating a lack of good faith 

on the part of a physician. Id. Also, the 

Board’s Rule 1.16 specifically provides 

that ‘‘[t]he prescribing, administering or 

dispensing of any controlled substance 

in violation of the above rules shall 

constitute the administering, dispensing 

or prescribing of any narcotic drug or 

other drug having addiction-forming or 

addiction-sustaining liability otherwise 

than in the course of legitimate 

professional practice, in violation of 

Mississippi Code [ ] Section 73–25– 

29(3). ’’ Miss. Admin. Code part 2640, 

Ch. 1, r. 1.16). 

Here, the ALJ found that that 

Respondent acted outside of the usual 

course of professional practice and 

lacked a legitimate medical purpose 

when he issued numerous prescriptions 

for controlled substances included 

alprazolam, diazepam, hydrocodone, 

zolpidem, and Adderall (amphetamine). 

R.D. 39–44. I agree with the ALJ that 

Respondent violated 21 CFR 1306.04(a) 

in issuing the prescriptions. I further 

find that in issuing each of the 

prescriptions enumerated above (Nos. 1 

through 53), Respondent acted outside 

of the usual course of professional 

practice and lacked a legitimate medical 

purpose in doing so. 

Dr. Chambers provided unrefuted 

testimony that it is not within the usual 


ethrower on DSK3G9T082PROD with NOTICES
49726 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

44See supra findings for RXs No. 1–21, 25, 26, 

28–31, 33, 35–37, 39, 43, 45, 49, and 51. 

45While some of Respondent’s prescriptions for 

30 du of zolpidem had a dosing instruction of two 

tablets, the dosing instructions generally provided 

for one tablet. 

46This is based on Respondent’s note for the 

prescription. 

47While Dr. Bell (his wife’s neurologist) issued 

hydrocodone prescriptions to Respondent’s wife on 

November 30, 2011 and June 19, 2013, 

Respondent’s testimony before the Board addressed 

only his July 2013 prescriptions. GE 14, at 86. 

course of professional practice to 

prescribe a controlled substance to a 

patient with mental illness when the 

patient is being treated by a primary 

prescriber and the second physician 

does not communicate to the primary 

physician that he has issued the 

prescription. Tr. 275. Dr. Chambers 

testified as to the serious risks created 

by such prescribing, including 

oversedation, memory disturbance, 

overdose and potentially death, 

especially if the patient is also taking 

opioids. Id. at 250; see also id. at 268– 

69. Dr. Chambers also explained that 

when a patient is obtaining drugs from 

other sources and the primary prescriber 

is unaware, this ‘‘can create a great deal 

of confusion on the part of the primary 

prescriber about the effects or side 

effects of the drug and the mental status 

of the patient.’’ Id. at 251; see also id. 

at 291 (‘‘If you have two chefs in the 

kitchen, this is the kind of stuff that can 

happen as you get chaos and harm and 

polypharmacy and no one 

understanding what is the illness versus 

what is [sic] the side effects of the 

medications, and it can lead to 

escalation of mental illness, addiction, 

and even death.’’). 

Dr. Chambers also offered unrefuted 

testimony that Respondent’s prescribing 

resulted in ‘‘a combination of multiple 

overlaps of multiple classes of addictive 

substances that can produce overdose 

and severe psychiatric disturbances.’’ 

Id. at 273. And while Respondent is not 

a psychiatrist, Dr. Chambers offered 

unrefuted testimony that within the 

practice of psychiatry, there is a 

prohibition against treating a spouse. Id. 

at 293. Dr. Chambers further offered 

unrefuted testimony that Respondent’s 

prescribing was not for legitimate 

medical practice and was nontherapeutic. I thus find that Respondent 

violated 21 CFR 1306.04(a) with respect 

to each of the prescriptions set forth 

above. 

Respondent’s failure to maintain 

adequate records to support the 

prescriptions provides additional 

support for this conclusion, as well as 

the conclusion that Respondent violated 

Mississippi Board Rule 1.4’s provisions 

with respect to patient records.44 As 

found above, there was no 

documentation at all to support 36 of 

the prescriptions. Moreover, even with 

respect to the entries Respondent did 

make, Dr. Chambers found that ‘‘there is 

a paucity of data to support the 

diagnosis or the prescriptions . . . that 

the note is built around. There’s a lack 

of physical or mental status exam that 

normally would be in a note like this to 

justify and direct the use of controlled 

substances.’’ Tr. 277. Dr. Chambers also 

observed that ‘‘there are instances where 

the dosing or type of the drug is left out 

of the record.’’ Id. at 278. See also GE 

6, at 6 (entry for 2/5/13); id. at 7 (entry 

for 3/28/13); id. at 8 (5/13/13 no dosing 

for Ambien); id. at 9 (entries for 7/1/13 

no dosing for Lorcet and 7/7/13 no 

dosing for Lorcet and Xanax); id. at 10 

(no drug strength for Xanax 

prescriptions of 8/24/13 and 9/5/13). 

Before the State Board, Respondent 

testified that his prescribing ‘‘was 

sporadic’’ and ‘‘was always for a 

confined number of pills, a small 

amount, that bridged her gap between 

obviously when she was in crisis and 

didn’t have any medicine.’’ GE 14, at 58. 

He maintained that ‘‘the majority of the 

medicine were Xanax, two milligrams, 

[and that a] three day supply were [sic] 

common.’’ Id. at 59–60. Also before the 

State Board, he maintained that ‘‘I think 

the record reflects that I filled in in 

times where I just didn’t think I had no 

other choice.’’ Id. He further asserted 

that his writing of the prescriptions 

‘‘was always done in a short stop gap 

times [sic] when I believed again . . . 

that there were no other options.’’ Id. at 

69. 

Although the Government introduced 

into evidence the transcript of the 

January 2014 state board proceeding, it 

did not submit the Board’s order 

prohibiting him from practice and/or 

the charging document, any of the 

exhibits submitted in the Board 

proceeding which may have shown 

what prescriptions were at issue in the 

proceeding, or even the Board’s order 

suspending his license after the January 

2014 proceeding. However, while it may 

have been the case that Respondent’s 

explanation as to his reasons for 

prescribing during the 2014 board 

proceeding was consistent with the 

evidence presented at that proceeding, it 

is not consistent with much of the 

evidence submitted in this proceeding. 

As found above, the record contains 

numerous prescriptions which are not 

fairly characterized as two to three-day 

gap fills. With respect to Respondent’s 

prescribing of zolpidem, they include 

fourteen prescriptions which clearly 

were not short-term gap fills. These 

prescriptions include numbers 2, 4, 6, 8, 

22, 26, 28 (each for 30 du 45), 23 (28 du), 

29 (24 du), 15, 45 (each for 20 du), and 

10, 12, 13 (each for 12 du). 

With respect to Respondent’s 

prescribing of alprazolam, they include 

prescription numbers 11 (20 du, a 10 to 

20-day supply), 34 (30 du, a 10-day 

supply 46), 53 (24 du, an eight-day 

supply), 31, 32 (each for 20 du, each for 

a 10-day supply), 38, 52 (15 du, a fiveday supply) 42, 43 (14 du, a 4–5 day 

supply), and 44, 47 (12 du, one a fourday supply, the other a six-day supply). 

Respondent also issued a prescription 

for 18 tablets of clonazepam (a six-day 

supply), 15 capsules of 

Dextroamphetamine-Amphetamine 5 

mg (a five-day supply), and 20 tablets of 

diazepam (a six-day supply). With 

respect to the diazepam prescription, 

Dr. Webb did not even prescribe this 

drug to Respondent’s wife. Of note, 

before the State Board, Respondent 

testified that he did not change his 

wife’s treatment regimen and only 

‘‘mirrored what [Dr. Webb] had done.’’ 

GE 14, at 65. 

Likewise before the State Board, 

Respondent initially offered testimony 

regarding his prescribing of 

hydrocodone which addressed only the 

prescriptions he wrote after a plastic 

surgeon had drained an abscess in his 

wife’s thigh and when his wife had a 

seizure and fell. Moreover, when on 

cross-examination a Board member 

identified the multiple hydrocodone 

prescriptions Respondent issued in July 

2013, Respondent testified that ‘‘that 

was an isolated incident there.’’ Id. at 

66. The evidence in this proceeding 

shows, however, that during 2011, 

Respondent issued seven hydrocodone 

prescriptions (Nos. 3, 5, 7, 9, 14, 16, 19) 

for his wife prior to any other doctor 

prescribing the drug to her. See GE 11, 

at 11 (hydrocodone Rx written on Nov. 

30, 2011 by Dr. Bell, who Respondent 

identified as his wife’s neurologist). 

Respondent has offered no explanation 

in either proceeding as to why he issued 

these seven prescriptions, as well as the 

hydrocodone prescriptions he issued on 

December 5, 2011 (No. 21), Aug. 13, 

2012 (No. 33) and Jan. 23, 2013 (No. 

39).47

Also, in a number of instances, 

Respondent issued prescriptions even 

though his wife had refills available 

under prescriptions that were 

previously issued by Dr. Webb. For 

example, on March 30, 2011, 

Respondent issued a prescription for 30 

zolpidem. (Rx No. 4). However, Dr. 

Webb’s February 3, 2011 zolpidem 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49727 

provided for multiple refills, which 

Respondent’s wife filled on April 9, 

2011, May 23, 2011, and July 7, 2011. 

Moreover, Respondent issued new 

prescriptions for 30 zolpidem to his 

wife on May 6, 2011 and June 28, 2011 

(Rx No. 6 & 8). Respondent’s 

prescriptions of March 30, May 6, and 

June 28 were clearly not ‘‘gap fills.’’ 

Moreover, when Respondent issued 

the July 31, 2011 prescription for 12 

zolpidem, he also authorized a refill, 

which was available to his wife on 

August 28, 2011 (which she did not fill 

until September 6, 2011), when 

Respondent issued her a new 

prescription for 12 zolpidem. See Rx 

No. 10 & 12. (Dr. Webb had also issued 

a 60 du zolpidem prescription on 

August 16, 2011 which provided 

multiple refills.). Even ignoring the 

prescription she obtained from Dr. 

Webb, Respondent’s August 28, 2011 

prescription was not a gap fill given that 

she had a refill available on 

Respondent’s July 31, 2011 prescription. 

So too, Respondent’s October 11, 2011 

prescription for 20 zolpidem, a 20-day 

supply, (Rx No. 16) was issued 

notwithstanding that Dr. Webb’s August 

16, 2011 zolpidem prescription 

provided for five refills, one of which 

his wife filled on October 19, 2011. See 

GE 11, at 10–12. Even if Respondent’s 

wife had run out of medication early 

because she failed to follow Dr. Webb’s 

dosing instruction, she did not need this 

quantity of drugs to last her to the day 

on which she could refill Dr. Webb’s 

prescription. 

Another such example involves 

Respondent’s December 27, 2011 

prescription for 30 zolpidem and his 

January 7, 2012 prescription for 28 

zolpidem. (Nos. 22 & 23). Respondent’s 

wife had obtained a refill of Dr. Webb’s 

August 16, 2011 prescription for 60 du 

on December 16, 2011, only 11 days 

earlier (Dec. 16). Thus, there was no gap 

to fill. Nor was there a gap to fill on 

January 7, 2012, when he issued the 

prescription for an additional 28 dosage 

units given the quantity of drugs his 

wife had recently obtained. 

Still more examples are provided by 

the zolpidem prescriptions Respondent 

issued on March 4 and 12 (both for a 30- 

day supply), as well April 1, 2012 (for 

a 24-day supply). During this period, 

Respondent’s wife obtained a 

prescription for 30 du (a 15-day supply) 

on February 23, 2012, which provided 

for two refills, the first of which she 

obtained on March 19, 2012. Here again, 

the only potential gap was likely created 

by the failure of Respondent’s wife to 

follow Dr. Webb’s dosing instructions 

on the February 23rd prescription. 

Moreover, the March 12, 2012 

prescription was not a gap fill given that 

Respondent issued the March 4, 2012 

prescription, which provided a 30-day 

supply. Nor was the April 1, 2012 

prescription a gap fill given 

Respondent’s issuance of the March 12 

prescription and the refill she obtained 

on March 19, 2012 pursuant to Dr. 

Webb’s Feb. 23 prescription. 

Similarly, the evidence shows that on 

January 11, 2013, Respondent issued a 

prescription for 10 du of alprazolam (see 

No. 36). While this prescription 

provided only a three-day supply, the 

evidence shows that Respondent’s wife 

had refilled a prescription issued by Dr. 

Webb for 45 du of alprazolam the day 

before. GE 11, at 8. Thus, this was not 

a gap fill. Nor was Respondent’s January 

11, 2013 temazepam prescription (No. 

37) a gap fill as the evidence shows that 

his wife had also refilled a prescription 

for a 30-day supply of this drug the day 

before. GE 11, at 8. 

As one further example, on May 20, 

2013, Respondent issued a prescription 

for 20 tablets of zolpidem (No. 45). The 

evidence shows, however, that Dr. Webb 

had not issued a zolpidem prescription 

since February 23, 2012, which his wife 

last refilled in April 2012. Here again, 

this was not a gap fill. 

Had Respondent’s prescribing been 

limited to a few instances of small (two 

to three day) gap fills, his conduct 

would be considerably less egregious 

given the circumstances of his wife’s 

illness. The evidence shows, however, 

that his illicit prescribing went on for 

nearly three years. Even more disturbing 

is that the evidence shows that many of 

the prescriptions were not for gap fills 

at all, let alone for gap fills for two to 

three day periods as he testified before 

the State Board. 

Notably, in this proceeding, 

Respondent has personally offered no 

explanation as to why he issued the 

prescriptions. Moreover, the only 

evidence he offered was the discredited 

testimony of his wife that there 

occasionally were times when she 

‘‘might run out a day early on a 

weekend’’ and only needed a short term 

supply until Dr. Webb got back to her 

and that Respondent had never given 

her a prescription for a time period 

longer than two to four days. Tr. 379, 

381, 384. 

I thus conclude that the Government’s 

evidence with respect to Factors Two 

and Four makes out a prima facie case 

to deny Respondent’s application as 

‘‘inconsistent with the public interest.’’ 

21 U.S.C. 823(f). I further find that 

Respondent’s misconduct was 

egregious. 

Sanction 

Where, as here, the Government has 

met its prima facie burden of showing 

that issuing a new registration to the 

applicant would be inconsistent with 

the public interest, a respondent must 

come forward with ‘‘sufficient 

mitigating evidence’’ to show why he 

can be entrusted with a new 

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 MacKay v. DEA, 

664 F.3d at 820; 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). 

Moreover, the egregiousness and 

extent of a registrant’s misconduct are 

significant factors in determining the 

appropriate sanction. See Jacobo 

Dreszer, 76 FR 19386, 19387–88 (2011) 

(explaining that a respondent can 

‘‘argue that even though the 

Government has made out a prima facie 

case, his conduct was not so egregious 

as to warrant revocation’’); Paul H. 

Volkman, 73 FR 30630, 30644 (2008); 

see also Paul Weir Battershell, 76 FR 

44359, 44369 (2011) (imposing sixmonth suspension, noting that the 

evidence was not limited to security and 

recordkeeping violations found at first 

inspection and ‘‘manifested a disturbing 

pattern of indifference on the part of 

[r]espondent to his obligations as a 

registrant’’); Gregory D. Owens, 74 FR 

36751, 36757 n.22 (2009). 

Finally, the Agency has also held that 

‘‘ ‘[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’ ’’ or an application should be 

denied. Wesley Pope, 82 FR 14944, 

14985 (2017) (quoting Joseph Gaudio, 

74 FR 10083, 10094 (2009) (quoting 

Southwood Pharmaceuticals, Inc., 72 FR 

36487, 36504 (2007))). See also Robert 

Raymond Reppy, 76 FR 61154, 61158 


ethrower on DSK3G9T082PROD with NOTICES
49728 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

48To the extent the ALJ’s statement suggests that 

a respondent can satisfy his burden of production 

on the issue of acceptance of responsibility by only 

producing evidence of efforts at rehabilitation, this 

is not the Agency’s rule. Indeed, Leslie makes it 

clear that it was describing the total showing that 

is required to refute the Government’s prima facie 

case. See Leslie, 68 FR at 15228 (discussing 

previous agency decision involving respondent and 

stating that ‘‘[t]he agency also found that although 

he was free to offer evidence that he would never 

again engage in the sort of conduct that resulted in 

his conviction, [r]espondent did not avail himself 

of that opportunity and offered no evidence of 

remorse for his misconduct, efforts at rehabilitation, 

or recognition of the severity of his conduct’’). 

The Agency has explained that where the 

Government has proved that a respondent has 

committed knowing or intentional misconduct, a 

respondent must fully acknowledge the misconduct 

that has been proved on the record to be deemed 

to have accepted responsibility, and absent such a 

showing, his evidence of remedial measures is 

irrelevant. See Hatem M. Ataya, 81 FR 8221, 8242– 

43 (2016) (‘‘the Agency has held that proof of 

remedial measures is rendered irrelevant where a 

respondent fails to accept responsibility for his 

knowing or intentional misconduct’’). 

49More recently, in Roberto Zayas, 82 FR 21410, 

21429 (2017), I rejected the reasoning of Jeffrey 

Martin Ford, 68 FR 10750 (2003), which granted a 

new registration to a respondent who had a history 

of substance abuse and had been convicted of 

several drug felonies. In Zayas, I noted that the Ford 

‘‘decision apparently excused the respondent’s 

failure to unequivocally accept responsibility based 

on his having attended drug rehabilitation and 

remained sober for more than 10 years, as well [as] 

having satisfied the conditions for reinstatement of 

his state license.’’ 82 FR 21429. I also noted that 

‘‘the decision [did] not even address whether [the 

respondent] accepted responsibility for his criminal 

conduct.’’ Id. I further explained that I found ‘‘the 

reasoning of this case unpersuasive, [and] were a 

case with similarly egregious misconduct presented 

to me, I would not grant a registration absent a clear 

and unequivocal acceptance of responsibility for all 

of the misconduct that was proven on the record.’’ 

Id. See also Jones Total Health Care, 81 FR 79188, 

79200–01 (2016) (‘‘[W]here the Government has 

proved that a registrant has engaged in intentional 

or knowing misconduct, revocation is warranted in 

the absence of the registrant’s unequivocal 

acceptance of responsibility for its misconduct.’’); 

Joe W. Morgan, 78 FR 61961, 61963 (2013) (‘‘Given 

[r]espondent’s multiple statements in which he 

blamed others for his troubles, that he never once 

acknowledged that he prescribed in violation of the 

CSA and Florida law, and that he attempted 

unpersuasively to minimize his culpability, the 

overwhelming weight of the evidence fully supports 

the ALJ’s conclusion that [r]espondent is sorry only 

because he was caught.’’). 

(2011); Michael S. Moore, 76 FR 45867, 

45868 (2011). This is so, both with 

respect to the respondent in a particular 

case and the community of registrants. 

See Pope, 82 FR at 14985 (quoting 

Gaudio, 74 FR at 10095 (quoting 

Southwood, 71 FR at 36503)). Cf. 

McCarthy v. SEC, 406 F.3d 179, 188–89 

(2d Cir. 2005) (upholding SEC’s express 

adoptions of ‘‘deterrence, both specific 

and general, as a component in 

analyzing the remedial efficacy of 

sanctions’’). 

The ALJ acknowledged that ‘‘to rebut 

the Government’s prima facie case, the 

Respondent must both accept 

responsibility for his actions and 

demonstrate that he will not engage in 

future misconduct.’’ R.D. at 52 (citing 

Patrick W. Stodola, 74 FR 20727, 

20734–35 (2009)). The ALJ then 

explained that ‘‘[t]he Respondent may 

accept responsibility by providing 

evidence of his remorse, his efforts at 

rehabilitation, and his recognition of the 

severity of his misconduct.’’ 48 Id. (citing 

Robert A. Leslie, 68 FR 15227, 15228 

(2003)). He also explained that ‘‘[t]o 

accept responsibility, a respondent must 

show ‘true remorse’ for wrongful 

conduct,’’ which includes an 

‘‘acknowledgment of wrongdoing.’’ Id. 

(citing Michael S. Moore, 76 FR 45867, 

45877 (2011) and Wesley G. Harline, 65 

FR 5665, 5671 (2000)). 

However, there are also numerous 

cases, that were not discussed in the 

Recommended Decision, which hold 

that where the Government has proved 

that a respondent committed knowing 

or intentional misconduct, he must 

unequivocally acknowledge his 

misconduct. See Daniel A. Glick, 80 FR 

74800, 74800–01 (2015) (rejecting 

exception to ‘‘CALJ’s conclusion that 

[r]espondent has not unequivocally 

acknowledged his misconduct’’ and 

holding that ‘‘[a] registrant’s acceptance 

of responsibility must be unequivocal’’); 

Annicol Marrocco, 80 FR 28695, 28706 

(2015) (denying application, holding 

that respondent’s ‘‘equivocal testimony 

provided substantial evidence to 

support a finding that she does not 

accept responsibility for her 

misconduct’’); Arthur H. Bell, 80 FR 

50035, 50041 (2015) (denying 

application finding that physician’s 

‘‘acceptance of responsibility is 

equivocal at best’’ and ‘‘his failure to 

accept responsibility for [intentional] 

misconduct is reason alone to conclude 

that he cannot be entrusted with a new 

registration’’); Michael A. White, 79 FR 

62957, 62598, 62967–68 (2014) 

(revoking registration adopting ALJ’s 

finding that physician did not accept 

responsibility when his ‘‘acceptance of 

responsibility was tenuous at best,’’ 

‘‘not once during the hearing did [he] 

unequivocally admit fault for his 

improper . . . prescriptions,’’ and he 

‘‘minimized the severity of his 

misconduct’’); The Medicine Shoppe, 79 

FR 59504, 59510 (2014) (revoking 

registration where respondent ‘‘offered 

generalized acceptance of 

responsibility’’ but then denied filling 

any unlawful prescriptions); Ronald 

Lynch, 75 FR 78745, 78754 (2010) 

(revoking registration agreeing with 

ALJ’s finding that respondent did not 

accept responsibility noting that he 

‘‘repeatedly attempted to minimize his 

[egregious] misconduct).49

I disagree with the ALJ’s conclusion 

that Respondent is entitled to a finding 

that he has accepted responsibility for 

his misconduct. To the contrary, I find 

that his testimony was equivocal and 

that he repeatedly attempted to 

minimize his misconduct. Indeed, even 

after the ALJ granted Respondent a 

second chance to explain what he was 

accepting responsibility for, he still did 

not unequivocally acknowledge his 

misconduct. 

In this matter, Respondent was 

specifically charged with violating 21 

CFR 1306.04(a), the CSA’s prescription 

regulation which requires that a 

controlled substance prescription ‘‘be 

issued for a legitimate medical purpose 

by [a] practitioner acting in the usual 

course of professional practice.’’ ALJ Ex. 

1, at 1–3 (¶¶ 3–9). Indeed, the 

Government specifically alleged that the 

prescriptions ‘‘were nontherapeutic, 

were for other than a legitimate medical 

purpose, and were outside the course of 

professional practice.’’ Id. The 

Government also alleged that the 

prescriptions violated the counterpart 

provision of State law. See id. (citing 

Board Rule 1.16 and Miss. Code Sec. 

73–25–29–(3)). The Government further 

alleged that Respondent violated 

provisions of State regulations 

prohibiting the prescribing of controlled 

substances ‘‘without conducting any 

examination of [his] wife (or 

documenting such in her file) or noting 

the . . . prescriptions in her patient 

chart,’’ as well as ‘‘without conducting 

sufficient examinations of [his] wife (or 

documenting such in her file).’’ Id. at 3 

(citing, inter alia, Board Rules 1.4 and 

1.16, Miss. Code Ann. Sec. 73–25– 

29(3)). 

Notwithstanding that the Show Cause 

Order clearly set forth these violations, 

and that Dr. Chambers offered unrefuted 

testimony that Respondent’s prescribing 

was outside of the ‘‘usual course of 

clinical conduct,’’ ‘‘was dangerous and 

harmful,’’ ‘‘non-therapeutic,’’ not for a 

‘‘legitimate medical practice,’’ that there 

was ‘‘a paucity of data to support the 

diagnosis or the prescriptions’’ and 

there was ‘‘a lack of physical or mental 

status exam’’ documented in the noted 

to justify the prescriptions, Respondent 

repeatedly refused to acknowledge that 

he violated 21 CFR 1306.04(a). 

While Respondent testified that he 

violated his contract with the State PHP 

(which was not a charge in this 

proceeding), when asked by his counsel 

if he violated his obligations as a DEA 

registrant, he asserted that he did not 

‘‘know the specific legalities of DEA 

registration’’ but was willing ‘‘to tell you 

what I did was wrong, . . . without any 

equivocation.’’ Tr. 484–85. While he 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49729 

50 Yet in his Pre-hearing Statement, Respondent 

stated that he ‘‘will acknowledge the allegations 

raised by DEA in the Order to Show Cause.’’ ALJ 

Ex. 5, at 3. 

51See Webster’s Third New International 

Dictionary, at 1221 (1976) (defining ‘‘jot’’ as ‘‘the 

least bit: IOTA’’); see also id. at 2401(defining 

‘‘tittle,’’ in part, as ‘‘a very small part’’). 

52 In his Pre-hearing Statement, Respondent also 

stated ‘‘he will discuss the circumstances in which 

Continued 

also acknowledged that ‘‘becoming 

involved in a loved one’s care is 

foolish,’’ he then stated that he did not 

‘‘know the letter or spirit of any law that 

I transgressed.’’ Id. at 489. And when 

asked why the Agency should entrust 

him with a new registration, he testified 

that ‘‘[i]f I can’t practice medicine, 

conforming to every jot, tittle, to the 

letter of the law, I can’t practice 

medicine,’’ but he offered no 

explanation as to how he would 

conform ‘‘to the letter of the law’’ given 

his acknowledgment that he does not 

‘‘know the letter of or spirit of any law 

that [he] transgressed.’’ Id. at 489–90. 

Indeed, throughout his testimony, 

Respondent asserted that he thought the 

charges in this proceeding simply 

involved the same charges that he was 

found guilty of in the State Board 

proceeding. He doggedly denied that he 

violated the CSA’s prescription 

requirement, asserting that that it 

‘‘would be speculative . . . on some 

level’’ for him to testify as ‘‘to what 

statutes I may or may not have 

transgressed.’’ Id. at 498. And when 

asked if he accepted that the 

prescriptions he issued to his wife 

‘‘were outside the course of professional 

practice,’’ he asserted that he did not 

know how DEA defined the term 

‘‘outside the course of professional 

practice’’ and maintained that I ‘‘do not 

know again . . . the specifics of . . . of 

what I’m being charged with by DEA 

now.’’ 50 Id. at 501. 

Given that the Show Cause Order 

provided fair notice to Respondent that 

he was charged with violating 21 CFR 

1306.04(a) and that he heard the 

evidence against him and put up no 

defense, he was not required to 

speculate as to ‘‘what statutes [he] may 

or may not have transgressed.’’ 

Moreover, the CSA’s requirement that 

‘‘a prescription for a controlled 

substance . . . must be issued for a 

legitimate medical purposes by [a] 

practitioner acting in the usual course of 

professional practice’’ is hardly a ‘‘jot’’ 

or a ‘‘tittle’’ of the Act.51 To the 

contrary, the rule is one of the Act’s 

fundamental features, as one of its 

purposes is to ‘‘ensure [] patients use 

controlled substances under the 

supervision of a doctor so as to prevent 

addiction and recreational abuse.’’ 

Gonzales, 546 U.S. at 274. 

Notably, even after the ALJ repeatedly 

expressed his puzzlement as to what 

Respondent was accepting 

responsibility for, Respondent testified 

that he was accepting responsibility for 

what the State said he did and again 

asserted that he thought the charges in 

the DEA proceeding were the same as 

the charges which he was found guilty 

of by the State Board. Tr. 503–05. While 

the ALJ subsequently gave Respondent 

several chances to answer this question, 

his testimony continued to manifest 

equivocation, minimization and an 

unwillingness to acknowledge that he 

violated the CSA’s prescription 

requirement. 

For example, when asked to ‘‘clarify 

. . . what specific actions [he was] 

accepting responsibility for,’’ 

Respondent answered: ‘‘[v]iolating the 

previous order, right? Writing 

prescriptions for my wife when I wasn’t 

a treating physician, which I think is not 

proper document, not fully proper 

documentation of those things.’’ Tr. 507. 

He subsequently testified that ‘‘if 

someone shows me . . . what I was 

saying that I’m ignorant of the specifics 

of a DEA charge. But if I meet the 

criteria and I accept I did it, then I did 

it.’’ Id. at 508 (emphasis added). See 

also id. at 514 (‘‘If someone shows me 

I’ve done something wrong, I will admit 

it.’’) 

However, as found above, the 

unrefuted evidence, including the 

testimony of Dr. Chambers, establishes 

that Respondent’s prescribing did ‘‘meet 

the criteria’’ for a violation of 21 CFR 

1306.04(a). Yet even when confronted 

with this evidence, Respondent still was 

unwilling to accept that he ‘‘did it.’’ Id. 

On further cross-examination, 

Respondent was again asked what he 

thought was ‘‘wrong with respect to the 

prescriptions.’’ Id. at 510. While he 

answered that ‘‘I shouldn’t have 

written’’ and ‘‘I violated the contract,’’ 

he then stated: ‘‘[p]rompt me. I’m not 

trying to minimizing anything.’’ Id. 

Minimizing is, however, exactly what 

Respondent was engaged in. And when 

the Government again asked 

Respondent if he was admitting that the 

prescriptions were issued outside the 

usual course of professional practice, 

Respondent maintained that ‘‘as a 

physician, I don’t understand that term’’ 

and he was only willing to admit to 

acting outside of the usual course to the 

extent that his documentation was 

‘‘substandard.’’ Id. at 511. He then 

denied that his prescribing had 

increased the chances of his wife’s 

becoming dependent, overdosing or 

diverting controlled substances. 

While it is true that on a still further 

round of re-direct examination, 

Respondent testified that it was wrong 

for him to ‘‘prescribe controlled 

substances to someone who was under 

the care of another physician for those 

same ailments,’’ this is not a full 

acknowledgment of his illegal behavior. 

Indeed, the mere fact that a physician 

prescribes controlled substances to 

someone who is under care of another 

physician for the same ailments would 

not necessarily give rise to liability 

under 1306.04(a). Such prescribing 

would be entirely lawful under the CSA 

in bona fide emergency situations 

provided the prescriptions were limited 

to what was medically necessary to treat 

a patient before the primary physician 

could resume care. 

Here, however, Respondent has 

admitted to acting outside of the usual 

course of professional practice only to 

the extent he maintained ‘‘substandard 

records.’’ Notwithstanding Dr. 

Chambers’ testimony, Respondent has 

failed to acknowledge that his 

prescribing increased the risks of his 

wife become dependent, overdosing, or 

diverting controlled substances, his 

failure to conduct appropriate 

examinations, as well as his failure to 

notify Dr. Webb that he had prescribed 

the drugs. 

Moreover, before the State Board, 

Respondent maintained that his 

prescribing ‘‘was sporadic,’’ ‘‘was 

always for a confined number of pills,’’ 

that they were simply short gap fills 

which ‘‘mirrored what [Dr. Webb] had 

done.’’ However, as found above, many 

of the prescriptions provided 

substantially more medication than was 

necessary for a two to three-day period. 

These include 14 zolpidem 

prescriptions, each of which provided at 

least a 12-day supply (with 11 of the 

prescriptions providing 20 to 30 dosage 

units, most of which for a 20 to 30-day 

supply) and five of the alprazolam 

prescriptions, four of which were for a 

ten-day supply, the other being for an 

eight-day supply. There were also the 

seven hydrocodone prescriptions and a 

diazepam prescription, which although 

they were for small amounts, did not 

‘‘mirror what [Dr. Webb or any other 

doctor] had done,’’ and are unsupported 

by the findings of an examination and 

a diagnosis. 

Respondent personally offered no 

explanation in this proceeding (or 

before the State Board) as to why he 

issued these prescriptions, which 

clearly provided more drugs than were 

medically necessary to address a two- to 

three-day period.52 Indeed, while 


ethrower on DSK3G9T082PROD with NOTICES
49730 Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 

he prescribed controlled substances to his wife.’’ 

ALJ Ex. 5, at 3. Respondent, however, offered no 

such testimony. 

53Based on the Board’s order and his recovery 

contract, Respondent ‘‘should not have’’ written the 

prescriptions. Yet, as the ALJ recognized when he 

expressed his puzzlement (multiple times) at to 

what Respondent was accepting responsibility for, 

the Government did not allege that Respondent 

violated his recovery contract or a Board Order; it 

alleged specific violations of federal and state laws 

and regulations. 

54Earlier in his Recommended Decision, the ALJ 

asserted that my decision in Arvinder Singh, 81 FR 

8247 (2016), ‘‘states only that a registrant may be 

required to acknowledge the scope of his 

misconduct,’’ thus suggesting that a respondent’s 

acknowledgment of the scope of his misconduct is 

optional and that he is not required to ‘‘accept 

responsibility for the consequences of his acts.’’ 

R.D. 54 (citing 81 FR at 8250–51). This is mistaken, 

as the case clearly stated that the respondent ‘‘was 

required to acknowledge . . . the full scope of his 

criminal behavior and the risk of diversion it 

created.’’ 81 FR at 8250. The risk of diversion was, 

of course, a consequence of the respondent’s acts, 

which involved pre-signing prescriptions for 

controlled substances which were subsequently 

issued by nurses who were not lawfully authorized 

to prescribe controlled substances and the 

respondent did not see the patients. Id. at 8248–49. 

The ALJ also gave weight to Respondent’s having 

‘‘expressed remorse and accepted responsibility for 

writing those prescriptions during the first three 

weeks of his treatment at Acumen’’ as well as his 

testimony during the second Board hearing. R.D. 55. 

However, whether Respondent accepted 

responsibility for writing the prescriptions during 

his treatment at Acumen is wholly irrelevant. 

Likewise, because the Agency was not a party in the 

State Board’s proceedings, the weight to be given 

to Respondent’s testimony before the Board is 

substantially diminished. What matters is whether 

he accepted responsibility for the misconduct 

alleged and proved in this proceeding. 

55While Respondent professed that he did not 

understand what he was charged with in this 

proceeding, the Show Cause Order was clear on its 

face. Respondent was also represented and if he 

truly did not understand the allegations, he should 

have asked his counsel. 

56While I have noted Respondent’s testimony in 

the State Board proceeding as to why he issued the 

prescriptions, so that there is no lack of clarity for 

future matters, a respondent is required to present 

his evidence in the Agency’s proceeding. 

Respondent maintained that he could 

‘‘absolutely’’ be trusted to not engage in 

such prescribing in the future, that he 

was ‘‘not trying to avoid anything’’ and 

that ‘‘I have done everything that I know 

to do to try to remedy this situation,’’ he 

has not been forthcoming in this matter. 

Thus, I disagree with the ALJ that 

Respondent has ‘‘express[ed] remorse to 

the full extent of [his] wrongful 

conduct.’’ R.D. at 56. 

The ALJ also gave weight to 

Respondent’s testimony during the 

second State Board hearing that he was 

‘‘committed to ‘absolute and complete 

adherence’ to applicable rules and 

regulations,’’ id. at 55 (citing GE 13, at 

9–10), and further asserted ‘‘that his 

commitment to adhere to all regulations 

governing controlled substances is 

genuine.’’ Id. at 56–57. The ALJ did not 

explain how Respondent would 

accomplish this given his repeated 

assertions in this proceeding that he did 

not ‘‘know the specific legalities of DEA 

registration,’’ did not ‘‘know the letter or 

spirit of any law that [he] transgressed,’’ 

that he does not ‘‘know precisely how 

the DEA defines’’ the term ‘‘outside the 

course of professional practice,’’ and ‘‘as 

a physician, [he does not] understand 

[the] term.’’ Tr. 511. 

The ALJ also rejected as only 

‘‘technically correct’’ the Government’s 

argument that Respondent did not 

accept responsibility for failing to 

conduct examinations and/or 

conducting insufficient examinations 

prior to issuing the prescriptions. R.D. 

54–55. While the ALJ found that 

Respondent did not ‘‘specifically 

acknowledge that it was wrong of him 

to issue a prescription without first 

conducting an examination,’’ the ALJ 

faulted the Government for not asking 

this question of Respondent. Id. at 55. 

The ALJ further reasoned that the 

Government ‘‘overlook[ed] the central 

concern of this case, which is that the 

Respondent wrote prescriptions for his 

wife when he should not have.’’ Id. In 

the ALJ’s ‘‘view, the Respondent’s 

acceptance of responsibility for failing 

to examine his wife before writing her 

a prescription is subsumed in his 

general acceptance of responsibility.’’ 

Id. (citing Tr. 515). 

I cannot agree with this reasoning. As 

for the ALJ’s faulting of the Government 

for not asking Respondent if he accepted 

responsibility for his failure to conduct 

examinations or conducting inadequate 

examinations, Respondent, and not the 

Government, had the burden of 

production on this issue. As for the 

ALJ’s assertion that ‘‘the central concern 

of this case . . . is that the Respondent 

wrote prescriptions for his wife when he 

should not have,’’ the central concern of 

this case is what the Government 

alleged in the Show Cause Order and 

proved at the hearing.53 The proof fully 

supported the allegations, which 

included that he issued controlled 

substance prescriptions that ‘‘were 

nontherapeutic, were for other than a 

legitimate medical purpose, and were 

outside the usual course of professional 

practice,’’ that he issued the 

prescriptions when his wife was ‘‘being 

issued prescriptions for the same or 

similar class of drugs by her . . . 

psychiatrist, which [he] did without her 

psychiatrist’s knowledge or 

permission,’’ and that his ‘‘actions 

dramatically increased the chances of 

[his] wife’s dependency, overdose or 

diversion.’’ ALJ Ex. 1, at 1–3 (¶¶ 3–7). 

Moreover, the Government’s allegations 

that Respondent violated state and 

federal law by issuing controlled 

substance prescriptions ‘‘without 

conducting any examination,’’ Id. at 3 (¶ 

8), or ‘‘without conducting sufficient 

examinations,’’ id. (¶ 9), were not 

simply additional factual allegations to 

support the charges in paragraphs three 

to seven of the Show Cause Order but 

were stand-alone charges. 

With respect to the proven 

misconduct, Respondent admitted that 

he acted outside of the usual course of 

professional practice only to the extent 

that he failed to maintain proper 

records. As for the ALJ’s further 

assertion that his acceptance of 

responsibility for failing to conduct 

examinations was ‘‘subsumed in his 

general acceptance of responsibility,’’ 

the cited testimony does not support 

this, as the question, which was asked 

by his counsel, made no reference to his 

failing to conduct examinations. Tr. 515. 

The ALJ acknowledged that ‘‘[i]t is 

true . . . that Respondent did not 

plainly and expressly accept 

responsibility for violating specific 

federal regulations.’’ R.D. 56. Indeed, at 

no point did Respondent admit that he 

violated 21 CFR 1306.04(a) with respect 

to any of the prescriptions, including 

those which clearly were not two to 

three day ‘‘gap fills.’’ Nor did he ever 

admit that any of the prescriptions were 

non-therapeutic or lacked a legitimate 

medical purpose. And he denied that 

his prescribing increased the risks of his 

wife become dependent, overdosing, or 

diverting controlled substances. 

Respondent has therefore failed to 

‘‘express remorse to the full extent of 

[his] wrongful conduct.’’ 54 R.D. 56. 

The ALJ further explained that he 

found Respondent’s remorse to be 

sincere and that his acceptance of 

responsibility was ‘‘credible.’’ R.D. 56– 

57. This case, however, is less about 

Respondent’s credibility (although there 

is ample reason to question it given his 

testimony regarding what he thought he 

had been charged with in this 

proceeding) 55 and more about the 

weight to be given to his testimony. 

Moreover, the ALJ failed to apply the 

Agency’s extensive case law which 

requires that an acceptance of 

responsibility be unequivocal, as well as 

that which requires a full 

acknowledgment of the proven 

misconduct. 

While I appreciate that the ALJ 

closely examined Respondent’s 

testimony both at this hearing and 

before the state board (as have I), I find 

it particularly disturbing that 

Respondent has never offered an 

explanation in any proceeding 56 for the 


ethrower on DSK3G9T082PROD with NOTICES
Federal Register / Vol. 82, No. 206 / Thursday, October 26, 2017 / Notices 49731 

many prescriptions he issued which 

clearly were not for short-term gap fills, 

an issue which is not even discussed in 

the Recommended Decision. Thus, I 

conclude that Respondent does not 

recognize the full extent of his 

misconduct. See MacKay v. DEA, 664 

F.3d 808, 820 (10th Cir. 2011); see also 

Samuel Jackson, 72 FR 23848, 23852 

(2007) (noting a respondent’s burden to 

produce sufficient evidence to assure 

the Administrator that he/she can be 

entrusted with the responsibility carried 

by such a registration’’). 

I therefore find that Respondent has 

failed to produce sufficient evidence to 

support a finding that he accepts 

responsibility for his misconduct. While 

there are cases in which the Agency has 

imposed a sanction less than denial or 

revocation where a respondent has 

failed to meet his burden on acceptance 

of responsibility, those cases have 

involved considerably less egregious 

misconduct than the knowing and 

intentional diversion of controlled 

substances which occurred here. 

Because Respondent engaged in 

egregious misconduct which he has 

failed to fully acknowledge, his 

evidence of remedial measures cannot 

rebut the Government’s prima facie 

showing that his registration ‘‘would be 

inconsistent with the public interest.’’ 

21 U.S.C. 823(f). Accordingly, I will 

deny his application. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) and 28 CFR 0.100(b), 

I order that the application of Lon F. 

Alexander, M.D., for a DEA Certificate 

of Registration as a practitioner, be, and 

it hereby is, denied. This Order is 

effective immediately. 

Dated: October 17, 2017. 

Robert W. Patterson, 

Acting Administrator. 

[FR Doc. 2017–23339 Filed 10–25–17; 8:45 am] 

BILLING CODE 4410–09–P 


ethrower on DSK3G9T082PROD with NOTICES