# Robert Raymond Reppy, D.O.; Decision and Order

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-25229

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** October 3, 2011
- **Citation:** 76 FR 61154

## Text

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 09-50]
Robert Raymond Reppy, D.O.; Decision and Order
On March 31, 2011, Administrative Law Judge (ALJ) Timothy D. Wing issued the attached recommended decision. Neither party filed exceptions to the decision.

Having reviewed the entire record including the parties' briefs, I have decided to adopt the ALJ's recommended ruling, findings of fact, conclusions of law, and recommended order. Accordingly, I will order that Respondent's DEA Certificate of Registration be revoked and that any pending applications be denied.

As the ALJ found, between 2002 and 2006, Respondent wrote thousands of controlled- substance prescriptions (approximately 5000 each year) to patients who sought such drugs as hydrocodone and alprazolam through the internet, most of whom (at least 90 percent) he never physically examined, let alone met. ALJ at 12, 20-21.
1

Respondent wrote the prescriptions based on medical records which were sent to him not by the patients' doctors, but by the patients themselves, and a telephone consultation with the patients.
Id.
at 20-21. As the ALJ found, “Respondent rarely contacted a patient's primary care physician whose records he was reviewing” and had no way of verifying whether the person he prescribed to was the actual person whose record he was reviewing.
Id.
at 21.

1
All citations to the ALJ's decision are to the slip opinion as originally issued.

Respondent maintains that in 2002, when he agreed to write the prescriptions, the legality of prescribing controlled substances via the internet was “a gray area” and that the standards were not the same “as are agreed upon now.” Tr. 64. Respondent further claims that he did his “due diligence,” which included doing “a little research on [his] own,” with the result being that he “couldn't find anybody saying * * * for definite that you cannot do this” and that he was even shown a letter from “DEA giving permission to do it.”
Id.
at 60. Respondent was shown this letter by an attorney, Mr. Robert Carr, who happened to be the founder and President of United Prescription Services, a Tampa, Florida-based pharmacy which was to fill most of the prescriptions Respondent issued; Respondent knew that Carr had a financial interest in United Prescription Services.
Id.
at 60-61, 151.

As for Respondent's assertion that he was unable to find “anybody” definitely saying that it was illegal to prescribe controlled substances over the internet to persons he never examined, this may be consistent with his claim that he did “
little
research.” However, it clearly was not the case, as even by 2002, multiple States had enacted statutes, promulgated rules, or published policy statements to the effect that prescribing drugs in this manner was illegal. Moreover, as explained below, it was clearly unreasonable for Respondent to rely on Carr's purported advice.

In 2000, California enacted a provision which prohibits the prescribing or dispensing of a dangerous drug “on the Internet for delivery to any person in this state, without an appropriate prior examination and medical indication therefore.” Cal. Bus. & Prof. Code § 2242.1. Moreover, as early as November 2001, the Medical Board of California (MBC) issued a citation order to an out-of-state physician for prescribing over the Internet to California residents.
See
Citation Order, Carlos Gustav Levy (Nov. 30, 2001). The MBC cited
both
the physician's failure to conduct “a good faith prior examination,” as well as his lack of “a valid California Physician and Surgeon's License to practice medicine in California.”
Id.
at 1. The Board further ordered Doctor Levy “to cease and desist from Internet prescribing to individuals in California without first performing a good faith prior examination, without having medical indication to prescribe such medication and without having a California Physician and Surgeon's License,” and fined him $25,000.
Id.
at 1-2.
See also
Citation Order, Martin P. Feldman (Aug. 15, 2003);
see also
Citation Order, Harry Hoff (June 17, 2003); Citation Order, Carlos Gustavo Levy (Jan. 28, 2003).

In addition, in January 2003 (and prior to much of Respondent's prescribing activity which continued until October 2006), the MBC revoked a physician's medical license when he engaged in practices similar to those of Respondent.
See In re Steven Opsahl, M.D.,
Decision and Order, at 3 (Med. Bd. Cal. 2003) (available by query at
http://publicdocs.mbc.ca.gov/pdl/mbc.aspx).

In
Opsahl,
the MBC held that “[b]efore prescribing a dangerous drug, a physical examination must be performed” and that a physician “cannot do a good faith prior examination based on a history, a review of medical records, responses to a questionnaire, and a telephone consultation with the patient, without a physical examination of the patient.”
Id.
The MBC also held that a “medical indication” is determined only after the taking of a history, the conducting of a physical examination, and an assessment of “the patient's condition.”
Id.
The MBC further explained that “[a] physician cannot determine whether there is a medical indication for prescription of a dangerous drug without performing a physical examination.”
Id.

In April 2001, Ohio enacted a statute which defines “telemedicine” as “the practice of medicine in this state through the use of any communication, including oral, written, or electronic communication, by a physician outside th[e] state” and also requires that a physician obtain a “telemedicine certificate” to lawfully prescribe within the State,
id.
§ 4731.296 (effective 4-10-01), and a “special activity certificate.”
Id.
§ 4731.294 (effective 4-10-01). Moreover, in 2002, Ohio adopted a regulation which, except for in circumstances not at issue here, prohibits the dispensing of controlled substances “to a person who the physician has never personally examined and diagnosed.” Ohio Admin. Code § 4731-11-09(A).

In 2002, Tennessee law prohibited (as it still does) the practice of medicine within the State without a license issued by the State. Tenn. Code Ann. § 63-6-201(a) (2002);
see also id.
§ 63-6-204 (2002) (defining “a person [who is] regarded as practicing medicine” as one “who treats, or professes to diagnose, treat, operate[] on or prescribes for any physical ailment or any physical injury to or deformity of another”). Like Ohio, Tennessee also provides for “restricted licenses and special licenses based upon licensure to another state for the limited purpose of authorizing the practice of telemedicine.”
Id.
§ 63-6-209(b) (1996).
See also
Tennessee Board of Medical Examiners,
Position Statement: Prerequisites to Prescribing or Dispensing Drugs-In Person, Electronically or Over the Internet
(Sept. 2000) (“[I]t shall be a prima facie violation of [State law] for a physician to prescribe or dispense any drug to any individual, whether in person or by electronic means or over the Internet or over telephone lines, unless the physician has first done and appropriately documents, for the person to whom a prescription is to be issued or drugs dispensed, all of the following: (a) Performed an appropriate history and physical examination * * * ”).
2

2
This statement likewise recognizes three situations in which a drug may be prescribed

without the physician having performed a physical examination of the patient: (1) In admission orders for new admitted hospital patients, (2) when covering for another physician, and (3) on a short-term basis for a new patients prior to the patient's first appointment. None of these applied to Respondent's internet practice.

Prior to Respondent's prescribing activity, Tennessee had also promulgated a regulation which provided clear notice that, before issuing a prescription for a controlled substance “by electronic means or over the Internet or over telephone lines,” a physician must “[p]erform[] an appropriate history and medical examination,” “[m]a[k]e a diagnosis based upon the examinations and all diagnostic and laboratory tests consistent with good medical care,” “[f]ormulate[] a therapeutic plan,” and “[i]nsure[] availability of the physician or coverage for the patient for appropriate follow-up care.” Tenn. Comp. R. & Regs. 0880-2-14.(7)(a) (2002).

In April 2000, the Alabama State Board of Medical Examiners promulgated its “Contact with Patients before Prescribing” rule. The rule states the Board's position:

that prescribing drugs to an individual the prescriber has not personally examined is usually inappropriate. Before prescribing a drug, the physician should make an informed medical judgment based on the circumstances of the situation and on his or her training and experience. Ordinarily, this will require that the physician perform an appropriate history and physical examination, make a diagnosis, and formulate a therapeutic plan, a part of which might be a prescription.

Ala. Admin Code r.540-X-9.11(1). While the Alabama rule also recognizes that in certain situations a prescribing physician is not required to have performed a physical exam of the patient (such as admission orders for a newly admitted patient, where the prescriber is taking call for another physician, and where the prescriber continues medication “on a short-term basis for a new patient prior to the patient's first appointment”), none of these exceptions applied to Respondent's internet prescribing.
Id.
r.540-X-9.11(2).

In February 2002, the Georgia Composite State Board of Medical Examiners amended its regulation defining “Unprofessional Conduct” to include “[p]roviding treatment and/or consultation recommendations via electronic or other means unless the licensee has performed a history and physical examination of the patient adequate to establish differential diagnoses and identify underlying conditions and/or contra-indications to the treatment recommended.” Ga. Comp. R. & Regs. 360-3-.02 (2002). While the regulation provided an exception in the case of a licensee who is on call or covering for another doctor, the exception did not apply to Respondent's internet prescribing.
See also
S.C. Code Reg. 81-28(A) (effective May 25, 2001) (requiring prescribing physician to “[p]ersonally perform an appropriate history and physical examination”).

In addition, prior to Respondent's commencement of internet prescribing, numerous state boards had issued policy statements which made clear that this activity was unprofessional conduct and illegal. For example, in November 1999, the North Carolina Medical Board issued a position statement entitled “Contact With Patients Before Prescribing” (available at
http://www.ncmedboard.org/position_statements/detail/contact_with_patients_before_prescribing/
). Therein, the Board stated “that prescribing drugs to an individual the prescriber has not personally examined is inappropriate” except in the case of admission orders for newly hospitalized patients, taking call for another physician, and on short-term basis prior to a patient's first appointment. The Board further explained that “[o]rdinarily, this will require that the physician perform an appropriate history and physical examination, make a diagnosis, and formulate a therapeutic plan, part of which might be a prescription.”

In December 1999, the Texas State Board of Medical Examiners issued its Internet Prescribing Policy. This Policy stated that “[i]t is unprofessional conduct for a physician to initially prescribe any dangerous drugs or controlled substances without first establishing a proper physician-patient relationship.” Texas State Board of Medical Examiners,
Internet Prescribing Policy
(available at
http://www.tmb.state.tx.us/rules/guidelines/ipp.php
). The Policy further explained that “at a minimum,” this requires,
inter alia,
“verifying that the person requesting the medication is in fact who they claim to be,” and “establishing a diagnosis through the use of accepted medical practices such as a patient history, mental status exam, physical examination and appropriate diagnostic and laboratory testing.”
Id.

In May 2000, the Louisiana State Board of Medical Examiners issued a Statement of Position on Internet/Telephonic Prescribing, which stated “the Board's view, [that] it is unlawful for a physician to prescribe medication, treatment or a plan of care generally if the physician has not examined the patient and established a diagnostic basis for such therapy.” Louisiana State Board of Medical Examiners,
Statement of Position on Internet/Telephonic Prescribing,
at 2 (available at
http://www.lsbme.la.gov/Statements%20of%20position.html
). The Board further explained that:

A physician establishes a physician-patient relationship by:

• Verifying that the person requesting the medication is in fact who they claim to be;

• Conducting an appropriate examination of the patient;

• Establishing a diagnosis through the use of accepted medical practices,
i.e.,
a patient history, mental status, examination, physical examination and appropriate diagnostic and laboratory testing;

• Discussing with the patient the diagnosis, risks and benefits of various treatment options; and

• Insuring the availability for appropriate follow-up care.

Id.
at 2. The Louisiana Board further stated that “[a]s a matter of law, to be valid, effective and lawful, each prescription or order for medication must be issued or given by an authorized practitioner (
i.e.,
a Louisiana licensed physician) with respect to an individually identified patient, based on the practitioner's examination and diagnosis of the patient.”
Id.
at 3. Finally, the Board explained that:

because the [State's] Medical Practice Act restricts the practice of medicine to persons possessing a license issued by [it,] [a]n individual who issues a prescription or orders medication for an individual who is a resident of or located in Louisiana, who does not possess a Louisiana medical license or other authorization to practice medicine in this state, is necessarily engaged in the unauthorized practice of medicine in contravention of the Medical Practice Act.

Id.

Moreover, in November 2000, the Oklahoma State Board of Medical Licensure and Supervision adopted its Policy on Internet Prescribing. The Oklahoma Board adopted most of the same standards as the Louisiana statement, including that “at a minimum,” a physician must verify the identity of a patient requesting medication and “establish[] a diagnosis through the use of accepted medical practices such as a patient history, mental status exam, physical examinations and appropriate diagnostic and laboratory testing by the prescribing physician.” Oklahoma State Board of Medical Licensure and Supervision,
Policy on Internet Prescribing
(available at

http://www.

okmedicalboard.org/download/308/precribing+on+the+Internet.htm

). The Oklahoma Board also stated that “[c]omplete management of a patient by Internet, e-mail, or other forms of electronic communications is inappropriate.”
Id.; see also
Washington Medical Quality Assurance Commission,
Position on Internet Prescribing
(Winter 2001) (available at
http://www.doh.wa.gov/hsqa/mqac/policies.htm
) (“The standard of medical practice in the state of Washington requires a physician, when prescribing medication to [
inter alia,
] verify that the person requesting the medication is in fact who he or she claims to be,” and “establish a diagnosis through the use of accepted medical practices such as a patient interview, physical examination, and appropriate ancillary testing.”).

To similar effect, in May 2000, the Mississippi State Board of Medical Licensure issued a policy statement on Internet Prescribing. The Mississippi policy stated that the “[e]ssential components of proper prescribing and legitimate medical practice require that the physician obtains a thorough medical history and conducts an appropriate physical examination before prescribing any medication for the first time.” Mississippi State Board of Medical Licensure,
Internet Prescribing
(available at
http://www.msbml.state.ms.us/regulations/2004%20policy%20book.pdf
). While the Mississippi Board recognized exceptions for admission orders for newly hospitalized patients, cross-coverage situations, and for short-term prescribing prior to a new patient's first appointment, as noted previously, none of these situations applied to Respondent's internet prescribing.

In December 2001, the Massachusetts State Board of Registration in Medicine amended its Prescribing Practices Policy and Guidelines to address the subject of Internet Prescriptions. The Board stated that “a prescription to be legally valid must be issued within the context of a physician-patient relationship under circumstances in which the physician has conformed to certain minimum norms and standards for the care of patients, such as taking an adequate medical history and conducting an appropriate physical examination.” Massachusetts State Board of Registration in Medicine,
Prescribing Practices Policy and Guidelines, Internet Prescriptions
(available at
http://www.mass.gov/Eeohhs2/docs/borim/policies_guidelines/policy_03_06.pdf
).
3

The Board further advised that “[p]rescribing over the internet while deviating from these requirements is therefore unlawful.”
4

3
The Board subsequently amended its policy on December 17, 2003; the amended policy did not change the requirement that the prescribing physician must “conduct[] an appropriate physical” examination. It further stated that “[i]ssuance of a prescription, by any means, including the Internet or other electronic process, that does not meet these requirements is therefore unlawful.”

4
Other States adopted similar statutes, rules and/or policy statements on Internet prescribing within the next several years and well before Respondent ceased his internet prescribing.
See
Colorado Board of Medical Examiners,
Policy 40-9: Guidelines Regarding Prescribing for Unknown Patients
(Nov. 16, 2003) (available at
http://www.dora.state.co.us/medical/policies/40-09.pdf
) ; Ind. Admin Code 5-41 (Oct. 2003) (“Except in institutional settings, on-call situations, cross-coverage situations, and situations involving advanced practice nurses with prescriptive authority * * * a physician shall not prescribe, dispense, or otherwise provide, or cause to be provided, any controlled substance to a person who the physician has never personally physically examined and diagnosed.”); New York State Board for Professional Medical Conduct,
Statements on Telemedicine
(Dec. 24, 2003) (available at
http://www.health.ny.gov/professionals/doctors/conduct/telemedicine.htm.
) (“All the current standards of care regarding the practice of medicine apply. The fact that an electronic medium is utilized for contact between parties or as a substitute for face-to-face consultation does not change the standards of care.”). While these provisions were adopted after Respondent commenced his Internet prescribing, Respondent had a continuing obligation to keep track of the law as it changed.

In addition, as early as June 2001, DEA had revoked the registration of a physician whose state controlled substance registration and medical licenses had been suspended for prescribing over the Internet. See
Rick Joe Nelson,
66 FR 30752 (2001). This same physician was ultimately indicted for conspiracy to distribute controlled substances outside of the usual course of professional practice, 21 U.S.C. 846, and convicted.
See United States
v.
Nelson,
383 F.3d 1227 (10th Cir. 2004). Of note, his conviction was affirmed (in a published decision) on September 20, 2004, more than two years before Respondent left the clinic.
See also Mark Wade,
69 FR 7018, 7021 (Feb. 12, 2004) (revoking registration of Internet prescriber and noting physician had pled guilty to violation of 21 U.S.C. 846).

At the instant hearing, Respondent did not testify as to any state laws or Board positions (with the exception of Florida) he found which authorized prescribing to patients he would not meet, based on a review of records and a telephone consultation. Instead, he maintained that “as part of [his] due diligence” in deciding whether to engage in Internet prescribing, he reviewed the Model Guidelines for the Appropriate Use of the Internet in Medical Practice (RX 9), a policy document issued by the Federation of State Medical Boards of the United States (FSMB). Tr. 76-77. Respondent testified that this document gave him the impression that Attorney Carr's advice that Internet prescribing was legal was accurate “because it specifically says the physician/patient relationships exists whether or not there has been a personal encounter between the physician and the patient,” and that this was “[b]lack and white.”

The fact that a physician-relationship “is clearly established when a physician agrees to undertake diagnosis and treatment,” RX 9, at 7, however, does not mean that a physician has established an adequate physician-patient relationship sufficient to support the diagnosis of a patient and the issuance of a prescription. Indeed, the Guidelines further state that “[t]reatment and consultation recommendations made in an online setting, including issuing a prescription via electronic means, will be held to the same standards of appropriate practice as those in traditional (face-to-face) settings.”
Id.
at 8. At the hearing, Respondent offered no explanation as to what he thought this statement meant.

Just one page later, the Guidelines further state that “[p]hysicians who treat or prescribe through Internet Web sites are practicing medicine and must possess appropriate licensure in all jurisdictions where patients reside.”
Id.
at 9. Respondent admitted that during the period of his internet prescribing, he was licensed only in the State of Florida. Respondent thus engaged in the unauthorized practice of medicine in numerous States. As the California Court of Appeals has explained, the “proscription of the unlicensed practice of medicine is neither an obscure nor an unusual state prohibition of which ignorance can reasonably be claimed, and certainly not by persons * * * who are licensed health care providers. Nor can such persons reasonably claim ignorance of the fact that authorization of a prescription pharmaceutical constitutes the practice of medicine.”
Hageseth
v.
Superior Court,
59 Cal. Rptr.3d 385, 403 (Ct. App. 2007).

Respondent's assertion that he relied on the FSMB Guidelines and yet “couldn't find anybody saying * * * for definite that you cannot do this,” Tr. 60, is especially remarkable given that the Guidelines included a list of References. RX 9, at 11. Among the authorities cited therein are the position/policy statements of the Boards of Louisiana, New York, North Carolina, Oklahoma, South Carolina, Texas and Washington State, each of which—as discussed above—provided ample notice that each of these Board's considered internet prescribing to violate the accepted standards of professional practice.
5

In

short, Respondent's assertion that he did “a little research” is an accurate statement only to the extent that emphasis is placed on the word “little.”

5
In April 2001, DEA published a Guidance Document entitled
Dispensing and Purchasing Controlled Substances over the Internet,
66 FR 21181 (2001). The Guidance explained that “[o]nly practitioners acting in the usual course of their professional practice may prescribe controlled substances. These practitioners

must be registered

with DEA and licensed to prescribe controlled substances by the State(s) in which they operate.

” Id. at 21181 (emphasis added).

In addition, the Guidance Document specifically stated that “Federal law requires that ‘[a] prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.’ ”
Id.
at 21182 (quoting 21 CFR 1306.04(a)). The Guidance explained that “[e]very state separately imposes the same requirement under its laws” and that “[u]nder Federal and state law, for a doctor to be acting in the usual course of professional practice, there must be a bona fide doctor/patient relationship.”
Id.

Continuing, the Guidance explained that “[f]or purposes of state law, many state authorities, with the endorsement of medical societies, consider the existence of the following four elements as an indication that a legitimate doctor/patient relationship has been established:

A patient has a medical complaint;

A medical history has been taken;

A physical examination has been performed; and

Some logical connection exists between the medical complaint, the medical history, the physical examination, and the drug prescribed.

Id.
at 21182-83.

The Guidance further stated that “[c]ompleting a questionnaire that is then reviewed by a doctor hired by the internet pharmacy could not be considered the basis for a doctor/patient relationship.”
Id.
at 21183.

While the DEA Guidance Document does not have the force and effect of law, it nonetheless provided an additional source of information as to the potential illegality of Respondent's Internet prescribing.

Respondent also asserts that a February 27, 2002 letter from the Chief of the DEA's Office of Diversion Control's Liaison and Policy Section to Carr, “g[ave] permission to do it.” Tr. 60;
see also
RX 4. According to Respondent, Carr showed him the letter which “seemed very convincing” and that the letter “basically said they [DEA] were okay with it.” Tr. 90-91.

While the letter stated “[i]t appears that the submitted policies and procedures meet the federal requirements regarding controlled substances prescriptions,” it further noted that the pharmacy had represented that under its policies, it “plans to verify the authenticity and legal authority to prescribe of each prescriber.” RX 4, at 1. More specifically, the letter noted that “[m]anagement personnel will verify several elements including, but not limited to * * * [p]rofessional licensure, DEA registration,
[l]egitimate patient/prescriber relationship, [p]rescriptions are issued in the usual course of professional practice, and [p]rescriptions are issued for a legitimate medical purpose.
” Id. (emphasis added). Continuing, the letter noted “valid controlled substance prescriptions must be issued for a legitimate medical purpose,” and that “this is usually defined and interpreted by the prescriber's respective state professional

licensing board.”
6

Id.

6
As explained above, this was not an entirely accurate statement of the law with regards a physician's prescribing to patients who reside in a different State. As the Model Guidelines explained, most (if not all) States deem prescribing to a resident to be practicing medicine within the State, and thus, a physician doing so is subject to both the licensing and medical practice standards of the patient's State and the physician's State.
See
RX 9, at 9;
see also
discussion above.

However, Respondent produced no evidence showing that Carr, in requesting DEA's review of its policies, disclosed to the Agency that the doctors whose prescriptions it filled would be practicing medicine across state lines.
See
RX 3. Moreover, even if Respondent relied on the Florida Telemedicine Regulation, and even conceding that the regulation did not clearly state on its face that the prescriber (as opposed to another doctor) must perform a physical exam,
see
Fla. Admin. Code r.64B15-14.008(2), having claimed to have reviewed the Model Guidelines (and having previously been licensed in other States), Respondent cannot credibly claim ignorance of the fact that the regulation of the practice of medicine is a state function and that each State has its own Board and set of rules with which he was required to comply.
See, e.g., Hageseth,
59 Cal.Rptr.3d, at 403.

Thus, contrary to Respondent's claim, the DEA letter did nothing more than address the lawfulness of the pharmacy's dispensing of prescriptions and did so based on Carr's representation that the underlying prescriptions would be lawfully issued. The letter thus provides no comfort to Respondent.

As for his reliance on Carr's purported legal advice, Respondent stated that he “assumed the lawyer would give me his honest opinion and expertise and I wouldn't have to go around consulting three or four of them to get the same thing.” Tr. 60-61. Yet Respondent acknowledged that he knew Carr had a financial interest in the pharmacy.
Id.
at 61. Given Carr's financial interest, and even assuming (without deciding) that Carr and Respondent entered into an attorney-client relationship, Respondent had ample reason to question whether Carr was capable of providing disinterested legal advice.
Id.
at 60-61. Moreover, Carr's advice was fundamentally at odds with various statements contained in the Model Guidelines, a document which Respondent purportedly read, including the statements that: (1) “[t]reatment and consultation recommendations made in an online setting, including issuing a prescription via electronic means, will be held to the same standards of appropriate practice as those in traditional (face-to-face) settings”; and (2) “[p]hysicians who treat or prescribe through Internet Web sites are practicing medicine and must possess appropriate licensure in all jurisdictions where patients reside.” RX 9, at 8-9. Thus, because it is clear that Respondent did not reasonably rely on Carr's advice, this is not a mitigating factor.

Finally, Respondent asserts that his cooperation in the proceeding involving
United Prescription Services, Inc.,
72 FR 50397 (2007), should be considered as a factor in mitigation. Resp. Br. 25. The Government did not dispute that Respondent provided testimony and an affidavit in that matter that was of some benefit to the Government. Tr. 78.

That being said, I conclude that Respondent's cooperation is substantially outweighed by the extensive and egregious misconduct he committed. As the ALJ found, with the exception of a period of several months during which he was on a leave of absence,
see
GX 10, at 85; for more than four years, Respondent wrote thousands of controlled substances prescriptions outside of the usual course of professional practice and which lacked a legitimate medical purpose. ALJ at 54, 60;
see also
21 CFR 1306.04(a).

While this is reason alone to reject's Respondent cooperation as a mitigating factor, in addition, the ALJ also found that Respondent flagrantly failed to supervise a Physician Assistant, who wrote thousands of controlled substance prescriptions under his registration. ALJ at 65. As the ALJ found, the PA wrote 14,000 prescriptions, many of which were for controlled substances, during the period in which Respondent was on leave of absence.
Id.
Upon his return in March 2004, Respondent discovered that the PA had written some controlled substance prescriptions in his name, Tr. 38, 139; a violation of both state and federal law.
See
Fla. Sta. Ann. § 459.022(4)(e) (prohibiting PAs from prescribing controlled substances); 21 U.S.C. 843(a)(2) (prohibiting dispensing of a controlled substance by use of a registration number “issued to another person”);
id.
§ 822(a)(2) (requiring “[e]very person who dispenses” to obtain a registration).

The evidence showed that Respondent was upset that the PA was writing prescriptions under his registration without complying with his instructions and could not be controlled. Tr. 139. Respondent complained to the clinic's owner “about [the PA's] prescribing patterns using [his] DEA registration,” RX 12, at 4; and asked him to fire the PA several times; however, the clinic's owner refused to

do so.
7

Tr. 37-38;
see
GX 10, at 106. Nonetheless, Respondent continued to work for the clinic and did so for more than another year. Notwithstanding Respondent's professed concern that the PA “was being pretty arrogant [and] doing a lot of things on his own,” Tr. 121, and his awareness of the PA's prescribing irregularities, RX 12, at 4; Respondent offered no evidence that he had reported the PA to either law enforcement or regulatory authorities. This provides an additional reason to reject Respondent's cooperation as a ground for mitigating the sanction.

7
In an affidavit given in the
United Prescription Services
proceeding, Respondent stated that the clinic owner removed the PA from the clinic. RX 12, at 4. However, in both the
united
and instant proceedings, Respondent testified that the clinic owner “would never fire [the PA], no matter how many times I requested it.” GX 10, at 106; Tr. 37. Respondent also testified the PA “was kept away from me,” TR.101, and that the PA would frequently work from home.

In conclusion, the record here establishes that over the course of more than four years, Respondent was responsible for the issuance of thousands of illegal controlled-substance prescriptions. Respondent's misconduct was egregious, and the Agency's interest in deterring similar misconduct on the part of others provides ample justification to support the ALJ's recommended order.
See Joseph Gaudio,
74 FR 10083, 10094 (2009);
Southwood Pharmaceuticals, Inc.,
72 FR 36487, 36504 (2007) (citing
Butz
v.
Glover Livestock Commission Co., Inc.,
411 U.S. 182, 187-88 (1973)).

Moreover, as the ALJ explained, while at the hearing, Respondent occasionally acknowledged some wrongdoing, most of his testimony was then spent on blaming others or offering absurd or disingenuous justifications for his egregious misconduct.
See
ALJ at 65 (discussing verification of internet customers' identities—“I'm relying on the state that issued their driver's license attesting their identity. If the state did not adequately check their identity before issuing them a driver's license, then * * * I had no way of determining that. * * * I used the same method of checking their identity' as I would if they were present in front of me.”).
See also id.
at 66-67 (finding that “rather than admit that * * * his telemedicine practices were in clear violation of contemporaneous standards * * * Respondent * * * attempted to cast doubt on the clarity of the rules.”);
id.
at 68 (comparing Respondent's testimony that he was “sorry” for the prescriptions but then stating that “if I thought I was doing anything wrong, I wouldn't have done it”);
id.
(stating that he was remorseful, but adding “I sincerely wish I had never been duped into being any part of their operation at all”).

In sum, as the ALJ found, Respondent “fail[ed] to sustain his burden to credibly accept responsibility for his misconduct and demonstrate that he will not engage in future misconduct.” ALJ at 71. Accordingly, I will adopt the ALJ's recommended sanction.

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 824(a)(4), as well as by 28 CFR 0.100(b), I order that DEA Certificate of Registration BR5287342, issued to Robert Raymond Reppy, D.O., be, and it hereby is, revoked. I further order that any application for renewal or modification of such registration be, and it hereby is, denied. This Order is effective November 2, 2011.

Dated: September 19, 2011.
Michele M. Leonhart,
Administrator.

D. Linden Barber, Esq.,
for the Government.

A.S. Weekley, Jr., M.D., Esq.,
for Respondent.

Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of the Administrative Law Judge

I. Introduction

Timothy D. Wing, Administrative Law Judge. This proceeding is an adjudication pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 551
et seq.,
to determine whether the drug enforcement administration (DEA) should revoke a physician's certificate of registration (COR) as a practitioner and deny any pending applications for renewal or modification of that registration. Without this registration the practitioner Robert Raymond Reppy, D.O. (Respondent or Dr. Reppy), of Tampa, Florida, will be unable to lawfully prescribe, dispense or otherwise handle controlled substances in the course of his practice.

On April 28, 2009, the DEA Deputy Assistant Administrator, Office of Diversion Control, issued an Order to Show Cause (OSC) to Respondent, giving Respondent notice of an opportunity to show cause why the DEA should not revoke Respondent's DEA COR BR5287342 pursuant to 21 U.S.C. 824(a)(4), and deny any pending applications for renewal or modification pursuant to 21 U.S.C. 823(f), on the grounds that Respondent's continued registration would be inconsistent with the public interest as that term is used in 21 U.S.C. 824(a)(4) and 823(f).

In substance, the OSC alleges as follows:

1. Respondent has a DEA COR scheduled to expire by its own terms on April 30, 2009;

2. Respondent issued prescriptions to Internet customers from early 2004 until October 2006;

3. Respondent allowed a physician's assistant (PA) to use Respondent's COR to issue purported prescriptions to Internet customers, in violation of 21 U.S.C. 846 and Fla. Stat. Ann. § 458.347 (2008);

4. The above-referenced prescriptions were issued without a legitimate medical purpose and outside the usual course of professional practice, in violation of 21 CFR 1306.04(a) and 21 U.S.C. 841(a)(1);

5. Respondent issued purported prescriptions of controlled substances to customers throughout the United States even though Respondent is licensed to practice medicine only in Florida;

6. The above-referenced prescriptions violated state laws prohibiting the unauthorized practice of medicine, including unlicensed, out-of-state physicians issuing controlled substance prescriptions to state residents.
See e.g.,
Miss. Code Ann. § 73-25-34; Cal. Bus. & Prof. Code § 2052; Ala. Code § 34-24-51; and

7. Respondent violated Florida law and regulations prohibiting licensed physicians from issuing controlled substance prescriptions in excessive or inappropriate quantities, from issuing prescriptions via the Internet without documented patient evaluation and without discussing treatment options with patients. Fla. Stat. Ann. § 458.331(q); Fla. Admin. Code Ann. r. 64B8-9.014.

On May 26, 2009, Respondent, through counsel, requested a hearing on the allegations in the OSC.
8

Following prehearing procedures,
9

a hearing was held on November 16, 2010, in Bradenton, Florida, with both the Government and Respondent represented by counsel. Both parties called witnesses to testify and introduced documentary evidence. After the hearing, both parties filed proposed findings of fact, conclusions of law and argument. All of the evidence and post-hearing submissions have been considered, and to the extent the parties' proposed findings of fact have

been adopted, they are substantively incorporated into those set forth below.

8
Respondent submitted an application to renew his COR on April 6, 2009. (ALJ Ex. 3 at 1.)

9
This case was originally assigned to Administrative Law Judge Mary Ellen Bittner. (
See, e.g.,
OPHS May 27, 2009.) On January 15, 2010, Administrative Law Judge Gail A. Randall was assigned to the case. (Mem. Jan. 15, 2010.) Judge Randall reassigned the case to me on July 19, 2010. (Mem. Jul. 19, 2010.)

II. Preliminary Evidentiary Issues

Prior to discussing the evidence and reaching the substantive issues in this case, a threshold evidentiary issue is the weight to be given, if any, to (1) the Deputy Administrator's conclusions of law regarding Dr. Reppy's compliance with state law contained in
United Prescription Services, Inc.,
72 FR 50,397 (DEA 2007), a separate proceeding in which Dr. Reppy was a witness but not a party; (2) a transcript of Dr. Reppy's sworn testimony in that case, admitted without objection as Government Exhibit 10 in the present proceeding; and (3) affidavits of Respondent's current employees and patients offered as Respondent's Exhibit 19, and an affidavit of Respondent offered as Respondent's Exhibit 13.

A. The 2007 Final Order in United Prescription Services, Inc.

On August 23, 2007, the
Federal Register

published a final order in
United Prescription Services, Inc.,
72 FR 50,397 (DEA 2007). Therein, the then-Deputy Administrator made legal conclusions touching upon the conduct of Dr. Reppy, who testified in that case but was not named as a party. The Deputy Administrator found that “Dr. Reppy violated the laws of California, Tennessee, Indiana, and Louisiana” because “[e]ven if Dr. Reppy's * * * conduct established a valid doctor-patient relationship under Florida law (a dubious proposition at that), [he] violated the laws of other States which clearly require that the prescriber personally perform the physical exam except in limited situations not applicable here.”
United Prescription Servs.,
72 FR at 50,408 (internal citations omitted). The Deputy Administrator also concluded that Dr. Reppy's PA, Mr. Protheroe, “used Dr. Reppy's DEA registration while Reppy was on leave of absence and not supervising him * * *. These prescriptions violated the State of Florida's regulations” regarding Dr. Reppy's delegation of authority to a PA.
10

Id.
at 50,409.

10
Specifically,
United Prescription Services
cites Fla. Admin. Code Ann. r. 64B8-30.008(2).
See
72 FR at 50,409. As discussed below, that rule is inapplicable to Dr. Reppy because he is an osteopathic physician; the applicable rule (which is textually identical) is r. 64B15-6.0038.
Infra
text following note 63.

In the “proposed conclusions of law” section of the Government's post-hearing brief in the present case, the Government cites a number of such conclusions by the Deputy Administrator, apparently arguing that I should give weight to those conclusions here. (
See
Gov't Br. 5-6 (discussing Factors Two and Four of 21 U.S.C. 823(f)).)

At issue, therefore, is whether legal conclusions from a prior proceeding relating to the conduct of a non-party witness should be given weight or controlling effect in a subsequent proceeding against the witness. I note at the outset that Dr. Reppy was not named as a party in
United Prescription Services,
had not yet had any adverse action taken against him by the DEA with respect to his COR (
see
Gov't Ex. 10 at 61), and was apparently unrepresented by counsel at the time.

The APA provides that “[t]he transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision” in this administrative proceeding. 5 U.S.C. 556(e). The APA further defines “party” to include a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party * * *.” 5 U.S.C. 551(3),
amended by
Public Law 111-350, Jan. 4, 2011, 124 Stat. 3677 (no relevant changes) (“party[] in an agency proceeding”). In the instant case, the final Agency decision in
United Prescription Services
cannot serve as substantial evidence because it is not part of the “exclusive record for decision” to which Dr. Reppy was a party.
11

I therefore find that the APA precludes me from considering the individualized legal conclusions on the ultimate issues
12

regarding Dr. Reppy contained in
United Prescription Services
as a potential basis for imposing a sanction in this case.
13

See id.
§ 556(e).

11
Although the Government offered the
United Prescription Services
decision as an exhibit in its January 19, 2010 supplemental prehearing statement (Gov't Supp. PHS at 5), it withdrew the exhibit at hearing (
see
Tr. 6-7).

12
As used herein, “ultimate issues,” also called “mixed questions of law and fact” and “deep issues,” are distinguishable from precedential holdings of general applicability.

13
I do not suggest that
United Prescription Services
is without binding effect as Agency precedent with respect to its holdings of general applicability.
See, e.g., supra
Section VI(C)(c) (citing
United Prescription Services
for the proposition that state law controls the question of whether a doctor-patient relationship exists).

I further find that the doctrine of
res judicata,
or collateral estoppel, provides no basis for adopting without analysis the Deputy Administrator's findings in
United Prescription Services
that Dr. Reppy violated state law. Under the doctrine of
res judicata,
(1) a final judgment (2) on the merits (3) between the parties is binding on the parties in subsequent litigation.
See, e.g.,
Restatement (Second) of Judgments § 24; Black's Law Dictionary (9th Ed.) (res judicata).
14

Agency precedent has acknowledged the Supreme Court's recognition of the applicability of the
res judicata
doctrine in DEA administrative proceedings.
Christopher Henry Lister, P.A.,
75 FR 28,068, 28,069 (DEA 2010) (citing
Univ. of Tenn.
v.
Elliot,
478 U.S. 788, 797-98 (1986) (“When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply
res judicata
* * *”)).

14

Accord, e.g., Ritch
v.
State,
14 So.3d 1104, 1107 n.5 (Fla. App. 1 Dist. 2009) (“Collateral estoppel bars relitigation of an issue only when (1) an identical issue was presented in the prior proceeding; (2) the issue was a critical and necessary part of the prior determination; (3) there was a full and fair opportunity to litigate that issue; (4) the parties in the two proceedings are identical; and (5) the issue was actually litigated.”).

It is conceded that the Deputy Administrator's conclusions in
United Prescription Services
concerning Dr. Reppy's compliance with state law, including the extent of his supervision of his PA, went to the merits of that decision, and that the decision constituted the Agency's final order. However, Dr. Reppy was not a party to that proceeding.
See
5 U.S.C. 551(3),
amended by
Public Law 111-350, Jan. 4, 2011, 124 Stat. 3677 (no relevant changes) (the term “`party' includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party”). Indeed, as the United States Court of Appeals for the Fifth Circuit found before that Circuit split into the Fifth and Eleventh Circuits, “the offensive use of collateral estoppel calls for the courts to use special care in examining the circumstances to ascertain that the defendant has in fact had a full and fair opportunity to litigate and that preclusion will not lead to unjust results.”
15

Johnson
v.
United States,
576 F.2d 606, 614 (5th Cir. 1978). After carefully examining the circumstances, I conclude that when the Agency issued the final order in
United Prescription Services,
Dr. Reppy had not been afforded a full and fair opportunity to litigate whether he violated the laws of California, Tennessee, Indiana, Louisiana and Florida.
Res judicata
is therefore inapplicable.
See East Main Street Pharmacy,
75 FR 66,149, 66,154

n.24 (DEA 2010) (“While I previously found [in a prior decision that a patient] had died of multiple drug intoxication and had both oxycodone and alprazolam in her system, Respondent was not a party to that proceeding. The Government was thus required to prove this fact anew * * *.” (internal citations omitted)).

15
In
Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the United States Court of Appeals for the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

For the foregoing reasons, I find that the Deputy Administrator's finding in a prior case to which Dr. Reppy was not a party that “Dr. Reppy violated the laws of California, Tennessee, Indiana, Louisiana” and Florida, 72 FR at 50,408-09 (internal citations omitted), does not constitute substantial evidence in the above-captioned proceeding, and I give that finding no weight in this Recommended Decision.
16

16

Compare supra
note 13.

B. Respondent's Prior Testimony

In its January 19, 2010 supplemental prehearing statement (Gov't Supp. PHS at 5), the Government noticed its intention to offer into evidence a transcript of Dr. Reppy's testimony in
United Prescription Services, Inc.,
72 FR 50,397 (DEA 2007). Dr. Reppy was not a named party in that proceeding, had not yet had any adverse action taken against him by the DEA with respect to his COR (
see
Gov't Ex. 10 at 61) and at the time was apparently unrepresented by counsel. In the present case, on consent of the parties,
17

I admitted the transcript of Dr. Reppy's former testimony. (Tr. 126-27.) A preliminary issue in this Recommended Decision is what weight, if any, to give to that testimony.

17
Counsel for Respondent asked Respondent a series of questions regarding whether his former testimony included various topics and was accurate; Respondent answered in the affirmative. (Tr. 78-80.)

The APA provides that final determinations in Agency administrative proceedings must be based upon “reliable, probative and substantial evidence.” 5 U.S.C. 556(d). In addition, I may consider “evidence that is competent, relevant, material and not unduly repetitious.” 21 CFR 1316.59(a) (2010). Where prior testimony from a previous proceeding is reliable, probative, material and not unduly repetitious, Agency precedent supports the admission of such testimony.
See United Prescription Servs., Inc.,
72 FR 50,397, 50,403 (DEA 2007) (crediting documentary evidence containing substance of witness's prior testimony “[i]n another proceeding”);
see also Nestor A. Garcia, M.D.,
61 FR 30,099, 30,100 (DEA 1996) (giving weight to witness's testimony at hearing that recounted witness's former testimony before state medical board).

Here, the transcript of Respondent's previous testimony in
United Prescription Services
is reliable insomuch as it contains Respondent's sworn testimony at a formal administrative hearing (
see
Tr.127 (referring to what Respondent said “under oath”)) and Respondent testified at the present proceeding that his former testimony was accurate, true and correct.
18

(Tr. 80.) Moreover, Respondent gave the prior testimony in 2007, closer in time to the events at issue in the present case, presenting an increased chance that his memory accurately reflected the events.
19

The transcript of Respondent's prior testimony is probative and material to the extent it addresses matters at issue in the present proceeding, to include without limitation the state(s) in which Respondent held a medical license from 2004 to 2006 (Gov't Ex. 10 at 69); the relationship between witnesses and between the clinic and pharmacy at which Respondent allegedly worked and had prescriptions filled, respectively (Gov't Ex. 10 at 10, 42, 55, 65, 74-77, 82, 89); the evolving ownership and name of the clinic at which Respondent allegedly worked (Gov't Ex. 10 at 6, 9, 46); the extent of Respondent's supervision of a PA (Gov't Ex. 10 at 84-85, 95-97, 101, 106); the practices of Respondent with respect to patient evaluation and treatment (Gov't Ex. 10 at 12, 25-26, 30, 73-74, 77, 78-80, 93-94); and other topics. Finally, although the transcript of Respondent's prior testimony covers many of the topics he addressed in his testimony at hearing, I find that it is not unduly repetitious and that any repetition is offset by its probative value.

18
I draw a distinction between reliability, on the one hand, and accuracy, on the other. Although I find that Respondent's prior testimony in
United Prescription Services
is reliable, only a balancing of the transcript against other evidence in this case can shed light on whether it is accurate.

19
As noted throughout this Recommended Decision, I also find that statements contained in the transcript of Respondent's prior testimony are generally consistent with Respondent's testimony at hearing.

For the foregoing reasons, I find it proper to give weight to relevant portions of the transcript of Respondent's prior testimony in
University Prescription Services.
(
See
Gov't Ex. 10.)

C. Affidavits of Respondent's Employees, Respondent's Patients and Respondent

The parties stipulated at hearing to the admission of affidavits of Respondent's employees Adele Durina and Janice Viscio and his patients “[C.K.]”
20

and “[D.C.],” who did not testify in person. (Tr. 166.) In addition, Respondent testified at hearing that, pursuant to his prior testimony in
United Prescription Services,
he provided an affidavit beneficial to the Government, which he signed. (Tr. 78.) Respondent further testified that Respondent's Exhibit 12 is an unsigned copy of that affidavit. (Tr. 78.) By stipulation of the parties, I admitted Respondent's affidavit. (Tr. 7-9;
see
Resp't Ex. 12.)

20
To protect the privacy of Respondent's patients, only initials are used.

An issue is what weight, if any, to give these affidavits.

Because the patient and employee affidavits address Respondent's professional conduct since the conduct alleged in the OSC, they are relevant to the issue of whether Respondent is currently in compliance with state and federal standards for the prescribing and practice of controlled substances. Moreover, the contents of Respondent's affidavit also bear on matters directly relevant to this case, to include his employment and the extent of his supervision of his PA, John Protheroe, among other topics. Finally, the Government stipulates and does not object to the admission of any of the affidavits. I therefore find it proper to give weight to relevant portions of affidavits of Respondent and Respondent's employees and patients.
See
5 U.S.C. 556(d); 21 CFR 1316.59(a) (2010).

III. Substantive Issue

Whether a preponderance of the evidence establishes that, pursuant to 21 U.S.C. 824(a)(4), Respondent's DEA COR BR5287342 should be revoked and any pending applications for renewal or modification denied, because Respondent's continued registration would be inconsistent with the public interest as that term is used in 21 U.S.C. 823(f).

IV. Evidence and Incorporated Findings of Fact

I find, by a preponderance of the evidence, the following facts:

A. The Clinic and the Pharmacy

Significant testimony at hearing related to Respondent's connection with two entities: University Physicians Resources (UPR), a medical clinic, and United Prescription Services (UPS), a pharmacy. (
See, e.g.,
Tr. 23.)

B. The Witnesses and Affiants
21

Respondent Robert Raymond Reppy, D.O., is licensed as an osteopathic physician in the State of Florida pursuant to license number OS7246. (Tr. 20; Gov't Ex. 15 at 1.) His licensure status is Obligation/Active.
22

(ALJ Ex. 3 at 1.) Although Respondent was previously licensed to practice medicine in Georgia, California and Hawaii, since 2000 he has only been licensed in Florida. (Tr. 20-21; Gov't Ex. 10 at 69.) Respondent is registered with the DEA as a practitioner in Schedules II through V pursuant to DEA COR BR5287342. (ALJ Ex. 3 at 1.) Respondent's COR was scheduled to expire by its terms on April 30, 2009. On April 6, 2009, DEA received Respondent's application for renewal.
23

(ALJ Ex. 3 at 1.)

21
In its prehearing statement and supplements thereto, the Government identified Diversion Investigator Peter W. Flagg, Special Agent Daniel A. Forde, Diversion Investigator Deborah Y. Butcher, and Respondent as witnesses. At hearing, however, the Government rested upon the testimony of Respondent alone, along with the exhibits it introduced into evidence. Moreover, Respondent's counsel did not conduct a separate direct examination of Respondent during Respondent's case-in-chief. Instead, I permitted counsel to expand the scope of cross examination.

22
Respondent's Curriculum Vitae (CV) facially contradicts this stipulation, stating that Respondent's Florida medical license expired on March 31, 2008. The CV, however, appears to be outdated, notwithstanding Respondent's representation in his post-hearing brief that it is “accurate” (Resp't Br. at 2) and his argument that I accept evidence that is uncontroverted (Resp't Br. at 26-27). For instance, the CV indicates that Respondent is presently employed at UPR (Resp't Ex. 10 at 4), despite the otherwise uncontroverted testimony at hearing that Respondent stopped working at UPR in 2006. (Tr. 21-23, 51.) In light of this and other evidence concerning the status of Respondent's state medical license, I find that the weight of the evidence contradicts any inference that Respondent lacks state authority to handle controlled substances in Florida.

23
Pursuant to 5 U.S.C. 558(c), Respondent's COR continues in effect until DEA takes final action on the renewal application. (
See, e.g.,
ALJ Ex. 3.)

Respondent's witness Robert Arthur Carr, Esq. (Mr. Carr) is an attorney who has worked in the area of medical malpractice for twenty years. (Tr. 143.) He is not a physician and has no medical training. (Tr. 156-57;
see also
Tr. 61.) Mr. Carr testified that he knew Respondent when he worked at UPS. (Tr. 142.) Mr. Carr stated that he had no ownership interest in UPR, but at one point he did have a financial interest in UPS.
24

(Tr. 151-52;
see
Resp't Ex. 5.) Every prescription filled by UPS represented revenue for Mr. Carr. (Tr. 152.)

24
In his testimony at a prior proceeding, Respondent testified that a Mr. Jerome Carr and a Mr. Rob Carr were listed as president of UPS in 2003. (Gov't Ex. 10 at 76, 89.) The inconsistency was never explained.

Respondent's witness Melissa Messick, also known as Missy Messick (
see
Tr. 67-68) (Ms. Messick), was employed by UPS from 2001 to 2005. (Tr. 129, 132.) She testified that she was in a position to observe Respondent's work. (Tr. 129.) Ms. Messick is not a medical practitioner and lacks legal or medical training. (Tr. 135.) In a prior proceeding, Respondent testified that a “Ms. Messich” presently owns UPR. (Gov't Ex. 10 at 10;
see also id.
at 76-77.)

Respondent's affiant Janice Vischio (Ms. Vischio) has been a LPN
25

for twenty years, of which she has spent fifteen years in Florida. Her license is in good standing with the Florida Department of Health. As of July 15, 2010, she had worked with Respondent for at least eighteen months. (
See
Resp't Ex. 19 at 2.) Ms. Vischio handles administrative work for Respondent and does not see patients. (
Id.
at ¶ 3.)

25
Although the record in this case is silent, various provisions of federal law define the term “LPN” as “licensed practical nurse.”
See, e.g.,
32 CFR 199.2; 42 CFR 482.51(a)(2).

Respondent's affiant Adele Durina (Ms. Durina) has over twenty years of medical office experience and presently works as Respondent's Office Manager and Medical Assistant. (Resp't Ex. 19 at 6 ¶ 2.) As of as late as July 15, 2010, Ms. Durina had worked with Respondent since he began working at Cosmopolitan Clinic. (
Id.
at ¶ 3;
see also
Tr. 167.)

As of July 15, 2010, [C.K.] has been a patient of Respondent since Respondent began practicing in the local area and [D.C.] had been a patient of Respondent for approximately thirteen to fourteen months for the treatment of degenerative spondylosis. (Resp't Ex. 19 at 12 ¶ 2;
id.
at 9 ¶¶ 1-2.)

C. Respondent, the Clinic and the Pharmacy

Although he did not remember the precise dates, Respondent testified that he was employed at UPR, a medical clinic, for four years beginning in 2002 until approximately 2006. (Tr. 21-23, 51.) Respondent's salary at UPR was the same as his salary at his previous employer; he was paid by the hour or the day rather than by the number of prescriptions he wrote.
26

(Tr. 61, 79.)

26
Respondent also testified that he did not have any ownership affiliation with UPS. (Gov't Ex. 10 at 46.)

When Respondent was first approached about working at UPR, he understood that customers would interact with UPR via the Internet. (Tr. 59-60.) Respondent testified that he was the only physician who worked at UPR. (Tr. 23.) This statement is somewhat inconsistent with testimony by Mr. Carr that the company worked in the mail-order pharmacy realm and acquired licenses to ship pain relievers to anywhere in the country by working with a number of physicians.
27

(Tr. 143;
see also
Resp't Ex. 5 ¶ 4.)

27
The contradiction is perhaps explained by Respondent's testimony in a prior proceeding that another physician worked at UPR before Respondent began working there. (
See
Gov't Ex. 10 at 65.) Moreover, the record contains no evidence that UPR was the sole clinic with which UPS worked.

Before joining UPR, Respondent worked at Home Harbor Urgent Care Center. (Tr. 61.) After leaving UPR, Respondent worked at a clinic called Gulf Shore from 2007-2009; between 2009 and the present, he has worked at Cosmopolitan Clinic in Brooksville, presumably in Florida. (Tr. 56, 68, 107; Resp't Ex. 17.) Gulf Shore was a pain management practice run by an anesthesiologist. (Tr. 57.) Cosmopolitan is a combination family practice and pain management clinic. (Tr. 57.)

In his testimony in a prior proceeding, Respondent testified that UPR changed its name to MediHealth, which evolved into a general family practice. (Gov't Ex. 10 at 6, 9;
see generally
Tr. 107-08.) This testimony is consistent with Respondent's testimony in the present case that from 2007 to 2009 Respondent worked part-time at MediHealth, a clinic owned by Ms. Messick. (Tr. 67-68.)

(a) The Connection between UPR and UPS

Respondent testified that UPS is a pharmacy. (Tr. 23.) UPR, by contrast, is a medical clinic. (Tr. 23.) The two organizations had close connections.

For instance, Respondent learned in 2006 that UPS owned UPR and that a Sam Bollinger
28

(Mr. Bollinger) was the owner of both UPR and UPS.
29

(Tr. 22-23.) Respondent stated, however, that Mr. Bollinger “had always represented to me that no financial link was there.”
30

(Tr. 23.) In addition, Mr. Carr testified that he formed UPS in 2001 (Tr. 143;
see
Tr. 61;
see also
Resp't Ex. 5) and that UPS worked in the mail-order pharmacy realm and acquired licenses to ship pain relievers to anywhere in the

country by “working with a number of physicians.”
31

(Tr. 143.)

28
The transcript of hearing in the above-captioned case spells the name “Bollinger,” (
e.g.,
Tr. 23) and that is the convention adopted here.
But see
Gov't Ex. 10 at 9 (“Ballinger”); Resp't Ex. 12 (same); Resp't Ex. 5 (same).

29
Mr. Bollinger is not a medical professional. (Tr. 24.)

30
In his testimony in a prior proceeding, however, Respondent testified that Mr. Bollinger required Respondent to send his patients' prescriptions to UPS, that the vast majority of his prescriptions from 2005 and 2006 were filled at UPS, that most of the clerks and staff at UPR had at one time worked at UPS and that Mr. Bollinger “pretty much ran the show.” (Gov't Ex. 10 at 42, 55, 74-76, 82.)

31
In light of Respondent's testimony that he was the only physician employed by UPR between 2002 and 2006 (Tr. 21-23, 51), Mr. Carr's statement that UPS worked with “a number of physicians” (Tr. 143) may be explained by Respondent's testimony that a Dr. Long and a Dr. Ibanez previously worked at UPR (
See, e.g.,
Gov't Ex. 10 at 80-81). See

note 27,
supra.

In addition, Respondent testified that the UPS pharmacy filled the vast majority of the prescriptions Respondent wrote while at UPR. (Tr. 61.) Respondent testified that although he thought he was working for the clinic UPR, he inadvertently was working for UPS. (Tr. 94.) He then contradicted himself, stating that he wasn't working for UPS. (Tr. 94.) Mr. Carr stated that Respondent was not employed by UPS. (Tr. 151-52.) He denied supervising Respondent, and further denied having any say over Respondent's medical practice. (Tr. 152.) Ms. Messick testified that she was employed simultaneously by UPS and UPR from 2001 to 2005. (Tr. 129, 132, 133.) She described it as a “back and forth,” and she observed what went on at UPS and UPR. (Tr. 133.) She confirmed that she observed Respondent's work at UPR, and stated that Respondent didn't work at UPS. (Tr. 133.) She had seen Respondent in the pharmacy at UPS only once. (Tr. 134.) She testified that she was in a position to observe Respondent's work, and that Respondent followed guidelines set by Mr. Carr. (Tr. 129.)

(b) Respondent's and Mr. Carr's Telemedicine Research

Respondent stated that when he began prescribing controlled substances to individuals who contacted him at UPR primarily via the Internet, telemedicine was a new practice; “the legal community was struggling in a gray area to determine what those [legal standards] would be * * *.” (Tr. 64.) Consequently, Respondent viewed his work at UPR as an experiment involving new ways to use the Internet. (Tr. 31.) He had some concerns about the legitimacy of the practice, “[s]o I did my due diligence.” (Tr. 60). He “did a little research on my own,” consulted with the attorney Mr. Carr and relied on “a letter shown me from the DEA giving permission to do it.” (Tr. 60;
see also
Tr. 89-92.)

The letter to which Respondent referred was preceded by a letter dated January 28, 2002, and signed by “Robert Carr/President/United Prescription Services, Inc.” (Resp't Ex. 3.) Addressed to Patricia M. Good, Chief, Liaison and Policy Section, Office of Diversion Control, DEA, Mr. Carr's letter describes the “Community Pharmacy” UPS and solicits Ms. Good's “views on whether any requirements or changes are warranted in our policy.” (Resp't Ex. 3; Tr. 90.) Although the letter recites that a copy of UPS's policies is attached (Resp't Ex. 3), no policy pages are attached to the record copy (
see
Resp't Ex. 3) and Respondent testified that he never saw the policy pages.
32

(Tr. 96.) Mr. Carr confirmed that he contacted the DEA on January 28, 2002, to inquire whether the policies of UPS were in conformity with the law. (Tr. 144-45.)

32
Mr. Carr's description of the policies that he sent to DEA for review (
see
Tr. 145-46, 158-59) accordingly have little bearing, if any, on the question of what Respondent believed at the time he read the letter.

Slightly less than one month later, Mr. Carr received a response. (Tr. 146.) A February 27, 2002 letter by Ms. Good, addressed to “Mr. Robert Carr/President/United Prescription Services, Incorporated” opined that “the submitted policies and procedures meet the federal requirements regarding controlled substance prescriptions.”
33

(Resp't Ex. 4 at 1;
see
Tr. 91.) Mr. Carr testified that the DEA advised him that “there was no further things [sic] we had to be concerned with our physicians that were practicing telemedicine.” (Tr. 146.) Respondent and Mr. Carr agreed that Mr. Carr advised Respondent that by following Mr. Carr's guidance, Respondent would be in compliance with state and federal law. (
Compare
Tr. 91,
with
Tr. 147.)

33
Mr. Carr testified that he no longer has a copy of the policy documents he submitted to the DEA with his June 28, 2002 letter, explaining that he left them with UPS when he sold the company. (Tr. 158.)

Respondent testified that Mr. Carr showed him Ms. Good's February 27, 2002 letter (Tr. 91) and that Respondent believed the letter gave Respondent permission to prescribe to patients in multiple jurisdictions who contacted him via an Internet web site but did not necessarily meet with him face to face. (
See
Tr. 59-60, 110.) Respondent conceded, however, that Mr. Carr's letter asks about the dispensing practices of the pharmacy, not the prescribing practices of physicians. (Tr. 97.) Respondent further conceded that he lacked specific knowledge of what policies Ms. Good approved for the pharmacy. (Tr. 96.) And in any event, the record reflects that Ms. Good's general expression of approval of the pharmacy came with a number of caveats: “Management personnel will verify several elements including * * * professional licensure[,] DEA registration[, l]egitimate patient/prescriber relationship[, p]rescriptions are issued in the usual course of professional practice, and [p]rescriptions are issued for a legitimate medical purpose.” (Resp't Ex. 4 at 1.)

Although Respondent now concedes that Mr. Carr's assurances that Respondent was complying with the law were inaccurate (Tr. 110-11), he devoted significant testimony to defending his reliance on Mr. Carr's advice. (
See
Tr. 64, 67, 98, 100-01.)

Mr. Carr also testified as to the legal status of Internet prescribing practices as well as his own role in establishing UPS. Mr. Carr stated that he researched the law regarding telemedicine and related prescribing practices, surveying the laws of all fifty states addressing the regulation of pharmacies, general medicine and pain medication. (Tr. 144.) He said he searched for anything in the telemedicine realm, compiling a file “well over a foot high of documents that I reviewed extensively from various states, various regulatory authorities.” (Tr. 150.) He stated that in 2001 the statutes and regulations were very minimal on telemedicine. Mr. Carr testified that the only reference was a statute from an unidentified jurisdiction addressing neural radiology in telemedicine. (Tr. 144.)

Mr. Carr stated that “California is one of the states that we were prescribing to, or shipping drugs to.” (Tr. 158.) He could not, however, identify the effective date of the California law requiring that a physician hold a California medical license before prescribing to people in California over the Internet. (Tr. 150, 157.) He moreover could not confirm whether he specifically researched California's law, stating only that “yes, there would have been a review of all California licenses * * * in 2002 * * * .” (Tr. 158.)

Mr. Carr also testified regarding the Model Guidelines for the Appropriate Use of the Internet in Medical Practice (Model Guidelines).
34

He did not recall seeing that document in particular during the course of his research of telemedicine. He stated, however, that if it was published in 2002, he would have reviewed it extensively. (Tr. 149-50.) He also stated that he was generally familiar with the document. (Tr. 155.)

34

See
Resp't Ex. 9.

Page nine of the Model Guidelines contains the following provision: “Physicians who treat or prescribe through Internet Web sites are practicing medicine and must possess appropriate licensure in all jurisdictions where patients reside.” (Resp't Ex. 9 at 9;
See
Tr. 156.) Mr. Carr testified that he did not previously see that sentence.

(Tr. 156.) “I would not have advised [Respondent] of that” because “there wasn't to my knowledge any specific requirement in Florida as to determine the nexus of where physician/patient relationship was in fact occurring and where the medical practice was occurring.” (Tr. 156.)

Mr. Carr further testified that he relied on statements, such as the one appearing in the Model Guidelines, that “the [physician-patient] relationship is clearly established when the physician agrees to undertake diagnosis and treatment of the patient * * * whether or not there has been a personal encounter between the physician * * * and patient.” (Tr. 163; Resp't Ex. 9 at 7.) He did not recall, however, seeing that statement in particular during the course of his research of telemedicine. He could confirm only that “[s]omething like this was something I'd probably even send down to the doctors to give them * * * assurances.” (Tr. 163.)

Ms. Messick's testimony in this regard was consistent, if equally vague: Ms. Messick explained that Mr. Carr had provided statutes and regulations on practicing telemedicine and the physician-patient relationship to physicians at UPR.
35

(Tr. 134-35.) Ms. Messick testified that the guidance Mr. Carr provided to Respondent was legal, not medical, and dealt with telemedicine and how to maintain a physician-patient relationship. (Tr. 135.) Ms. Messick elaborated that this question was a controversial subject of much discussion in the office.
36

(Tr. 136.)

35
He did not provide them to Ms. Messick, however. (Tr. 135.)

36
For instance, Ms. Messick cited the question of whether “the patient actually had to be seen by the physician or the physician's office [or] another physician.” (Tr. 137.)

Mr. Carr testified that he relied on a
Federal Register
Notice entitled “Dispensing and Purchasing Controlled Substances Over the Internet.” (Tr. 153;
see generally
Resp't Ex. 8.) That document provides that “practitioners must be registered with DEA and licensed to prescribe controlled substances by the state(s) in which they operate.” (Tr. 154;
see
Resp't Ex. 8 at 3.) Yet, while UPS filled prescriptions written by Respondent and shipped them all over the United States, Respondent was not licensed to practice medicine in any state other than Florida. (Tr. 154.) Many of Respondent's patients did not come to Florida, but interacted with Respondent electronically. (
See
Tr. 25, 154.) Mr. Carr explained that he interpreted Respondent's Internet prescribing practices as operating in the state of Florida. (Tr. 160-61.)

D. Respondent's Physician's Assistant (PA)

Significant testimony at hearing concerned actions allegedly taken by John Protheroe (Mr. Protheroe), a PA, and the extent, if any, of Respondent's supervision of Mr. Protheroe.

Mr. Protheroe began working for UPR a few months after Respondent started working there in 2002. (Tr. 37, 38, 120.) Respondent did not hire him, but he worked under Respondent's license. (Tr. 37, 131.) Respondent testified that “[Mr. Protheroe] was hired because * * * I was not making Mr. Bollinger happy with the amount of restrictions that I was placing on the patients and thus slowing everything down * * * he hired Mr. Protheroe to go behind my back and speed things up. He never discussed with me `do you need one?' ” (Tr. 120.)

Mr. Protheroe was not often present while Respondent was in the office, and frequently worked from home. (Tr. 37, 38, 41; Gov't Ex. 10 at 85 (“He was purportedly * * * supposed to work under my license, submit himself to my review * * * And yet he was allowed to review patients' charts from his own home, away from the office where no one could see him.”).) Mr. Protheroe was a PA only to Respondent, and not to any other doctor. (Tr. 120.)

Respondent testified to having an antagonistic relationship with Mr. Protheroe (Tr. 37) and developing a number of concerns before November 2003. (Tr. 121.) Respondent accused Mr. Protheroe of exploiting Respondent's license “behind my back without my permission” (Tr. 37, 42), and failing to adhere to the criteria by which Respondent rejected patients (Tr. 122).

Mr. Protheroe's compensation was connected to the number of prescriptions Mr. Protheroe wrote, most of which were for controlled substances. (Tr. 79; Gov't Ex. 10 at 96-97; Resp't Ex. 12 at 2.) Ms. Messick testified that Mr. Protheroe was compensated at a rate of fifteen dollars per prescription. (Tr. 132.) According to Respondent, Mr. Protheroe “wrote so many prescriptions without my authorization using a stamp of my signature” that Respondent was uncertain whether Respondent had completed the conduct charged in an administrative complaint by the Florida Department of Health,
37

or whether Mr. Protheroe had written the prescriptions in question. (Tr. 41.) Respondent testified that the number of prescriptions that Mr. Protheroe wrote without Respondent's authorization was at least 14,000. (Tr. 80;
see generally
Tr. 132; Gov't Ex. 10 at 84-85.) Respondent did, however, acknowledge occasions in which Respondent approved prescriptions written by Mr. Protheroe. (Tr. 38.) Respondent estimated the quantity as “only a few a day.” (Tr. 42.) The vast majority of Mr. Protheroe's prescriptions, however, Respondent was unaware of. (Tr. 38.)

37
As detailed below, the Florida Department of Health accused Respondent of prescribing controlled substances to a patient without: conducting a face-to-face meeting, performing an adequate physical exam, taking an adequate medical history, documenting a treatment plan or making referrals,
inter alia.
(Gov't Ex. 14 at 4.)

Respondent testified that Mr. Protheroe wrote the majority of the objectionable prescriptions while Respondent was away from the office from November 2004 to March 2005 after his wife was diagnosed with a serious health issue. (Tr. 121-22, 132; Gov't Ex. 10 at 85, 96, 101.) Mr. Protheroe's misconduct continued the entire time Mr. Protheroe worked there, until Mr. Protheroe left in 2005, shortly after Respondent returned from medical leave. (Tr. 138.) It was only after returning that Respondent complained about Mr. Protheroe to Ms. Messick, who recalled Respondent's complaint that Mr. Protheroe wrote prescriptions without accurately reading the diagnoses or medical records. (Tr. 131, 138-39.)

Respondent approached Mr. Bollinger several times and requested that Mr. Protheroe be fired. (Tr. 37;
see also
Tr. 131; Gov't Ex. 10 at 106.) Respondent said he did not need Mr. Protheroe, and that Mr. Protheroe “was put there by someone else and I had no power to remove him because I did not pay his salary. I could not tell him to leave.” (Tr. 37;
see
Tr. 122.) In July 2005, Mr. Bollinger removed Mr. Protheroe from UPR. (Resp't Ex. 12 at 4.)

Respondent testified that he was precluded from a full right to supervise Mr. Protheroe, which he now regrets so much that “it's so soured me on the experience that I've never hired any physician's assistants since and I don't think I ever will.” (Tr. 108-09.) But Respondent's testimony that he lacked the full authority to supervise Mr. Protheroe, including the right to fire him if necessary, is substantially undercut both by the relationship (Mr. Protheroe was the physician's
assistant
and Respondent was the
physician
), as well as by Respondent's affidavit, affirming that Respondent was medical director of UPR and its sole corporate officer beginning in 2004. (
See
Resp't Ex. 12 at 2.)

Negligibly mitigating this contradiction is a statement by Respondent that he did not realize he was UPR's sole corporate officer until 2006, even though as early as 2004, he understood he was medical director:

In 2004, Mr. Bollinger asked me to sign some corporate documents for [UPR]. I understood that these documents would list me as the medical director of [UPR]. I learned in late 2006, that Mr. Bollinger made me the sole corporate officer and removed himself as a corporate officer of [UPR] by having me sign these documents. When Mr. Bollinger did this, Mr. Bollinger listed my address as 2304 East Fletcher Avenue, Tampa, Florida. That is not the address of [UPR], nor is it the address at which I worked. The address Mr. Bollinger listed for me on the corporate filings is the address for [UPS].

(Resp't Ex. 12 at 2.)

After carefully evaluating Respondent's testimony, other record evidence and Respondent's demeanor while testifying, I find that Respondent's testimony regarding the scope of his authority over Mr. Protheroe is not fully credible. For instance, to the extent that Respondent testified that he lacked the authority to supervise or fire Mr. Protheroe after 2004, this testimony stands in stark contrast with Respondent's own evidence that Respondent understood Respondent was medical director of UPR in 2004. Additionally, the evidence includes Respondent's concession that he had an obligation to properly supervise Mr. Protheroe (Tr. 101;
see
Resp't Ex. 9 at 5 (“physicians should * * * [p]roperly supervise physician extenders”)), and his assertion that he did, in fact supervise Mr. Protheroe “when he was in the office * * *.” (Gov't Ex. 10 at 105.) For the foregoing reasons, I find that Respondent possessed both the obligation and the authority to supervise Mr. Protheroe.
38

38
A later section of this Recommended Decision addresses whether Respondent had any legal obligation or authority in this regard, and if so, whether Respondent discharged it.

E. Respondent's Prescriptions to Internet Customers, 2004 Through October 2006

(a) Respondent's Service to Internet Customers at UPR, Generally

Respondent testified as to how he handled prescription requests from customers when he worked at UPR. Respondent conducted a telephonic or in-person consultation with every person to whom he prescribed controlled substances. (Tr. 29.) Respondent would interview most patients over the phone and then determine whether to issue a prescription or order any “tests on further verifications that were necessary.” (
See
Tr. 25.) Approximately ninety percent of the consultations occurred exclusively by telephone, without an in-person meeting. (
See
Tr. 26;
see also
Gov't Ex. 10 at 77 (ten percent or “[m]aybe less than five percent”).) In approximately 2005, Respondent began encouraging more patients to come to the clinic in Florida. (
See, e.g.,
Gov't Ex. 10 at 93-94.)

Before phone consultations took place, patient records “were compiled by the customer and sent to me.”
39

(Tr. 34.) Other doctors did not send patient records to Respondent; patients sent them.
40

(Tr. 34, 79-80.) Respondent testified that “Patients did not make them up on their own.” (Tr. 34.) Respondent's staff at UPR would initially “screen” patients and compile charts containing patients' contact information, diagnoses and medical documentation verifying their conditions. (Tr. 24-25, 37.) The staff would provide a chart “whenever I requested it.”
41

(Tr. 70.)

39

See also
Gov't Ex. 10 at 73 (“Usually it was the patient's job to gather the records and forward them to me.”).

40
There is also evidence that an entity called FedexMeds.com was an occasional referral source of patients, which occasionally transmitted medical records to Respondent. (Gov't Ex. 10 at 73-74;
see generally
Resp't Ex. 12 at 3.)

41
This testimony is consistent with Ms. Messick's testimony that she or her staff provided medical records to Respondent before he conducted telephone interviews with Internet patients or prescribed medication to them. (Tr. 130.)

During the four years that Respondent worked at UPR (Tr. 35-36, 51), other doctors referred approximately 300 patients to Respondent. (Tr. 35-36.) As for the rest of Respondent's thousands of patients (
e.g.,
Tr. 43), the physicians whose records Respondent relied on to justify prescribing controlled substances were not affiliated with Respondent and did not provide any medical services, testing or evaluation at Respondent's request. (Tr. 36.)

Respondent testified that to have a valid doctor-patient relationship, a servicing medical professional must have conducted a physical examination of the patient. (Gov't Ex. 10 at 79-80 (“Someone must have done [a physical examination]).”) For follow-up consultations, Respondent did not require “a new physical exam with every consult. When it became, in my opinion, too dated, then I would demand another physical exam.” (Gov't Ex. 10 at 79.) But Respondent performed physical examinations on only two percent of his patients in his first year of employment with UPR, a percentage which rose to no more than seven percent of patients in later years. (Tr. 25-26.) Moreover, in a given week, Respondent rarely contacted a patient's primary care physician whose records he was reviewing. (Tr. 32, 34-35, 80; Gov't Ex. 10 at 30, 78.)

Although he sometimes would do so, Respondent did not always find it appropriate to tell customers that online communication cannot take the place of face-to-face communication. (Tr. 102-03.)

(b) Extent of Respondent's Verification of Patient Identities at UPR

Respondent had no face-to-face interactions with as many as ninety percent of his patients. (Tr. 26, 55.) When ascertaining a patient's identity before issuing a controlled substance prescription, therefore, Respondent relied on representations made by the radiologist who read the patient's CAT scan or MRI, or the office notes of the physician who first saw the patient. (Tr. 54.)

As for how he verified the identity of patients with whom he never physically interacted, Respondent testified that “I used the same method of checking their identity as I would if they were present in front of me.” (Tr. 54.) Yet Respondent conceded that he never looked at the face of the vast majority of people to whom he issued prescriptions. (Tr. 55.) He conceded that it was possible, therefore, that a family member could take the medical records and identification of a deceased person, and Respondent would have no way of knowing whether the person on the phone was actually the person whose medical records and identification Respondent was reviewing. (Tr. 55-56.)

Respondent explained that “I was rather good at detecting fraud” by comparing font and language in different parts of patient medical records. (Tr. 56.) Respondent added: “If the state did not adequately check their identity before issuing them a driver's license * * * I had no way of determining that.” (Tr. 54.)

(c) Extent of Respondent's Patient Evaluation and Documentation Practices at UPR

When he worked at UPR, Respondent conducted physical examinations on some of the individuals who contacted him through Internet Web sites. (Tr. 25.) The percentage was very small. (Tr. 25.) “It went from about two percent in the beginning to six or seven percent towards the end.” (Tr. 26.) Respondent did not conduct physical examinations on more than ninety percent of his patients. (Tr. 26.) Nor did other physicians perform examinations of those patients at Respondent's

direction.
42

(Tr. 36.) Respondent elaborated that other physicians had already performed examinations or tests before the patient came into contact with Respondent, explaining “That's the whole point.” (Tr. 36.) Respondent had no affiliation with the physicians whose records he relied on. (Tr. 36.) He admitted to prescribing hydrocodone to thousands of individuals without a face-to-face examination. (Tr. 43;
see
Tr. 53.)

42
As Respondent explained, “the physical examination has to be done by someone else in the case of telemedicine. [Patients] have to have seen a local doctor that actually saw them and performed the physical examination, and gotten those notes to me, so that I know what was seen and have the information available.” (Gov't Ex. 10 at 25-26.)

Each day Respondent consulted with approximately thirty customers. (Tr. 26, 51.) He worked five days per week. (Tr. 35; 51-52.) On average, he issued controlled substances prescriptions to 150 patients per week. (Tr. 52.) Respondent worked at least forty weeks per year, usually more. (Tr. 52.) Thus, on approximately 5000 occasions per year or more, Respondent issued controlled substance prescriptions to new or repeat customers. (Tr. 53.)

Many patients came to him pre-diagnosed, and Respondent stated that they had to prove what the diagnosis was. (Tr. 29.) Although Respondent testified that he contacted a patient's primary physician whose medical records he was reviewing “on occasion” (Tr. 80) and “whenever it was necessary” (Tr. 32), he also testified that he only consulted one or two physicians out of the 150 patients he serviced in a given week, (Tr. 34, 35;
see generally
Gov't Ex. 10 at 30, 78 (“I generally did not have to do that on a regular basis. That was less than once a day. It was when I had specific questions.”)). Respondent testified that it is not a common practice to speak with the medical professional who prepares medical records such as MRIs and radiology reports. (Tr. 32.)

Respondent stated that it would be inappropriate and “not smart medicine” (Gov't Ex. 10 at 26) to complete a first-time diagnosis over the phone, but not necessarily a subsequent diagnosis.
43

(Tr. 29-30, 104.) Later, however, he stated that “I have enough expertise to know whether someone has a respiratory problem at the moment by how they're talking to me over the phone.” (Tr. 115.)

43

See also
Gov't Ex. 10 at 12 (“it's certainly not considered appropriate to make new diagnoses in a telemedicine format”).

Respondent conceded that it would be inappropriate to prescribe controlled substances to an individual who had not been diagnosed with having a legitimate medical need for the drugs. (Tr. 30.)

The record also reflects allegations by the Florida Department of Health that Respondent failed to adequately discuss and document treatment options with patients (
see, e.g.,
Gov't Ex. 14 at 3-4), although these allegations were resolved by settlement agreement (Gov't Exs. 15 & 16).

At hearing, Respondent confessed that his evaluation of patients and documentation at UPR “is not considered adequate,” and that “I have a different standard now because I've been educated about it.” (Tr. 45-46.) “[T]he happy medium [in fighting controlled substance abuse] is to insist on proper documentation—and try to wean people off it when you can.” (Tr. 66.) Reflecting on his current practice at Cosmopolitan, Respondent stated that he has been lowering patient dosages and “getting rid of the people who had abuse potential.” (Tr. 66.) “I think I've done a good job where I am of * * * cleaning up the practice.” (Tr. 66.)

(d) Respondent's Internet Consulting and Prescribing Policies at UPR

Respondent testified to his belief that his patients' primary care physicians had undertaken personal encounters with patients, and therefore patients “were not placing their whole care in my hands.” (Tr. 110.) He further testified that in 2002, the Federation of State Medical Boards stated that a face-to-face encounter was not necessary as long as the patient expected that the doctor would take over the treatment plan and review medical documentation. (Tr. 43-44.)

The Federation of State Medical Boards, however, is “a collection of licensing bodies from all the states.” (Tr. 44.) Respondent testified that he did not initially know whether it is itself a licensing authority. (Tr. 45.) But he then conceded that “I realize now that it was a mistake after people with more legal expertise than I have told me” that statements by the Federation of State Medical Boards do not carry “legal weight.”
44

(Tr. 45;
see also
Tr. 164.)

44
In any event, Respondent conceded that he personally has not received a license from the Federation of State Medical Boards. (Tr. 45.)

Respondent disputed the suggestion that he failed to adequately perform patient evaluations at UPR, testifying that his interaction with patients was adequate according to his understanding of what was required by the Federation of State Medical Boards. (Tr. 43.) He further stated that none of his patients for whom he prescribed over the Internet came to any harm: “there were no mortalities, no morbidity.”
45

(Tr. 116.) Asked whether any patient suffered an overdose death, Respondent answered that “I know none of them did while I was prescribing. If it happened since that time, then it happened because someone else was prescribing it. I can't be responsible for what some other doctor did
.”
(Tr. 117.) “I'm sure there would have been a lawsuit if there was one and I never received any.” (Tr. 123.) He conceded, however, that he has not stayed in touch with all of his UPR Patients since leaving UPR. (Tr. 117.)

45
This testimony is consistent with testimony of Ms. Messick, who stated that she was not aware of any injuries or complaints by patients as a result of Respondent's prescribing practices. (Tr. 130.) She conceded, however, that she had not stayed in touch with the thousands of Internet patients with whom Respondent consulted. (Tr. 137.)

(e) Location of Respondent's Customers

Respondent testified that most of the individuals to whom Respondent prescribed controlled substances became Respondent's customers through Internet Web sites. (Tr. 25.) Respondent testified that he issued prescriptions for controlled substances to people located all across the United States. (Tr. 27, 39.) Although he did not remember precisely how many different states, he said the list was “long.” (Tr. 39;
see
Resp't Ex. 12 at 3 (“hundreds of patients who lived outside of Florida”).) For instance, in response to questioning by counsel for the Government, Respondent conceded issuing prescriptions for controlled substances to people in Tennessee, California, Illinois and North Carolina. (Tr. 38.) Respondent said that Kentucky and Mississippi were “off limits,” but did not actually deny prescribing to individuals in those states. (Tr. 28.)

Respondent admitted that he was not licensed to practice medicine in all fifty states while he worked at UPR. (Tr. 28.) He presently understands that he has an obligation to prescribe or dispense controlled substances in accordance with all applicable state laws, and that prescribing across state lines sometimes includes the application of laws other than the laws of the State of Florida. (Tr. 63.) He concedes that, in hindsight, the prescriptions he issued at UPR to Internet customers “did not meet the highest standard * * * and I'm sorry.” (Tr. 63-64.) In his post-hearing brief, Respondent states that he “now realizes that the prescriptions he issued at [UPR] to Internet patients were not issued in the usual course of professional practice * * * .” (Resp't Br. at 17.) When asked whether he now knows that his Internet prescribing at UPR was not consistent with the law as it was at that time, Respondent answered “Absolutely.” (Tr. 91-92.) Contradicting himself somewhat, Respondent also stated that

at the time he engaged in the prescribing practices that are the subject of the OSC, he wasn't doing anything wrong (Tr. 64-65), explaining that “if I thought I was doing anything wrong, I wouldn't have done it.” (Tr. 65.)

Significant testimony addressed the extent of Respondent's reliance on and understanding of the Model Guidelines. Respondent admitted that before accepting employment with UPR, he does not recall whether he read the provision from “Section Five[:] Guidelines for the Appropriate Use of the Internet in Medical Practice,” entitled “Compliance with State and Federal Laws and Web Standards.” (Tr. 105.) In pertinent part, that provision reads: “Physicians who treat or prescribe through Internet Web sites are practicing medicine and must possess appropriate licensure in all jurisdictions where patients reside.” (Resp't Ex. 9 at 9.) Respondent admitted that he failed to comply with that provision. (Tr. 105.)

Asked if he was regretful and remorseful for the role he played at UPR in prescribing controlled substances, Respondent stated: “Yes, very much. I sincerely wish I had never been duped into being any part of their operation at all.” (Tr. 92.) Respondent testified that in the future, he would not prescribe for patients in jurisdictions in which he lacks a medical license. (Tr. 111.) Asked by counsel whether he felt remorse for having done so, he said “Yes. Not only am I remorseful about it, but I feel rather foolish and stupid for doing so in retrospect.” (Tr. 111.) He also deemphasized his own responsibility, stating “I was just an hourly employee. I was just a pawn in the machine.” (Tr. 119.)

(f) Quantity of Prescriptions and Extent of Diversion Avoidance at UPR

On approximately 5000 occasions per year or more during his tenure at UPR, Respondent issued controlled substance prescriptions to new or repeat customers. (Tr. 53;
see also
Tr. 25, 32, 43.)

Most or many of the individuals who contacted Respondent at UPR sought and ultimately received a specific controlled substance. (Tr. 28, 36.) The most common request was for hydrocodone, a Schedule III narcotic. (Tr. 28.) Respondent testified that some patients also sought alprazolam, which he identified as a Schedule IV benzodiazepine trading under the brand name Xanax or Valium.
46

(Tr. 29.) Patients requested these drugs before Respondent consulted with them. (Tr. 29.) Respondent explained that patients “were just reiterating what their own physician had put them on.” (Tr. 70.) Respondent testified that on many occasions, he reduced the amount of medications for some patients and suggested alternate treatment methods. (Tr. 79-80.)

46
Respondent's testimony that alprazolam is sold under the trade name Valium is incorrect. I take official notice that alprazolam sells under the trade name Xanax and that diazepam sells under the trade name Valium. Under the APA, an agency “may take official notice of facts at any stage in a proceeding—even in the final decision.” U.S. Dept. of Justice,
Attorney General's Manual on the Administrative Procedure Act
80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and DEA's regulations, Respondent is “entitled on timely request, to an opportunity to show to the contrary.” 5 U.S.C. 556(e); 21 CFR 1316.59(e) (2010);
see, e.g., R & M Sales Co.,
75 FR 78,734, 78,736 n.7 (DEA 2010). Respondent can dispute the facts of which I take official notice by filing a properly supported motion for reconsideration within twenty days of service of this Recommended Decision, which shall begin on the date it is mailed.
See, e.g., Joseph Gaudio, M.D.,
74 FR 10,083, 10,088 (DEA 2009) (granting respondent opportunity to dispute officially noticed facts within fifteen days of service).

In Respondent's professional medical opinion, the abuse of controlled substances is a significant problem. (Tr. 65.) Respondent testified that some people misuse and abuse the kinds of controlled substances that Respondent prescribed at UPR, particularly hydrocodone, alprazolam, oxycodone and methadone. (Tr. 65.) From time to time Respondent encountered patients who abused controlled substances and immediately dismissed them. (Tr. 65.) “I ferreted it out where I could.” (Tr. 65.) Respondent, however, could not state how many of his patients were addicted to narcotics while he was prescribing to them. (Tr. 118.) Respondent is familiar with the rising rate of oxycodone overdose deaths, calls it a big problem and “I do best to make sure that doesn't happen.” (Tr. 59.) Respondent stated that when physicians prescribe correctly, doctors who prescribe controlled substances to drug abusers do not themselves contribute to the pharmaceutical abuse problem. (Tr. 66.)

(g) The Florida Department of Health Administrative Complaint

Respondent testified that Florida instituted an administrative complaint (Complaint) against him arising out of his Internet prescribing practices at UPR.
47

(Tr. 40; Gov't Ex. 14.) The Complaint alleged,
inter alia,
that in 2004 Respondent repeatedly prescribed hydrocodone to patient [D.P.], a resident of Wyoming who had never had a face-to-face meeting with Respondent. (Gov't Ex. 14 at 2, 3.) It further alleged that Respondent failed to perform an adequate evaluation of [D.P.], including an adequate medical history and an adequate physical examination to justify prescribing controlled substances; that Respondent failed to document discussing the risks and benefits with [D.P.]; that Respondent failed to prepare and document an adequate treatment plan or keep adequate medical records of his treatment of [D.P.]; and that Respondent failed to refer [D.P.] for additional consultations or diagnostic testing. (Gov't Ex. 14 at 4.)

47
Respondent stated that he never received correspondence from licensing boards in other states complaining of his practice. (Tr. 39.) He did, however, become aware of some such complaints in the context of a previous proceeding against UPS. (Tr. 40.)

Respondent could not confirm or deny whether he completed the conduct alleged in the Complaint because “this PA John Protheroe wrote so many prescriptions without my authorization using a stamp of my signature that it may well have been done under—under that process.” (Tr. 41.) Respondent explained that when he received the Complaint, he had no way of looking into the patient records to determine whether it was Respondent or Mr. Protheroe who wrote the prescriptions in question. (Tr. 41-42.)

Respondent further testified that he did not know the identity of “[J.N.],” another patient. (Tr. 42.) The Complaint alleged that [J.N.] was Respondent's patient, located in Idaho, to whom Respondent allegedly prescribed hydrocodone, without conducting a face-to-face meeting or physical examination, discussing the risks and benefits of controlled substances, preparing and documenting an adequate treatment plan, keeping adequate medical records of treatment, or referring [J.N.] for additional consultations or diagnostic testing. (Tr. 42;
see
Gov't Ex. 14 at 4-6.) Respondent explained that when he received the Complaint, he did not have access to the records of patient [J.N.]. (Tr. 73-74.) Nor did Respondent have the opportunity to review the records of [S.J.], another patient listed in the Complaint, because Respondent lacked access to those records, as well. (Tr. 74.)

In short, Respondent does not know whether he issued any of the prescriptions alleged in the Complaint. (Tr. 42, 43.) Respondent conceded, however, that even if he did not personally issue the prescriptions, he did prescribe hydrocodone to thousands of individuals without conducting face-to-face examinations. (Tr. 43.) Respondent explained his belief that the patients for whom he was prescribing already had had a face-to-face meeting with their primary care physicians; Respondent believed he was merely renewing existent prescriptions,

continuing the course of care and not initiating the first treatment plan. (Tr. 109.) He conceded, however, that he had treated some patients who had been dropped by their providers, whether for lack of funds or another reason. (Tr. 113, 116.) “I was continuing the treatment plan that was first set up by their doctor who might no longer have been willing to continue that plan * * * So the patient had nowhere else to go.” (Tr. 113.)

The Complaint resulted in a settlement agreement, dated October 2, 2007, implemented through a final order dated December 26, 2007. (Tr. 46-48; Gov't Exs. 15 & 16.) Respondent agreed to pay a fine of $12,500, complete continuing medical education courses about prescribing controlled substances (“drug course”), maintaining medical records (“records course”) and laws and rules (“laws and rules course”), perform 100 hours of community service and prepare a paper suitable for publishing in the Journal of the American Osteopathic Association. (Tr. 46; Gov't Ex. 15;
see also
Gov't Ex. 16.)

Respondent's community service was to be completed by December 30, 2009, but Respondent did not complete it until February 9, 2010. (Resp't Ex. 18 at 2;
see also
Tr. 72.) For instance, a February 2, 2010 letter from the Florida Department of Health states that “Dr. Reppy has not completed any term imposed by the final order and is considered out of compliance at this time.” (Gov't Exs. 20 & 22.) At hearing, Respondent testified that he had since submitted the paper he was assigned. (Tr. 72.) The paper warns practitioners against the dangers of Internet prescribing, gives case histories and reflects on what happened to Respondent. (Tr. 93.)

Respondent's drug course was to be completed within one year of December 26, 2007, the date of the final order. (Tr. 48; Gov't Ex. 15.) Respondent did not complete the drug course until December 9 through December 11, 2009. (Tr. 48.) He did not complete the records course or the laws and rules course until after September 2010. (Tr. 48.) As of the date of the hearing, however, Respondent had complied with all of his continuing education requirements. (Tr. 71; Resp't Ex. 18 at 2.)

Explaining his failure to meet all the deadlines set by the settlement agreement, Respondent asserted that in 2006 DEA placed on the Internet information related to his reprimand. (Tr. 50.) Thereafter, Respondent “became essentially unemployable” at any hospital or large clinic. (Tr. 50.) Consequently, Respondent had no income and was unable to pay the $3000 and $5000 cost of the courses he agreed to take. (Tr. 51.)

Per the settlement agreement, Respondent agreed to pay his $12,500 fine within two years of December 26, 2007. (Gov't Ex. 15; Tr. 49.) Respondent acknowledged that the settlement agreement and final order provided that Respondent would cease professional practice if he did not comply with the two-year deadline for paying the fine set therein. (Tr. 50;
see
Gov't Ex. 15 at 4.) Respondent testified that he has not yet paid the fine in full, but has practiced medicine continuously since the December 26, 2007 final order was issued, in part because he was unable to secure other employment, a problem he attributes partially to the DEA. (Tr. 49, 51.) Respondent testified that “unless I was ordered by the Department of Health I wasn't going to” cease practicing medicine, although he had agreed to do so in the October 2, 2007 settlement agreement. (Tr. 50.) The Florida Department of Health “agreed to the schedule that I'm paying it back on.”
48

(Tr. 49.) In mitigation, Respondent stated that he reported to a compliance officer who was aware of Respondent's continued practice. (Tr. 70.)

48
Respondent's Exhibit 18, dated October 20, 2010, indicates that Respondent made four periodic payments in February, May, July and September 2010, amounting to a total of $1500 paid out of $12,500 owed. (
See
Resp't Ex. 18 at 2.)

F. Respondent's Family Practice at Cosmopolitan

(a) Generally

In July or August of 2010, after leaving UPR, Respondent placed an ad in the local newspaper advertising his new family practice at his current employer, Cosmopolitan Clinic. (Tr. 88; Resp't Ex. 17.) The ad resulted in Respondent acquiring new, non-pain management patients. (Tr. 88.) Respondent has acted to change his practice from a pain management practice to a family practice. (Tr. 88-89.)

Respondent testified as to his documentation practices at Cosmopolitan. (
See
Tr. 80-87; Resp't Ex. 15.) In pertinent part, he testified to using a Consent for Chronic Opioid Therapy, and later using a Controlled Substances Narcotic Agreement. These documents enable Respondent to summarily dismiss any patient who seeks controlled substances from other physicians (Tr. 84), or who fails to notify the clinic in writing upon switching pharmacies, (Tr. 86; Resp't Ex. 15.) Respondent testified that as of the date of the hearing, he understood that he is required to dispense or prescribe controlled substances only for a legitimate medical purpose in the usual course of his professional practice. (Tr. 62.)

At his current practice at Cosmopolitan, Respondent's most frequently prescribed controlled substances are methadone and oxycodone. (Tr. 57.) Respondent prescribes methadone to treat chronic pain conditions unlikely to improve without surgery, and oxycodone for conditions where a short-acting medication is more appropriate. (Tr. 58-59.)

(b) Respondent's Current Patients at Cosmopolitan

[D.C.] has been a patient of Respondent for approximately thirteen to fourteen months for the treatment of degenerative spondylosis. (Resp't Ex. 19 at 9 ¶¶ 1-2.) During this time, Respondent met with [D.C.] approximately ten times. (
Id.
at ¶ 6.) Respondent physically examined [D.C.] at most visits and inquired whether [D.C.] was experiencing any new pain. (
Id.
at ¶ 7.) Respondent always took time with [D.C.] to discuss treatment options and [D.C.] never felt like the visit was rushed. (
Id.
at ¶ 9 & 10.)

[D.C.] believed [D.C.]'s former pain doctor was overmedicating [D.C.]. Respondent happily agreed to reduce the dosage of pain medication that [D.C.]'s former pain doctor was prescribing. (Resp't Ex. 19 at 9 ¶¶ 3-4.) Respondent gradually lowered the dosage over a period of months, ensuring that [D.C.] did not experience any new pain. (
Id.
at ¶ 5.) In fact, the reduction in [D.C.]'s pain has been dramatic. (
Id.
at ¶ 8.) Prior to treatment by Respondent, [D.C.] was taking 30 mg oxycodone five times per day, 10 mg methadone six times per day; and 2 mg Xanax two times per day. (
Id.
at ¶ 11.) Presently, however, [D.C.] considers [D.C.]'s pain to be under control and is taking 5 mg methadone once a day and one teaspoon of liquid oxycodone once a day. (
Id.
at ¶¶ 11 & 12.) The Xanax prescription is no longer needed. (
Id.
at ¶ 12.)

Another patient of Respondent, [C.K.], likes Respondent because he is a “straight up” sort of person; [C.K.] feels very comfortable with him. (Resp't Ex. 19 at 12 ¶ 3.) Respondent treats [C.K.] for back and neck pain stemming from an automobile accident, and also pain from a “bad knee,” for which surgery has been recommended. (
Id.
at ¶¶ 4, 5 & 6.) Respondent examines [C.K.] on each visit and discusses treatment options. (
Id.
at ¶ 7.) Respondent has worked with [C.K.] to reduce the

amount of [C.K.]'s pain medication. (
Id.
at ¶ 6.)

(c) Respondent's Current Employees at Cosmopolitan

Respondent's administrative employee Janice Vischio also submitted an affidavit. Although Ms. Vischio is not generally present when Respondent consults with patients, she does witness parts of some conversations. (Resp't Ex. 19. at 2 ¶ 4.) She states that Respondent personally sees patients, takes or reviews patient history and reviews patient office forms. (
Id.
at ¶¶ 5-7.) Moreover, Ms. Vischio has seen Respondent's handwritten notes in patient files. (
Id.
at ¶ 7.)

Conceding that she has not personally seen Respondent examine patients, Ms. Vischio states that she has witnessed him performing exams on occasion and that Respondent documents exams in his files. (
Id.
at ¶ 8.) Respondent takes twenty minutes or more with each new patient, and ten minutes for a follow-up visit, and sometimes exceeds the allotted time limit. (
Id.
at ¶ 9.) Respondent discusses treatment plans with patients, returns their phone calls and discusses their options with them. (
Id.
at ¶ 10.) Ms. Vischio has worked with many physicians in a variety of medical settings, and calls Respondent thorough in his documentation and diligent in his examinations and follow-up. (
Id.
at ¶ 13.)

Ms. Vischio also addressed the new patient intake process. New patients must either obtain a referral for pain management or have a prescription history or list from six months to one year before seeing Respondent. (Resp't Ex. 19 at 3 ¶ 11.) New patients must fill out new patient packet forms, including medical history and treatment. They must also undergo an MRI or have had one within two years. (
Id.
at ¶ 11.) All MRIs are verified by the MRI facility before Respondent sees them. (
Id.
at ¶ 11.)

Ms. Vischio stated that when appropriate, Respondent has reduced the amount of pain medication prescribed; has instructed Ms. Vischio to advise patients of the same; and has heard patients complain that Respondent reduced their pain medication levels. (
Id.
at ¶ 12.)

Ms. Adele Durina, Respondent's office manager and medical assistant, submitted an affidavit stating she enjoys working with Respondent and has worked with him since he began working at Cosmopolitan Clinic because Respondent is considerate of his patients and office staff. (Resp't Ex. 19 at 6 ¶ 3;
see also
Tr. 167.)

When Respondent sees a new patient, he takes twenty to thirty minutes or longer and is very thorough. (Resp't Ex. 19 at 6 ¶ 4.) He conducts a physical examination and records the findings in the patient's chart. (
Id.
at ¶ 5.) Follow-up visits are usually fifteen minutes but can be more. (
Id.
at ¶ 6.) Patients commonly comment that Respondent has taken an exceptional amount of time with them and answered questions and provided information that patients were unable to get from other doctors. (
Id.
at ¶ 7.) Respondent returns patient phone calls with unusual speed, which patients appreciate. (
Id.
at ¶ 8.)

Cosmopolitan Clinic often tests patients to ensure they are not taking medications that Respondent has not prescribed. (Resp't Ex. 19 at 7 ¶ 9;
see also
Tr. 167.) Patients who fail the screen are often dismissed immediately; others are given one, but only one, chance. (
Id.
at ¶ 9.)

V. The Parties' Contentions

A. The Government

The Government argues that Respondent prescribed controlled substances to thousands of individuals across the United States when he was only licensed to practice medicine in the state of Florida, thereby violating the laws of numerous states,
49

in contravention of 21 CFR 1306.04 (2010). (Gov't Br. at 5;
see
Tr. 11.) Respondent often based his decision to prescribe solely on a review of medical records submitted by individuals who were seeking a controlled substance, usually hydrocodone, a Schedule III narcotic. (Tr. 11-12.) Respondent did not conduct physical examinations on the majority of these individuals. (Tr. 12.)

49
The Government argues in part that I should give weight to findings in
United Prescription Services, Inc.,
in which “the Deputy Administrator found that Dr. Reppy violated the laws of California, Tennessee, Indiana and Louisiana * * * .” (Gov't Br. at 5-6.)

In addition, the Government argues that Respondent completed the conduct described above while employed by an Internet pharmacy “whose sole business was to allow people to visit a Web site, ask for a certain drug, get referred to a physician who would consult with them by telephone, look at medical records that had been submitted and then issue the prescribed drug to be filled by that pharmacy.” (Tr. 12.) The Government urges that Respondent had a legal duty to supervise his PA, Mr. Protheroe, and as a last resort, Respondent should have withdrawn from his employment if Mr. Protheroe failed to comply with Respondent's instructions. (Gov't Br. at 6.) The Government argues that Respondent's failure to do so “indicates Respondent is willing to permit the misuse of his DEA registration in order to maintain his employment,” rendering Respondent's registration contrary to the public interest. (
Id.
)

Finally, the Government argues that Respondent's testimony and demeanor at hearing evinced a lack of remorse and an attempt to blame others for his misconduct. “Had Respondent accepted responsibility and demonstrated remorse for his conduct, his claims that he reformed his prescribing practices might portend a change in conduct.” (
Id.
at 7.) Instead, the Government argues, registration is improper where “Respondent blames the legal community, a lawyer who had a financial interest in the pharmacy where Respondent's prescriptions were filled, a physician's assistant, the owner of [UPS], and even DEA for his failure to abide by the law.” (
Id.
)

B. Respondent

Respondent disputes the quantity of controlled substances that Respondent prescribed. (Tr. 12-13.) Pointing to the practitioner manual distributed by the DEA (
see
Resp't Ex. 6 at 15), Respondent also argues that of the five grounds stated therein upon which a COR may be revoked, the only allegation that the Government has made is that Respondent committed an act that would render the DEA COR inconsistent with the public interest. (Tr. 14.) Noting that 21 U.S.C. § 823 and 824 set forth factors for determining the public interest, Respondent argues that the Florida Board of Osteopathic Medicine has not made a recommendation regarding the issuance of a DEA registration. (Tr. 14; Resp't Br. at 21-22.) Moreover, Respondent argues that Respondent's experience in dispensing controlled substances has not been challenged, and in any event, Respondent has such experience. (Tr. 14; Resp't Br. at 22.) Additionally, Respondent has not been convicted under federal or state laws relating to the manufacture, distribution or dispensing of controlled substances. (Tr. 14; Resp't Br. at 22.)

As for the final factor, “such other conduct which may threaten the public safety,” Respondent argues that he is no threat to the public safety. (Tr. 19.) As an initial matter, Respondent argues that he is remorseful, has been rehabilitated and that since discontinuing his Internet prescribing practices, “no conduct which might threaten the public health and safety has been charged and proved.” (Resp't Br. at 22.) Respondent also notes that attorney Robert Carr assured Respondent that Respondent's

prescribing practices at UPR were within the scope of permitted practice. (Tr. 16; Resp't Exs. 3 & 4.) Additionally, Respondent argues that many of the prescriptions attributed to him were either forged or written by a PA. (Tr. 16; Resp't Br. at 24.) Moreover, Respondent argues that he was acting as a consultant to primary care physicians and was merely extending prescriptions for drugs that had already been prescribed by other physicians. (Tr. 17.)

Respondent further contends that he acquired adequate medical history documentation from Ms. Messick, and that Respondent, “when necessary, would speak by telephone with either the patient or the patient's primary care physician.” (Tr. 17-18.)

Respondent also notes that he was compensated on an hourly basis, so the number of prescriptions he wrote was not a factor in his prescribing habits. (Tr. 18.)

In addition, Respondent immediately terminated his Internet prescribing upon being notified that his actions were not in conformity with regulations. (Tr. 16.) He discontinued his prescribing habits far before any notice of these administrative proceedings. (Tr. 18.) He regrets his mistakes and apologizes for them. (Tr. 16, 18.)

In the nearly four years since Respondent engaged in Internet prescribing practices at UPR, Respondent argues that he has conformed his practice to meet all state and federal requirements, including requirements of the Florida Department of Health, Board of Osteopathic Medicine (Tr. 18, 19), and is converting his pain management practice to a family practice treating indigent and low-income patients. (Tr. 18.)

VI. Discussion and Conclusions

A. The Applicable Statutory and Regulatory Provisions

The Controlled Substances Act (CSA) provides that any person who dispenses (including prescribing) a controlled substance must obtain a registration issued by the DEA in accordance with applicable rules and regulations.
50

“A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner” with a corresponding responsibility on the pharmacist who fills the prescription.
51

It is unlawful for any person to possess a controlled substance unless that substance was obtained pursuant to a valid prescription from a practitioner acting in the course of his professional practice.
52

In addition, I conclude that the reference in 21 U.S.C. 823(f)(5) to “other conduct which may threaten the public health and safety” would as a matter of statutory interpretation logically encompass the factors listed in § 824(a).
53

50
21 U.S.C. 822(a)(2); 21 U.S.C. 802(10).

51
21 CFR 1306.04(a).

52
21 U.S.C. 844(a).

53

See Kuen H. Chen, M.D.,
58 FR 65,401, 65,402 (DEA 1993).

B. The Public Interest Standard

The CSA, at 21 U.S.C. 824(a)(4), provides, insofar as pertinent to this proceeding, that the Deputy Administrator may revoke a COR if she finds that the registrant's continued registration would be inconsistent with the public interest as that term is used in 21 U.S.C. 823(f). In determining the public interest, the Deputy Administrator is required to consider the following factors:

(1) The recommendation of the appropriate state licensing board or professional disciplinary authority.

(2) The applicant's experience in dispensing or conducting research with respect to controlled substances.

(3) The applicant's conviction record under federal or state laws relating to the manufacture, distribution or dispensing of controlled substances.

(4) Compliance with applicable state, federal or local laws relating to controlled substances.

(5) Such other conduct which may threaten the public health and safety.

As a threshold matter, the factors specified in Section 823(f) are to be considered in the disjunctive: the Deputy Administrator may properly rely on any one or a combination of those factors, and give each factor the weight she deems appropriate, in determining whether a registration should be re

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-25229. Public record. Not legal advice.