# Jana Marjenhoff, D.O.; Decision and Order

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-12135

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** May 20, 2015
- **Citation:** 80 FR 29067

## Text

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 12-62]
Jana Marjenhoff, D.O.; Decision and Order

On June 24, 2014, Chief Administrative Law Judge (ALJ) John J. Mulrooney, Jr., issued the attached Recommended Decision.
1

Respondent filed Exceptions to the Decision.

1
All citations to the Recommended Decision (hereinafter, cited as R.D.) are to the slip opinion as issued by the ALJ.

Having reviewed the entire record, including Respondent's Exceptions, I have decided to adopt the ALJ's findings of fact,
2

conclusions of law, and recommended order, except as discussed below. A discussion of Respondent's Exceptions follows.

2
I do not adopt the ALJ's findings that hydrocodone combined with acetaminophen is a schedule III controlled substance.
See, e.g.
, R.D. at 5 n.12;
id.
at 20 n.42. While that was correct at the time of the underlying events, as well as on the date of the issuance of the Recommended Decision, this drug has since been placed in schedule II of the Controlled Substances Act.
See Rescheduling of Hydrocodone Combination Products from Schedule III to Schedule II,
79 FR 49661 (2014).

I also do not adopt the ALJ's finding that the dispensing event which occurred on March 15, 2011 was based on a hard copy prescription which was dated March 11, 2011, or that the March 11 prescription was presented to different pharmacies on three occasions.
See
R.D. at 22-25. Rather, I find that the March 15 prescription was based on a telephone prescription which was dated March 15, 2014.
See
GX 6, at 3; GX 8, at 5. As for the hard copy prescription which the ALJ cited as the evidence to support this finding, I find the date to be illegible. However, this finding does not alter the disposition of this matter because I adopt the ALJ's finding that PA Francis, whose prescribing authority was used to obtain the prescriptions, credibly denied having issued Respondent any controlled substance prescriptions after the initial controlled substance prescription she issued on February 14, 2011.
See
R.D. at 55.

While I adopt the ALJ's finding that the testimony of Malana Diminovich, who testified that the PA had issued the controlled substance prescriptions, was not credible, as explained in my discussion of Respondent's fourth exception, I do not rely on his reasoning to the extent it is based on the suggested inconsistency between Diminovich's testimony that “Respondent was never observed to be under the influence of controlled substances during the time the two worked together” and “that she was aware that . . . Respondent was receiving controlled substance prescriptions from PA Francis.”
Id.
at 30-31.

In his decision, the ALJ found that “the only evidence received on the issue supports the Respondent's claim that she had an objective medical basis that could arguably have supported the prescribing of controlled substances,”
Id.
at 62. Given the ALJ's findings, it is notable that the record is devoid of evidence as to whether patients who are taking narcotics for legitimate pain would necessarily manifest symptoms consistent with abuse or intoxication.

In any event, the Government's case primarily focused on Respondent's obtaining of controlled substances through fraud or misrepresentation such as by presenting forged prescriptions. Thus, resolution of the allegations does not require proof that Respondent was abusing the controlled substances.

Also, I do not adopt the ALJ's findings related to the dates of the phone call in which Dr. Edmonds confronted Respondent as to whether she was forging prescriptions which were purportedly authorized by PA Francis. In the decision, the ALJ referred to this phone call as occurring in July 2011, following Respondent's positive urinalysis for opiates.
See
R.D. at 39. The evidence is clear, however, that this conversation did not occur in response to the July 2011 drug test, but in September 2011, after a pharmacist had notified PA Francis about the prescriptions and the latter had presented a printout from the State Prescription Monitoring Program to the clinic's Human Resources Manager, who raised it with Dr. Edmonds.
See
Tr. 195-202; 368; 831-32.

Exception One—Whether Respondent Was Denied Adequate Notice Because the ALJ Relied on Matters That Were Not Raised in the Order To Show Cause

Respondent argues that her rights under the Due Process Clause and the Administrative Procedure Act were violated because in the Show Cause Order, the Government alleged only that Respondent forged eight prescriptions and the ALJ proceeded to rely on “other matters of fact to support” his recommendation. Exceptions, at 2. Respondent does not, however, identify the specific facts of which she believes she was denied adequate notice, but rather, simply asserts that “the matters determined by the ALJ to support findings against Respondent as to factors four and five were not previously raised in the Order to Show Cause.”
Id.
at 3.

To the extent Respondent takes issue with the ALJ's decision because the Show Cause Order alleged only eight instances of forgery rather than the ten instances that the ALJ found proved (as well as the instance in which Respondent filled the first prescription a second time at a second pharmacy), her argument is not well taken. However, to the extent Respondent takes issue with the ALJ's finding that Respondent engaged in conduct actionable under factor five because she attempted to obstruct the pharmacist who questioned her prescription from contacting PA Francis, her argument is well taken.

One of the fundamental tenets of Due Process is that an Agency must provide a Respondent with notice of those acts which the Agency intends to rely on in seeking the revocation of its registration so as to provide a full and fair opportunity to challenge the factual and legal basis for the Agency's action.
See NLRB
v.
I.W.G., Inc.,
144 F.3d 685, 688-89 (10th Cir. 1998);
Pergament United Sales, Inc.
v.
NLRB,
920 F.2d 130, 134 (2d Cir. 1990);
see also
5 U.S.C. 554(b) (“Persons entitled to notice of an agency hearing shall be timely informed of . . . the matters of fact
and law
asserted.”) (emphasis added).

However, “ `[p]leadings in administrative proceedings are not judged by the standards applied to an indictment at common law.' ”
Aloha Airlines
v.
Civil Aeronautics Bd.,
598 F.2d 250, 262 (D.C. Cir. 1979) (quoted in
CBS Wholesale Distributors,
74 FR

36746, 36749 (2009));
accord Citizens State Bank of Marshfield
v.
FDIC,
751 F.2d 209, 213 (8th Cir. 1984). Accordingly, “the failure of the Government to disclose an allegation in the Order to Show Cause is not dispositive and an issue can be litigated if the Government otherwise timely notifies a [r]espondent of its intent to litigate the issue.”
CBS Wholesale,
74 FR at 36750. Thus, while the Agency has held that “the parameters of the hearing are determined by the prehearing statements,” consistent with numerous court decisions, the Agency has also recognized that even where an allegation was not raised in either the Show Cause Order or the pre-hearing statements, the parties may nonetheless litigate an issue by consent.
See Clair L. Pettinger,
78 FR 61592, 61596 (2013) (citing
Pergament United Sales, Inc.
v.
NLRB,
920 F.2d 130, 135-37 (2d Cir. 1990));
see also Duane
v.
Department of Defense,
275 F.3d 988, 995 (10th Cir. 2002) (discussing
Facet Enterprises, Inc.,
v.
NLRB,
907 F.2d 963, 974 (10th Cir. 1990); “we held that defendant had constructive notice of an alternate theory of liability not described in the formal charge when the agency detailed that theory during its opening argument and at other points during the hearing and when the defendant's conduct revealed that it understood and attempted to defend against that theory”).
3

3

See also Grider Drug #1 & Grider Drug #2,
77 FR 44070, 44077 n.23 (2012) (holding that while the Government did not provide adequate notice of its intent to litigate an allegation in either the Show Cause Order or its pre-hearing statements, where respondents “did not object that the allegation was beyond the scope of the proceeding and that they were denied adequate notice of it” and “fully litigated the issue,” the allegation was litigated by consent) (citing
Citizens State Bank,
751 F.2d at 213;
Kuhn
v.
Civil Aeronautics Bd.,
183 F.2d 839, 841-42 (D.C. Cir. 1950); and
Yellow Freight System, Inc.
v.
Martin,
954 F.2d 353, 358 (6th Cir. 1992)).

“The primary function of notice is to afford [a] respondent an opportunity to prepare a defense by investigating the basis of the complaint and fashioning an explanation that refutes the charge of unlawful behavior.”
Pergament United Sales,
920 F.2d at 135 (citation omitted). While the issue of whether an allegation “has been fully and fairly litigated [by consent] is so peculiarly fact-bound as to make every case unique,”
id.
at 136, “the simple presentation of evidence important to an alternative [allegation] does not satisfy the requirement” that a respondent be afforded with a full and fair opportunity to litigate the alternative allegation.
I.W.G.,
144 F.3d at 688 (quoting
NLRB
v.
Quality C.A.T.V., Inc.,
824 F.2d 542, 547 (7th Cir. 1987) (other citation omitted)).

“An agency may not base its decision upon an issue the parties tried inadvertently. Implied consent is not established merely because one party introduced evidence relevant to an unpleaded issue and the opposing party failed to object to its introduction. It must appear that the parties understood the evidence to be aimed at the unpleaded issue.”
Yellow Freight System, Inc.
v.
Martin,
954 F.2d 353, 358 (6th Cir.1992) (citation omitted). Accordingly, where the Government's case “focus[es] on another issue and [the] evidence of [an] uncharged violation [is] `at most incidental,' ” the Government has not satisfied its constitutional obligation to provide a full and fair opportunity to litigate the issue and it cannot rely on the incidental issue as the basis for imposing a sanction.
Pergament,
920 F.2d at 136 (quoting
NLRB
v.
Majestic Weaving Co.,
355 F.2d 854, 861-62 (2d Cir. 1966)).

Here, in the Government's initial prehearing statement, Respondent had notice that the Government intended to prove that all of the “prescriptions purportedly issued by PA Francis . . . after February 14, 2011 were not authorized by” her. ALJ Ex. 4, a 4. Moreover, in advance of the hearing, the Government provided Respondent with both the prescriptions it alleged were fraudulent as well as the search results from the New Mexico Prescription Monitoring Program, which listed each of the prescriptions which were purportedly issued by PA Francis to Respondent. ALJ Ex. 7, at 2. Furthermore, prior to the hearing, the parties engaged in extensive litigation over the admissibility of Government Exhibit 4, the exhibit containing the alleged fraudulent prescriptions, as well as over the PMP report. Finally, at the hearing, each of the prescriptions was offered into evidence and was the subject of testimony by witnesses for both parties, including Respondent who testified that each of the prescriptions had been authorized by PA Francis.

Thus, Respondent clearly had fair notice that the Government was alleging that she had obtained controlled substances on eleven occasions by presenting the first prescription (which was authorized by PA Francis) for filling at a second pharmacy, and by forging ten other prescriptions which were presented and filled by multiple pharmacies. Nor can Respondent claim that she lacked notice as to the legal basis for the allegations, as the Government alleged and argued that her conduct violated 21 U.S.C. 843(a)(3).
See
ALJ Ex. 1, at 1-2 (Show Cause Order ¶ 3); ALJ Ex. 59, at 24-25 (Govt's Proposed Findings of Fact and Conclusions of Law, hereinafter, Gov. Post-Hrng. Br.).

As noted above, Respondent also took exception to the ALJ's discussion at pages 62-64 of his decision. Therein, the ALJ concluded that Respondent had engaged in actionable misconduct which may threaten public health and safety,
see
21 U.S.C. 823(f)(5), based on his finding that “Respondent engaged in significant, intentional efforts to circumvent the efforts of [a pharmacist] in his attempt to execute his corresponding responsibility under the DEA regulations.” R.D. at 62.

Review of the Government's Prehearing Statement clearly shows that the Government provided Respondent with notice that it intended to elicit testimony from the pharmacist that he had received a faxed hydrocodone prescription for Respondent but that upon submitting the prescription information to Respondent's insurer, the pharmacy “received an insurance rejection message of `refill too soon'” and that a pharmacy technician had reported to the pharmacist “that the same prescription had been filled the day” before at another pharmacy. ALJ Ex. 4, at 3-4. The Government also provided notice that it intended to elicit testimony from the pharmacist that he “attempted to call PA Francis to verify the prescription, but the call was intercepted by the Respondent,” who told the pharmacist that she did not know the prescription had been sent to the other pharmacy and asked him to cancel the prescription.
Id.
at 4. The Government further provided notice that it intended to elicit testimony from the pharmacist that he had contacted the pharmacy which had already filled the prescription and determined that Respondent had picked up the prescription the day before.
Id.
At the hearing, both parties elicited testimony regarding this incident and the ALJ found the pharmacist's account credible.

Thus, Respondent clearly had notice that her conduct related to this incident would be at issue in the proceeding. Moreover, this conduct is clearly probative of the allegation that Respondent engaged in obtaining controlled substances through fraud, and the Government relied on the pharmacist's testimony in support of its contention that Respondent forged the prescriptions issued under the PA's registration. Gov. Post-Hrng. Br. at 26.

However, at no point in the proceeding did the Government contend that this conduct provided an independent basis to support a finding under factor five. Indeed, while in its

post-hearing brief, the Government argues that Respondent's “testimony demonstrated a lack of candor and should weigh against granting Respondent's application,” it did not argue that Respondent's acts in intercepting the pharmacist's phone calls and making a false statement to the pharmacist was separately actionable as misconduct under factor five.
See id.
at 30.

While I agree with the ALJ that engaging in intentional and significant acts to obstruct a pharmacist who is attempting to verify the validity of a prescription constitutes “conduct which may threaten public health and safety,” the Government never advanced this theory in the proceeding. Thus, Respondent was never provided with the opportunity to argue as to why her conduct did not rise to the level of intentional and significant acts such as to warrant sanction under factor five.
See Duane,
275 F.3d at 995. Accordingly, I hold that Respondent was not provided with fair notice that this conduct would also be considered under factor five.

However, in light of the extensive evidence that Respondent obtained controlled substances by fraud or deception on eleven occasions and the ALJ's finding that she has not accepted responsibility for her misconduct,
see
R.D. at 66, my rejection of his conclusion that Respondent engaged in actionable misconduct under factor five when she attempted to circumvent the pharmacist's effort to verify the prescription does not alter the ultimate disposition of this matter.
4

4
I do not adopt the ALJ's finding that the explanation Respondent provided on her DEA application lacked candor because she failed to include various information. R.D. at 68. At no point in this proceeding has the Government alleged that her explanation on the application was at issue in the proceeding, and at no point has it argued that her explanation lacked candor. In short, there is no basis for concluding that Respondent had fair notice that her explanation on the application would be at issue. Nor is there any basis for concluding that the parties consented to the litigation of the issue.

Exception Two—The ALJ Erred When He Found That Twelve Dispensing Events Had Occurred

Respondent also takes exception to the ALJ's findings that the prescriptions had resulted in the occurrence of twelve dispensing events, “each signif[ying] an episode wherein Respondent actually obtained prescription narcotics.” Exceptions, at 3 (citing R.D. at 20-28). According to Respondent, this finding is not supported by the record because “there was
no
evidence as to [the] actual `dispensing' of any prescriptions.”
Id.
In support of this contention, Respondent further notes that “a clear distinction was made during testimony between
filling
a prescription (
i.e.
[,] processing it for dispensing to a patient) and actually
dispensing
it to an individual” and that the Government never presented the evidence necessary to show that the prescriptions were actually dispensed,
i.e.,
the signature logs maintained by the pharmacy.
Id.

This argument is not persuasive. While it is true that a pharmacy's creation of a dispensing label for a filled prescription, as well as its inputting of data which was then submitted to the State's Prescription Monitoring Program, does not establish that the prescription was actually dispensed, Respondent testified that either she or members of her family picked up at least ten of the prescriptions before she attempted to change her story. Tr. 901-03, 921. Moreover, when asked by her counsel if she knew whether “there are some prescriptions waiting for you at some place,” she answered: “No, I don't think so, but.”
Id.
at 920. Respondent's testimony on this issue seems to go well beyond that of a faulty recollection induced by the passage of time and into the realm of being intentionally misleading.

Indeed, her attempt to deny that the prescriptions were picked up defies logic, given that at the hearing she maintained that all of the prescriptions had been authorized by the PA (Tr. 822, 899, 910) and were issued to treat a legitimate medical condition (Tr. 903, 922). Nor does it makes sense that having previously presented a prescription, she would, in the absence of having been told that the pharmacy had declined to fill it, then present a further prescription to another pharmacy without first picking up the already filled prescription.

In any event, even if Respondent (or her family) did not actually pick up any of the prescriptions, the evidence would still support a finding that she violated federal law. Here, the ALJ found that Respondent forged the PA's signature on the prescriptions and both the dispensing labels and the PMP report establish that the prescriptions were presented to the pharmacies. Thus, even if Respondent or her family members never picked up any of filled prescriptions, her conduct is still actionable as an attempt to obtain controlled substances by fraud or deception.
See
21 U.S.C. 843(a)(3) & 846.

Exception Three—The ALJ Failed To Consider Evidence That Another Person Committed the Acts

Respondent argues that the ALJ abused his discretion because he failed to consider evidence that two persons “had access to the necessary process and information to perform the alleged acts in [her] name without her knowledge and/or agreement.” Exceptions, at 9, 11. Respondent identifies these two persons as her husband, who was also taking hydrocodone, and Ms. Diminovich, Respondent's medical assistant at the clinic.
Id.
at 9-10.
5

5
Respondent also maintains that PA Francis had prescribed hydrocodone to her husband. Exceptions, at 10. PA Francis testified that while she had written prescriptions for Respondent's husband, which possibly included pain medication, she did not recall if these included narcotics. Tr. 249.

I reject the exception. Even ignoring the fundamental inconsistency between Respondent's contention and her testimony that the prescriptions were lawfully prescribed to her by PA Francis, the exception is unsupported by anything bordering on substantial evidence.

As for whether Respondent's husband was actually forging the prescriptions, even assuming that he had received hydrocodone prescriptions from PA Francis, no evidence was put forward that he had access to either the electronic medical records system (which included software for creating and printing a prescription) or to PA Francis's prescription pads. Thus, Respondent's theory is pure conjecture.

As for whether Ms. Diminovich was forging the prescriptions, it is true that she had access to the clinic's electronic medical records system. Moreover, it seems possible that she could have had access to the PA's prescription pad. However, while Respondent called Ms. Diminovich as a witness, Diminovich was never asked if she had forged any of the prescriptions; nor was any other evidence put forward that Dimonovich was forging prescriptions and using Respondent's name as the patient. Indeed, consistent with her theory that the prescriptions were authorized by PA Francis, Respondent elicited testimony from Ms. Diminovich that PA Francis “would fill out the script for [Respondent] personally” and either hand it to Respondent or leave it on her desk. Tr. 732. Respondents' theory that Ms. Diminovich was forging and filling the prescriptions and filling them in the former's name is thus not supported by anything more than the evidence that she had access to the clinic's prescribing

software.
6

Accordingly, I reject the exception.
7

6
While Ms. Diminovich testified that she had left the clinic after she was accused of forging a document, the record does not establish the nature of the document she allegedly forged. As for her testimony that PA Francis had written the prescriptions, as discussed under Exception Four, the ALJ did not find Ms. Diminovich's testimony credible when considered against the testimony of the Government's witnesses.

7
The Government notes the testimony of the pharmacist who questioned Respondent's prescription to the effect that “in order to pick up a controlled substance prescription, an individual would need to provide picture identification, which is then recorded in the[] pharmacy computer system.” Gov. Response to Respondent's Exceptions, at 9. While the Government attempted to introduce various documents which it represented as being pharmacy pick-up logs, it did not succeed. Moreover, the Executive Director of the New Mexico Pharmacy Board testified that while a “person picking up the controlled substance prescription must be identified with a government-issued photo ID,” the person need not be the actual patient. Tr. 446-7.

Exception Four—The ALJ's Credibility Determinations Were Arbitrary

Finally, Respondent argues that the ALJ arbitrarily discounted the testimony of Ms. Diminovich and that he ignored “the context” of her testimony. Exceptions, at 11. Respondent also contends that the Government's witnesses, who had “the exact same `issues' in their testimony, were called completely credible by the ALJ provided they blamed” her.
Id.

Respondent does not, however, take exception to the ALJ's findings as to her own testimony. Of note, the ALJ found that “Respondent's testimony throughout this hearing was punctuated by internal inconsistencies, implausibility, and chronic equivocation.” R.D. at 46. The ALJ further found that “there were several times where her answers seemed to evolve with objective evidence and dates she was confronted with.”
Id.

As for Respondent's contention that the ALJ arbitrarily discounted Ms. Diminovich's testimony, the argument is based largely on her testimony that she observed animosity between Respondent and Dr. Edmond (the co-owner of the clinic), PA Francis, and the clinic's human resources manager. Exceptions, at 11-12. To be sure, in explaining why he gave less weight to Ms. Diminovich's testimony, the ALJ relied on her failure to testify as to whether the animosity pre-dated or post-dated the discovery of the prescriptions at issue.
See
R.D. at 30. Nor was this the only reason the ALJ gave for giving less weight to her testimony.
See id.
at 30-31 (discussing Ms. Diminovich's testimony that she never observed Respondent being under the influence of controlled substances).
8

8
I acknowledge that it is plausible that Ms. Diminovich may never have observed Respondent being under the influence of narcotics while at the clinic. Respondent may have developed tolerance to the medication or she may have been diverting the narcotics to others. However, I need not adopt each of the ALJ's reasons for giving less weight to her testimony to adopt the ALJ's factual findings, which give no weight to her testimony that PA Francis wrote narcotic prescriptions for Respondent on “multiple” occasions. Tr. 733.

However, I need not decide whether these two reasons provide a sufficient basis to support the ALJ's credibility determination because the ALJ also explained that “much of Ms. Diminovich's testimony was too vague and lacking in detail to stand up against other record evidence.” R.D. at 31. As the ALJ further explained, while Ms. Diminovich testified that “she saw PA Francis prescribe controlled substances to the Respondent and hand the scripts over, [she] never sa[id] when or how often, and [did] not provide details about a single such event she recalls.”
Id.
at 31. So too, based on Ms. Diminovich's testimony that she had left the clinic after five years because she had been accused by a clinic employee of forging some undisclosed document, the ALJ concluded that she could not be viewed “as a completely impartial witness.”
Id.

In short, to resolve the factual dispute as to whether PA Francis had authorized the prescriptions or Respondent was forging them, the ALJ was required to make credibility determinations with respect to the testimony presented by the witnesses for the Government and those for Respondent. Notably, with regard to the testimony of the Government's witnesses, Respondent makes only the conclusory assertion that their testimony raised “the exact same issues” as her witnesses, Exceptions at 11, and fails to cite to any specific portions of their testimony which she asserts lacked credibility. The ALJ was, however, in the best position to observe the demeanor of the witnesses, and having considered the “consistency and inherent probability of the testimony,” I find no reason to reject the ALJ's credibility determinations and findings of fact.
Universal Camera Corp.
v.
NLRB,
340 U.S. 474, 496 (1951).

Accordingly, I reject the exception. I further adopt the ALJ's findings of fact and legal conclusions that with the exception of the February 14, 2011 prescription (which she filled that same day), Respondent violated 21 U.S.C. 843(a)(3) on eleven separate occasions by presenting the already-dispensed February 14, 2011 prescription to a second pharmacy for filling, as well as by forging the ten other prescriptions (or presenting the forged prescription to a second pharmacy).
See
R.D. at 52-55 (citing 21 U.S.C. 843(a)(3); 21 CFR 1306.04(a)). Moreover, while I adopt the ALJ's factual finding and legal conclusions that Respondent unlawfully obtained controlled substances pursuant to the aforesaid prescriptions,
see
R.D. at 55, even if Respondent did not obtain possession of the controlled substances in each instance, her misconduct is still actionable as an attempt to obtain controlled substances by fraud or misrepresentation.
See
21 U.S.C. 846. So too, I adopt the ALJ's legal conclusions with respect to the findings of the Iowa Board.
See
R.D. at 59-60.

I therefore adopt the ALJ's conclusion of law that the Government has established a
prima facie
case to deny Respondent's application.
9

R.D. at 65. Finally, because I agree with the ALJ's findings and conclusion of law that Respondent has not acknowledged her misconduct nor demonstrated that she had undertaken sufficient remedial steps to rebut the Government's
prima facie
case, as well as his finding that Respondent's actions were especially egregious, I will adopt his recommendation that I deny her application.

9
I do not adopt the ALJ's discussion of factor two to the extent it states that the factor manifests Congress's “acknowledgement that the . . . quantitative volume in which an applicant has engaged in the dispensing of controlled substances may be [a] significant factor[] to be evaluated in” the public interest determination. R.D. at 51. So too, I decline to publish the ALJ's discussion of the substantial evidence test, the degree of deference owed the ALJ's findings, and the scope of the Agency's discretion.
See Michael A. White,
79 FR 62957, 62957 n.2 (2014). It suffices to say that the Agency adheres to the principles set forth in
Universal Camera Corp.
v.
NLRB,
340 U.S. 474, 496 (1951).

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well as by 28 CFR 0.100(b), I order that the application of Jana Marjenhoff, D.O., for a DEA Certificate of Registration as a practitioner, be, and it hereby is, denied. This Order is effective immediately.

Dated: May 6, 2015.
Michele M. Leonhart,
Administrator.

Anthony S. Yim, Esq.,
for the Government

Billy R. Blackburn, Esq.,
for the Respondent

RECOMMENDED RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION OF THE ADMINISTRATIVE LAW JUDGE

Chief Administrative Law Judge John J. Mulrooney, II. On July 13, 2012, the Deputy-Assistant Administrator of the Drug Enforcement Administration (DEA) issued an Order to Show Cause (OSC) proposing to deny the application
1

of Jana Marjenhoff, D.O. (Respondent), for a DEA Certificate of Registration (COR). In its OSC, the Government avers that the Respondent's application should be denied because the granting of a COR to the Respondent would be inconsistent with the public interest as that term is defined under the Controlled Substances Act (CSA). 21 U.S.C. 823(f) (2012). On August 20, 2012, the Respondent, representing herself
pro se,
filed a timely request for a hearing.
2

1
A printed copy of the Respondent's on-line application was received into the record. Gov't Ex. 1.

2
In her brief, the Respondent points to the Agency's “extreme delay” in issuing an OSC almost a year and a half after her application for a DEA COR. ALJ Ex. 60, at 1. In this regard, it is worthy of note that the charges of misconduct that constitute the body of the Government's allegations in this matter relative to the Respondent's time practicing in New Mexico commenced a month
after
she submitted this application to receive a COR in New Mexico.

A hearing was originally conducted in this matter on February 5, 2013, in Arlington, Virginia (First Hearing). However, because the Administrative Law Judge presiding over that hearing unexpectedly retired before issuing a recommended decision, this case was reassigned to another Administrative Law Judge (Second Administrative Law Judge), who conducted a supplemental hearing on April 10, 2013, in Albuquerque, New Mexico (Supplemental Hearing). The Second Administrative Law Judge certified the record and forwarded a recommended decision to the Administrator.

The Administrator reviewed, reversed, and remanded the recommended decision issued by the Second Administrative Law Judge. In an order dated December 12, 2013 (Remand Order), the Administrator remanded the case for a new hearing to be conducted by another Administrative Law Judge,
3

and I designated myself to preside at the remanded proceedings.

3
The Administrative Law Judge presiding at the Supplemental Hearing found that the Respondent's exit from the hearing room, based on a medical emergency that resulted in her departure from the courthouse via ambulance and an attendant hospital stay, constituted an implied waiver of her right to be present at her hearing. Consequently, the Supplemental Hearing was conducted entirely
in absentia.
The (unarguably regrettable) decision by the Second Administrative Law Judge to proceed
in absentia
(not surprisingly) formed a significant basis (although clearly not the only basis) for the Administrator's decision to remand the case for a new hearing (ALJ Ex. 9, slip op. at 6) by a different Administrative Law Judge and, unfortunately, resulted in a significant additional delay in the adjudication of this matter. On the positive side, as a result of the Administrator's Remand Order, the Respondent, who represented herself at the First and Second Hearings, was the beneficiary of skilled, diligent counsel at the Hearing on Remand, where any perceived due process issues ascribed to the hearing
in absentia
could be and were addressed and cured.

At a January 14, 2014 on-the-record status hearing conducted in Albuquerque, New Mexico, the Respondent, representing herself
pro se,
4

signaled her intent to proceed with a new hearing. Current counsel filed a notice of appearance on February 10, 2014, and a request on his part for additional time to prepare was granted. ALJ Ex. 37, at 1 n.1. On April 22-23, 2014, a hearing was conducted in this matter in Albuquerque, New Mexico (Hearing on Remand).

4
From the outset and repeatedly throughout the course of these protracted proceedings, the Respondent was advised of her right to procure counsel. 21 CFR 1316.50 (2013). While she did retain counsel for a short period of time during the prehearing procedures prior to the First Hearing, that counsel withdrew from the case, and she opted to represent herself
pro se
for a relatively large swath of time during the pendency of the proceedings. The Respondent's fluctuating representation status also resulted in additional adjudication delays. During the course of the Supplemental Hearing, the Respondent initially sought to be represented by her (non-attorney) spouse under the theory that he falls within the regulatory definition of her employee within the meaning of 21 CFR 1316.50. The Administrator's Remand Order cites an absence of required findings associated with the Second Administrative Law Judge's denial of this request as an additional basis to justify remanding the case. ALJ Ex. 9, slip op. 5. During the course of the remanded proceedings, the Respondent withdrew her request to be represented by her husband at an on-the-record Status Hearing conducted on January 14, 2014, and, during the time afforded to her to do so, procured the representation of a qualified attorney.

The issue ultimately to be adjudicated by the Administrator in these remanded proceedings, with the assistance of this recommended decision, is whether the record as a whole establishes by substantial evidence that the Respondent's application for registration with the DEA should be denied on the grounds alleged by the Government.

After carefully considering the testimony elicited at the Hearing on Remand, the admitted exhibits, the arguments of the parties,
5

and the record as a whole, I have set forth my recommended findings of fact and conclusions of law below.
6

5
The due date that was set for the submission of closing briefs incorporated additional time that was requested by the Government. Tr. 976-79.

6
Because the December 12, 2013 Remand Order directed that a “new hearing” be conducted in this matter (ALJ Ex. 9, slip. op. 7), the testimony and evidence gathered in the previous hearings in this case, to the extent they were not re-introduced and received into the record, were not considered for purposes of deciding on the merits on remand. ALJ Ex. 29, at 4. Both parties were given the opportunity to file supplemental prehearing statements and to present evidence at the Hearing on Remand.
Id.
at 3-4. The testimony from the previous hearings (ALJ Ex. 8) was made available to the parties for purposes of cross-examination.

ALJ Ex. 29, at 4.

The Allegations

In its OSC and subsequent prehearing statements, the Government alleges that the COR application filed by the Respondent should be denied as inconsistent with the public interest. In support of the denial it seeks based on the public interest, the Government avers that the Respondent, “from February 2011 through January 2012, . . . forged approximately eight prescriptions for [herself] by using another individual's DEA registration number . . . without that person's knowledge, permission, or consent” in order to obtain controlled substances.
7

The Government alleged that the Respondent did so in violation of 21 U.S.C. 843(a)(3), 21 CFR 1306.04 (2013), and N.M. Stat. Ann. § 30-31-23 (West 2013).
8

7
ALJ Ex. 1, at 1.

8

Id.
at 2.

The Stipulations of Fact

The Government and the Respondent have entered into stipulations regarding the following matters:

(1) Respondent's prior DEA Certificate of Registration was BM1443681. In the absence of any renewal application, it expired by its own terms on January 31, 2006.

(2) Respondent does not currently possess a DEA Certificate of Registration.

(3) On January 17, 2011,
9

the Respondent applied for a DEA Certificate of Registration in Schedules II through V.

9
While the parties stipulated to an application date of January 17, 2011, the record evidence reflects an application date of January 14, 2011. Tr. 631-32; Gov't Ex. 1, at 1; Gov't Ex. 2, at 1. The 3-day variance regarding the application date presents no impediment to an adjudication of this matter on the merits.

(4) Respondent is licensed as an osteopathic physician in the State of New Mexico pursuant to license number A-1590-10. This license is active.
10

10
Although this stipulation by the parties originally contained the additional phrase “and set to expire by its own terms on July 1, 2013,” the fact that this date expired well before the commencement of the Hearing on Remand renders the relevance of this portion of the stipulation obsolete.

(5) All medications described in Government Exhibit 6 as being

prescribed to the Respondent are Schedule III controlled substances.
11

11
The parties reached this stipulation during the course of the hearing in this matter. Tr. 747-48.

The Evidence

The Government's Evidence

The Government's Witnesses

The Government's case-in-chief rested on the testimony of five witnesses: Physician's Assistant Raphaela Francis, John Alvis, the pharmacist-in-charge (PIC) of a Walmart Pharmacy located in Edgewood, New Mexico, Dr. Jeremy Edmonds, D.O., New Mexico Pharmacy Board (NM Pharmacy Board) Executive Director (Exec. Dir.) Larry Loring, and DEA Diversion Investigator (DI) Randall Bencomo.

Raphaela Francis testified that she is a physician's assistant (PA) who is currently licensed and practicing in New Britain, Connecticut, but that she had previously worked as a PA at the McLeod Medical Center (McLeod Medical) in Moriarty, New Mexico from 2008 until August 2012. Tr. 173-74, 215-16. PA Francis testified that, while working at McLeod Medical, she maintained a DEA COR, and she knew and worked with the Respondent. Tr. 174.

PA Francis stated that her working relationship with the Respondent at the time they worked together at McLeod was a good one, that the Respondent, who “had lots more medical experience,” was a mentor to her, and that Francis never observed behavior that she would classify as drug-seeking, impaired, or erratic from the Respondent at work. Tr. 219, 261. According to PA Francis, on February 14, 2011, the Respondent approached her at work and asked to be placed on her schedule for chronic neck pain. Tr. 175. The Respondent told Francis that she had made arrangements to see a pain management specialist in Albuquerque, but because the pain specialist, Dr. Pamela Black, could not see her for several weeks, she needed a single prescription for pain medication to tide her over for one month. Tr. 175-77, 182-84, 221-22. PA Francis testified that, consistent with McLeod Medical procedures, before she saw the Respondent as a patient, Leilani, the medical assistant assigned to Francis, took an initial medical history on a patient questionnaire, and that the Respondent, who had brought her own x-rays, was added onto Francis's patient schedule for the end of the day. Tr. 178-81, 219. Equipped with the completed patient questionnaire, PA Francis took her own history from the Respondent and reviewed the x-ray films. Tr. 181. Francis testified that she recalled that the x-ray imaging showed that the Respondent's neck had signs of prior surgery. Tr. 181-82, 220. She also remembered that the Respondent was complaining of headaches. Tr. 182. Francis recalled that, in response to her inquiry, the Respondent told her that hydrocodone had been effective for her in the past. Tr. 184. PA Francis's opinion was that, under the circumstances, the hydrocodone requested by the Respondent was appropriate as a short-term (not long-term) measure, so she prepared a prescription and handed it to the Respondent.
12

Tr. 184-85, 188, 227; Gov't Ex. 3. Francis was initially unambiguous in stating that this scrip was “the one and only prescription” she wrote for the Respondent. Tr. 185;
accord
Tr. 202, 240. When pressed, however, she recalled that she may have also treated the Respondent on another occasion for nausea with a non-controlled substance administered by injection in the office. Tr. 241, 243-44.

12
During her testimony, PA Francis mistakenly characterized this medication as being listed under Schedule II (Tr. 230), when, in fact, it is a Schedule III controlled substance. Stipulation 5.

According to PA Francis, the Respondent called off work two days after Francis saw her as a patient, telling Dr. Edmonds, the office supervising doctor/facility co-owner, that she had been to a hospital emergency room experiencing abdominal pain that was likely a reaction to the hydrocodone prescribed by Francis. Tr. 189-90, 193. Shortly after his conversation with the Respondent, Dr. Edmonds questioned PA Francis about the prescription and told her that, from that point forward, McLeod Medical employees were no longer permitted to write narcotic prescriptions for other employees. Tr. 192, 239. PA Francis testified that she complied with the new policy from the time it was conveyed to her. Tr. 194.

PA Francis had no more cause to consider her prescription to the Respondent until September 2, 2011, when she received a call from a pharmacist in Moriarty, New Mexico, informing her that a Walmart pharmacist named John Alvis needed to speak with her. Tr. 195-96. When Francis returned the call, Alvis told her he came upon some scrips purportedly written by Francis for the Respondent that he felt were likely forgeries. Tr. 197-99. Alvis went on to say that he was forced to utilize an intermediary pharmacist to contact Francis because multiple telephonic attempts to do so had been intercepted by the Respondent, and he advised Francis to secure a state prescription monitoring program (PMP) report on the Respondent and to contact the NM Pharmacy Board. Tr. 199-200, 202. When Francis queried the PMP system, she was surprised to learn that, although she had written only one controlled substance prescription for the Respondent, the system reflected that twelve had been dispensed. Tr. 200-02.

PA Francis testified that she brought the PMP report to the McLeod Medical human resources (HR) director who, in turn, notified Dr. Edmonds. Tr. 202-03.

Upon reviewing copies of the scrips listed in the PMP report and issued over her name and COR number after the single February 14, 2011 scrip she did write, PA Francis testified that not a single one bore her true signature and that all were forgeries. Tr. 205-06, 261. The witness indicated that she did not personally see anyone create these scrips, but she did know that they were not signed by her. Tr. 261.

Francis explained that, during the time she worked at McLeod Medical, scrips could be generated by hand-writing them on scrip pads or by producing them electronically (e-scrip) from the system that maintained the office medical records. Tr. 207. The e-scrip would be printed out on blue security paper loaded into a printer designated for that purpose and hand-signed by the prescriber. Tr. 207, 211, 226. Through the use of a drop-down list, the medical record system allowed any McLeod Medical employee with prescriber access to create an e-scrip for any patient in the practice over the name of any authorized prescriber in the practice who has seen that patient. Tr. 208, 215, 253-57, 260. Access to the system for prescribing controlled substances is password-protected, but as a McLeod Medical provider, the Respondent had complete access to the system, as did Francis, Dr. Edmonds, and a part-time nurse practitioner named Linda Agnes. Tr. 208-13, 217. The controlled substance scrip can be hand-carried by the patient, faxed to a pharmacy by a McLeod staff member,

13
or a staff member can even phone in a prescription to a pharmacy so long as there is a hard-copy follow-up scrip. Tr. 228-30.

13
Francis testified that McLeod Medical office policy on the disposition of hard copies of faxed prescriptions was inconsistent. When a scrip was faxed, sometimes the hard copy would also be handed to the patient, sometimes it would be shredded, and other times it would be retained in the patient's chart. Tr. 233-35.

There is no indication that PA Francis has anything to gain or lose by the outcome of this adjudication. In light of

the fact that Francis currently works for a different employer in a different state and no longer answers to Dr. Edmonds or McLeod Medical, the Respondent's argument that her credibility was suspect because she was somehow “in fear of her career” because she had been reprimanded
14

for writing a controlled substance prescription for the Respondent, and/or continued to do so after being directed not to is not supported in the record by anything beyond conjecture, and is simply unpersuasive. Her hearing testimony, much of which was corroborated by other witnesses, was sufficiently objective, detailed, plausible, and internally consistent to be considered fully credible in this recommended decision.

14
ALJ Ex. 60, at 6, 8, 15. Furthermore, the position that PA Francis was reprimanded at all flies in the face of the Respondent's testimony that no policy regarding the prescribing of controlled substance to other employees was ever put in place at McLeod. Tr. 721, 824.

The Government also elicited the testimony of John Alvis, the pharmacist-in-charge (PIC) at the Walmart Pharmacy in Edgewood, New Mexico (Walmart Pharmacy Edgewood), where he has worked as a pharmacist for the last twenty-nine years. Tr. 264-65. PIC Alvis testified that he was familiar with the Respondent because she was a local practitioner with whom he had professional contact, and because she and her family had been customers of his pharmacy. Tr. 265-67. In the early afternoon of August 31, 2011, PIC Alvis received a phone call from the Respondent who stated that her daughters were coming by the pharmacy to pick up prescriptions for themselves, and that she hoped to have them also pick up a prescription for her during the same visit. Tr. 266-67. The Respondent explained to Alvis that she would contact PA Francis to “get that [prescription] faxed in right away.” Tr. 267. Alvis also recalled that the Respondent told him that she was having trouble with her insurance and requested that the pharmacy bill her for the prescription in cash, without submitting a claim through her insurance carrier. Tr. 268-69. PIC Alvis testified that, while a request to have several medications picked up at once was not particularly out of the ordinary, a request to refrain from processing a scrip through a customer's insurance company where Medicare billing was not involved was not typical. Tr. 268-70. Alvis described such a request, even regarding Medicare billing, as “fairly rare.” Tr. 270.

Although Alvis apparently voiced no objection to the Respondent's request to process the scrip for cash, owing to the work volume of the day and the speed at which the faxed prescription reached the pharmacy, a staff member allowed the prescription to be electronically submitted as a claim to the Respondent's insurance company. Tr. 270-71. The Respondent's insurance company rejected the claim after determining that the refill was too early, based on medication that had already been dispensed to the patient. Tr. 270, 272. PIC Alvis testified that once he learned from the insurance company notice that the Respondent was attempting to fill a prescription for the same controlled substance too early, he had an obligation to investigate the issue. Tr. 279-80. At PIC Alvis's direction, the pharmacy staff member contacted
15

the Respondent's insurance company and was informed that the coverage rejection was based on the fact that the same medication had been dispensed to the Respondent at May Pharmacy the previous day. Tr. 275-76. Based on the information he had at that moment, PIC Alvis directed his staff member to reach out to PA Francis at McLeod Medical, the prescriber depicted on the scrip. Tr. 281. A McLeod Medical staff member indicated that Francis was unavailable and took a message to have Francis return the call to the pharmacy. Tr. 281-82.

15
The pharmacy employee was clearly an individual with no interest in these proceedings. PIC Alvis (a 29-year veteran pharmacist) testified that he was present and listening to his employee as she conducted these telephone inquiries at his direction, that he could hear her responses as the phone call was proceeding, that it is “standard practice” to rely upon this type of communication in the pharmacy setting, and that the employee who took the call had a duty to receive and convey this type of information accurately. Tr. 272-76. In short, even over the Respondent's timely objection, there was ample support in the record to find this hearsay evidence sufficiently reliable to rely upon it to a support substantial evidence determination in these administrative proceedings. 5 U.S.C. 556(d).
See Richardson
v.
Perales,
402 U.S. 389, 402 (1971) (holding that signed reports prepared by licensed physicians were correctly admitted at Social Security disability hearing);
Echostar Comm's Corp. v F.T.C.,
292 F.3d 749, 753 (D.C. Cir. 2002) (holding hearsay admissible at administrative hearing so long as it bears satisfactory indicia of reliability);
Bennett
v.
NTSB,
66 F. 3d 1130, 1137 (10th Cir. 1995) (holding hearsay admissible at administrative hearing to the extent it is reliable and probative);
Hoska
v.
Dep't of the Army,
677 F.2d 131, 138-39 (D.C. Cir. 1982) (holding hearsay admissible at administrative hearing where witness is disinterested, statements are consistent, and access is provided prior to hearing);
Mark P. Koch, D.O.,
79 FR 18714, 18717 (2014) (finding an affidavit sufficiently reliable to be considered as substantial evidence at a DEA administrative hearing);
Fred Samimi, M.D.,
79 FR 18698, 18712 (2014) (holding hearsay statements are admissible at DEA administrative proceedings and can constitute substantial evidence so long as they bear sufficient indicia of reliability).

Shortly after the phone message was left at McLeod Medical for Francis, the Respondent's daughters (whom Alvis recognized as established customers) arrived at Walmart Pharmacy Edgewood to pick up the Respondent's medication and some other medication. Tr. 282-83. Alvis told the daughters that he needed to check with the prescriber on their mother's prescription, and they left the pharmacy. Tr. 282-84. “Almost immediately” after the Marjenhoff daughters exited the pharmacy, PIC Alvis received a call from the Respondent, who informed Alvis that she understood he was trying to contact Dr. Black about her prescription. Tr. 284. PIC Alvis clarified that he was trying to reach PA Francis and that he had not yet heard back from her. Tr. 284. The Respondent explained to Alvis that there was some “confusion” because the prescription he was inquiring about was also sent to May Pharmacy without her knowledge, and that Alvis should “just disregard this prescription.” Tr. 284-85.

Following Alvis's conversation with the Respondent, a pharmacy staff member received a return call from someone at McLeod Medical, asking if the pharmacy still needed to speak with PA Francis.
16

Tr. 285. When the pharmacy technician told the McLeod Medical staff member that she still needed to speak with Francis, the call was placed on hold, and the Respondent picked up the line and identified herself. Tr. 825. The technician informed the Respondent that she was holding to speak with PA Francis, not with the Respondent. The Respondent told the technician, “I know it's concerning my prescription. I've already spoken to John [Alvis]. There's some confusion with that. I've told John [Alvis] to cancel that prescription, and so we're good,” and unilaterally ended the call by hanging up the phone. Tr. 286-88.

16
Alvis testified that he was present for the conversation and could even overhear the voice on the phone from McLeod Medical. Tr. 287.

PIC Alvis testified that this development deepened his level of concern about the prescription. Tr. 288. Additionally, Alvis compared the faxed scrip with prior, reliable examples on file and concluded that the purported signature of PA Francis on the scrip at issue was not consistent with the signatures found on the prior scrips. Tr. 302-04. The next morning, Alvis telephoned Kenny Romp, the pharmacist at May Pharmacy, who at one time worked for Alvis. Tr. 290-93. Pharmacist Romp indicated that he specifically recalled the prescription in question. He told Alvis that he remembered that the Respondent,

herself, picked up the medication, and that he also recalled it was a partial fill because May Pharmacy did not have the entire amount called for by the prescription in stock. Tr. 293-95. This revelation that the Respondent actually picked up the medication the day before her phone calls to Alvis flew in the face of the Respondent's representations on the phone that she did not know that her prescription had been filled at May Pharmacy, and her assertion that the early refill insurance notification was the result of some sort of an inadvertent mix-up. Tr. 295-96. The fact that the Respondent picked up her medication at May Pharmacy the day before she told Alvis she did not know it had been dropped off there left little doubt that there was more afoot than an innocent mix-up.

Alvis then devised a plan wherein he enlisted the help of a third local pharmacist, Reid Rowe, to reach out to PA Francis and relay a message that Alvis needed to speak to her privately and directly. Tr. 296-97. Alvis's plan was successful, and, the following day, he finally received a call from PA Francis. Tr. 298-99. Francis apologized for not calling back, and related to Alvis that she had actually been standing next to the Respondent when the pharmacy technician called. Francis explained to Alvis that based on what she heard of the call, she assumed that the matter had been resolved as a benign insurance issue. Tr. 301. When PIC Alvis conveyed the details of the current prescription and asked Francis to verify it and indicate whether he had her authorization to dispense, Francis informed him that she had not written a controlled substance prescription for any McLeod Medical employee since February 14, 2011. Tr. 301-02. When PIC Alvis let Francis know that his pharmacy was in possession of other scrips purportedly authorized by her on behalf of the Respondent and that he questioned the validity of the signatures, PA Francis asked him to provide copies. Tr. 304. Alvis faxed copies of some scrips that had been filled by his pharmacy on the Respondent's behalf over PA Francis's purported signature to the McLeod Medical HR manager. Tr. 305-09. The HR manager, in turn, sent PIC Alvis a copy of a corresponding complaint filed by PA Francis with the NM Board of Osteopathic Medical Examiners regarding the incident, which Alvis forwarded through his internal, corporate channels and to the NM Pharmacy Board. Tr. 309-11, 316. The prescription was then deactivated at Walmart Pharmacy Edgewood and not dispensed. Tr. 335.

PIC Alvis is a witness with no stake in the outcome of the case.
17

His testimony, which was largely corroborated by other sources in the record, was enhanced by the professionalism with which he executed his corresponding responsibilities as a pharmacist, and sufficiently objective, detailed, plausible, and internally consistent to be fully credited in this recommended decision.

17
In her brief, the Respondent argues that she and PIC Alvis “had previously been in strong disagreements . . . in regards to his lack of competence.” ALJ Ex. 60, at 4. However, the record is unsupportive. The Respondent testified that she “switched pharmacies, mainly over to May's [Pharmacy] because [she] had a problems with [Alvis], in that on a couple of occasions he prescribed the wrong medication to [her] patients, and [she] reprimanded him.” Tr. 935. Apart from the reality that pharmacists do not “prescribe” medication, the objective evidence of record is that, notwithstanding the multiple pharmacy options available to (and used by) the Respondent, she continued to patronize the Walmart Pharmacy Edgewood that Alvis managed. Additionally, the record demonstrates that the Respondent was not only sufficiently satisfied with Alvis that she selected his pharmacy on one of the occasions where she illegitimately utilized the February 14, 2011 prescription from PA Francis (Gov't Ex. 3, at 1), but she was sufficiently comfortable with her relationship with Alvis to call him on August 31, 2011 to request that his pharmacy refrain from submitting the prescription to her insurance company, and, once again, when Alvis declined to dispense the medication to her daughters. Tr. 268-69, 282. Indeed, the PMP/Marjenhoff Report reflects as many dispensing events through Walmart Pharmacy Edgewood as occurred at May Pharmacy. Gov't Ex. 6, at 2-3, 13-14.

The Government also presented the testimony of Dr. Jeremy Edmonds, D.O. Although Dr. Edmonds testified that is currently employed at Presbyterian Healthcare Services in Albuquerque, during all times relevant in these proceedings, he served as the medical director and co-owner of McLeod Medical and supervised the Respondent and all other staff members at McLeod. Tr. 358-60. Dr. Edmonds also testified that he is on the New Mexico Board of Osteopathic Medicine. Tr. 387.

Dr. Edmonds recalled that, when the Respondent was hired by McLeod Medical, she did not possess a COR. Tr. 382. According to Edmonds, the work-around for this issue was that the Respondent would see patients and “draft up” a controlled substance prescription over her name when necessary, but that Dr. Edmonds or PA Francis would co-sign the scrip and manually fill in their respective COR numbers. Tr. 382-85. Edmonds testified that all providers (including the Respondent) were “practicing primary care [medicine and] all treated very similar problems.” Tr. 386. Consistent with the testimony of PA Francis, Dr. Edmonds explained that prescriptions in the office could be generated by writing on a pad or through the e-scrip system, and that, while all employees had a sign-in password, only providers had the e-scrip access required to produce controlled substance scrips off the system. Tr. 415-21. Non-controlled prescriptions could be electronically signed and forwarded to pharmacies for filling, but controlled substance e-scrips required a manual signature by an authorized prescriber.
18

Tr. 424-28.

18
At another point during the proceedings, NM Pharmacy Board Executive Director Larry Loring confirmed that all controlled substance scrips must bear a hard signature to be effective. Tr. 458-61.

Dr. Edmonds, who (like PA Francis) characterized his working relationship with the Respondent as “good,”
19

recalled that, in February 2011, the Respondent called off work for one or two days, explaining to Edmonds on the phone that she had an adverse reaction to hydrocodone. Tr. 361. When the Respondent told Edmonds that PA Francis had supplied her with the hydrocodone prescription, Dr. Edmonds sat both Francis and the Respondent down and unambiguously informed them, in a conversation that he characterized as “stern . . . very direct,”
20

that “prescribing potentially habit-forming medications to a colleague or staff member” at McLeod Medical “is not tolerated and should not persist.” Tr. 361-62. Dr. Edmonds was precise and forceful in the manner in which he recalled the details of the meeting. In his words:

19
Tr. 359.

20
Tr. 392, 956.

[T]he discussion really went as follows. I walked into the room, and Dr. Marjenhoff and Raphaela Francis were both there. And I basically said that—I sat them both down, and I said that, you know, I understand that, Raphaela, you prescribed controlled substance to Dr. Marjenhoff, and I believe it was hydrocodone. And you had an adverse reaction to that. And I said, I want you to know that this is not good practice. I don't want this to continue. Don't let it happen again, and just don't do it. Those were my exact words. Just don't do it.

Tr. 955-56. According to Dr. Edmonds, although his tone at the outset of the meeting was “one of collegiality,” he stated that, “at the end, it was very stern in the tone.” Tr. 956.

Edmonds clarified that this directive, which applied to all controlled substances, was “mandatory” and not optional, and it was disseminated throughout the McLeod Medical staff by the HR manager and was subsequently reduced to writing in the McLeod Medical employee handbook. Tr. 363-64, 393-99, 956-57. Dr. Edmonds

further recalled that, at the time, he encouraged the Respondent to seek out the consultation of a pain and spine physician. Tr. 362.

Dr. Edmonds also testified that, about five months later, on July 21, 2011, he was notified that a random urinalysis sample collected from the Respondent two days earlier registered positive for an opiate. Tr. 364-66, 400. Edmonds recalled that on the day of the urinalysis, when the preliminary, in-office screen-test results indicated the presence of opiates, the Respondent approached him and said she felt she was “being singled out.” Tr. 971. Several days later, after receiving the lab confirmation that the Respondent had opiates in her system, Dr. Edmonds sought her out for an explanation. Tr. 963-64, 971. It was at that point (and not before) that the Respondent told Edmonds that she was receiving pain medication from a Dr. Pamela Black, a pain treatment specialist. Tr. 365, 391-92, 963-64, 971. When, in response to Edmonds's request to see the prescription, the Respondent brought him a bottle of morphine with a prescription label dated July 25, 2011 (six days after the urinalysis sample was collected),
21

Dr. Edmonds did not push the matter, extending what he euphemistically characterized as “professional courtesy.” Tr. 363-67, 400-01. He extended this courtesy, even in light of the fact that the portion of the form completed by the Respondent at the time she provided the urine sample that could have reflected that she was taking medications did not. Tr. 958, 964, 966-70. Thus, Dr. Edmonds knew that the Respondent could have indicated on the form that she was on controlled substances at the time she provided the sample, and could have told him that she was seeing Dr. Black when the in-office screen test popped positive (instead of indicating that she was being singled out), but did not avail herself of either opportunity.

21
Dr. Edmonds could not recall whether the bottle label reflected an original prescription or a refill. Tr. 366.

Two months after the positive urinalysis result, Dr. Edmonds was informed by the McLeod HR manager that personnel at Walmart Pharmacy Edgewood had advised her that the Respondent had attempted to fill, and may have filled, multiple illegitimate narcotic medication prescriptions over PA Francis's name and DEA COR number. Tr. 368-69. After a meeting with PA Francis and the HR manager where the three consulted a PMP report,
22

Edmonds set about attempting to contact officials at the local DEA office. A day or so later, Edmonds telephoned the Respondent at home. Tr. 369-70. In his testimony, Dr. Edmonds was clear that he asked the Respondent three questions: First, did she have a problem with drugs? Second, did she have an addiction problem? And, third, did she forge the prescriptions that Edmonds was inquiring about? Tr. 370, 959. According to Edmonds, the Respondent's answer to the first two inquiries was “no,” but, regarding the forgery question, the Respondent replied that she only did that (forged prescriptions) twice. Tr. 370, 959. Edmonds recalled that the Respondent's exact words were “I only did that twice.” Tr. 370, 408-09, 959. Although, in her hearing testimony, the Respondent indicated that she replied “twice” when asked how many times Francis prescribed controlled substances to her, Dr. Edmonds was clear, persuasive, and credible in relating his detailed recollection that he had no reason to ask the Respondent about the number of times Francis prescribed controlled substances to her, and that he did not ask that question. Tr. 959. Indeed, in the face of the six to eight scrips that Francis presented to Edmonds at that time as forged,
23

it would have made little sense for Edmonds to ask the Respondent such a question, and less sense for the Respondent (who claims that Francis was regularly and appropriately prescribing controlled substances to her) to answer “twice.” Additionally, to the extent that the Respondent believed that Dr. Edmonds's meeting on employee-to-employee controlled substance prescribing yielded only optional guidance, the answer “twice” and even the question would have made little sense. In this regard, Dr. Edmonds's recollection of events is more plausible and will be credited in this recommended decision.

22
Tr. 402.

23
Tr. 369.

Dr. Edmonds put the Respondent on administrative leave and placed two conditions on the Respondent's continued employment at McLeod Medical. First, she was to enroll in the New Mexico Monitored Treatment Program (MTP), a drug treatment monitoring program designed to evaluate, treat, and monitor physicians and healthcare providers.
24

Second, the Respondent was required to “mend the relationship that she had broken with [PA] Francis.” Tr. 370, 409-11. According to Dr. Edmonds, he discussed these conditions both orally and in writing with the Respondent, and she agreed to both. Tr. 371-72. It took a few weeks for the Respondent to affiliate with MTP,
25

but after she was in the program, MTP notified Edmonds that a treatment plan had been developed and that, at least in MTP's view, she could return to a work environment. Tr. 372-73. Shortly thereafter, however, Dr. Edmonds terminated her based on his determination she was not sufficiently committed to repairing her professional relationship with PA Francis. In Dr. Edmonds's words:

24
Tr. 374-76, 388-90, 410.

25
Tr. 378.

I fired [the Respondent] because she created a hostile work environment and eroded the trust between herself and her subordinate, Physician's Assistant Raphaela Francis.

Tr. 962. According to Dr. Edmonds, the Respondent's sole effort directed at relationship repair was an email she sent to Francis, wherein the former explained to the latter that she was sorry she chose her as her provider. Tr. 373-77, 414. Apparently, the tenor of the Respondent's email was just not what Edmonds was looking for in the repair of a professional relationship torn atwain by one coworker forging another coworker's name on controlled substance prescriptions, and, on October 24, 2011, approximately six weeks after she was placed on administrative leave, the Respondent was let go. Tr. 378-79, 415.

Dr. Edmonds is no longer associated with McLeod Medical. It is clear that he has no stake in the outcome of these proceedings, and his testimony presented as clear, certain, and unequivocal. In this case, the testimony presented by Dr. Edmonds, much of which was corroborated by other testimony in the record, was sufficiently objective, detailed, plausible, and internally consistent to be deemed fully credible in this recommended decision.

NM Pharmacy Board Executive Director (Exec. Dir.) Larry Loring also testified on behalf of the Government at the hearing. Loring testified that, prior to his appointment as the executive director, he had served for twenty-two years as a NM Pharmacy Board inspector. Tr. 440-41. As executive director, his responsibilities at the NM Pharmacy Board include the supervision of the Board's administrative and inspector personnel, as well as the assignment of cases to the inspection staff. Tr. 430-31. Additionally, Exec. Dir. Loring testified that he has been in charge of the New Mexico Prescription Monitoring Program (PMP) since its inception in 2005 until last year, when he hired a

manager to administer the program. Tr. 431. Loring explained that the PMP is a computer database maintained by the NM Pharmacy Board that is the repository for information on all controlled substances dispensed in New Mexico. Tr. 432, 434. Information is inputted into the PMP exclusively by the pharmacies across the state. Tr. 433. The pharmacies bear a legal obligation to accurately report dispensing data to the PMP,
26

and, at the time of these events, could do so at upload increments of up to seven days. Tr. 433-34, 444-45.

26
Exec. Dir. Loring explained that a disclaimer placed at the bottom of each page of reports generated by the PMP alerts the reader that the accuracy of the data perforce depends on the accuracy of the input by the pharmacies, and is not independently confirmed by the NM Pharmacy Board. Tr. 435-36.

Exec. Dir. Loring testified that he opened an investigation concerning the Respondent based on a phone call he received from PIC Alvis. Tr. 441, 450. When Alvis advised him that he believed he had identified a forged prescription made out on behalf of the Respondent, Loring ran a PMP report querying all controlled substance prescriptions issued by PA Francis where the Respondent is reflected as a patient for a two-year period commencing on October 12, 2010 (PMP/Marjenhoff Report),
27

and he used this report as a framework to contact pharmacies in furtherance of his investigation. Tr. 441-43, 447-48; Gov't Ex. 6. Exec. Dir. Loring testified that he went to each pharmacy listed on the PMP/Marjenhoff Report and obtained documents related to the transactions listed therein by supplying the prescription transaction numbers from the Report.
28

Tr. 443, 660; Gov't Ex. 8. According to Loring, he eventually turned over the documents he procured from the pharmacies to DEA DI Bencomo. Tr. 443, 661; Gov't Ex. 8.

27
Actually, the PMP/Marjenhoff Report introduced by the Government contains two reports generated from two distinct queries. The first query is a “Prescriber Rx History Report” wherein PA Francis's DEA COR number is queried and the prescriptions dispensed to the Respondent are culled out (Gov't Ex. 6, at 2-12), and the second is a “Patient Rx History Report” wherein the Respondent's name is queried for controlled substance medications dispensed on her behalf as the listed patient.
Id.
at 13-15.

28
The Respondent's objection to the documents supplied to Exec. Dir. Loring by the pharmacies was sustained to the extent that notations on the documents that lacked an adequate foundation were excluded from consideration. Tr. 679-81.

On the issue of the PMP/Marjenhoff Report, Exec. Dir. Loring did not know why there was no indication of a controlled substance prescription dispensed at May Pharmacy on August 30, 2011 (the day May Pharmacy partially dispensed the same medication the Respondent was seeking to procure from Walmart Pharmacy Edgewood on August 31, 2011).
29

Tr. 455-56, 465-66.

29
However, it is worthy of note that the Prescriber Rx History Report (Gov't Ex. 6, at 2-12) of the PMP/Marjenhoff Report admitted into evidence only queried prescriptions issued by PA Francis, not those issued by Dr. Pamela Black, the pain specialist the Respondent indicated she was seeing for pain medication, the prescriber she mentioned to PA Francis during their February 14, 2011 appointment, and the prescriber she asked PIC Alvis about when they spoke on the phone regarding her insurance-rejected prescription.
See
Tr. 183, 221-22, 366, 652-53, 810, 819, 836-40, 924-28, 947-49, 964-66, 973.

Exec. Dir. Loring presented as a thorough, impartial, methodical state regulator.
30

He has no stake in the outcome of the proceedings, and his testimony was sufficiently objective, detailed, plausible, and internally consistent to be fully credited in this recommended decision.

30
Notwithstanding the Government's curious assertion to the contrary (ALJ Ex. 59, at 11), Exec. Dir. Loring was never offered, qualified, or recognized as an expert in these proceedings. In fact, during the course of an extremely limited inquiry regarding whether particular scrip signatures were handwritten or machine generated, the Respondent's counsel decisively declined the opportunity to do so during the hearing, and made it clear that any mention of this witness as an expert “was just in jest.” Tr. 706-07, 710;
see also id.
at 459, 703. There was simply nothing unclear about this aspect of the proceedings during the hearing or thereafter.

The Government also presented the testimony of its lead investigator in this matter, Diversion Investigator (DI) Randall Bencomo, a fifteen-year DEA investigator and retired Air Force veteran. Tr. 474. DI Bencomo testified that his contact with this case began with a referral from his supervisor to investigate the Respondent's COR application due to an affirmative response on an application liability question. Tr. 475-77, 632. During the course of his investigation, Bencomo learned that the Respondent had a history of disciplinary action with the Board of Medical Examiners of the State of Iowa (Iowa Medical Board). Tr. 475, 477-78. In August of 2011, DI Bencomo telephonically contacted the Iowa Medical Board and was referred to its Web site (
medicalboard.iowa.gov
) where he located, printed out, and supplied this tribunal with a document styled “Settlement Agreement and Final Order” (Iowa Board Order/Settlement Agreement or IBO/SA), which related to an administrative action regarding the Respondent's Iowa medical license, and a corresponding document entitled “Statement of Charges” (Iowa Board Charging Document or IBCD), which provides the charges resolved in the IBO/SA. Gov't Ex. 9; Tr. 484, 552-59, 619-22.

DI Bencomo also testified that, in the first full week of September 2011, during his investigation of the Respondent's application, he was contacted by and met with PA Francis. Tr. 478. According to DI Bencomo, Francis indicated that she wished to lodge a complaint against the Respondent for forging her name on controlled substance prescriptions. Tr. 478-80. When Francis and Bencomo met, the former brought the PMP report she generated with her and recounted her experience with the Respondent and her interaction with PIC Alvis. Tr. 478-80. Bencomo recalled that PA Francis explained the machinations Alvis was forced to invent to finally contact her at McLeod Medical. Tr. 480-81.

According to Bencomo, utilizing very much the same approach as Exec. Dir. Loring, he contacted the pharmacies set forth in the PMP/Marjenhoff Report and sought documentation that corresponded to the dispensed prescriptions that Francis described as forged. Tr. 481. Bencomo testified that, as he was interacting with the pharmacies listed on the PMP, he came to learn that Exec. Dir. Loring from the NM Pharmacy Board had been pursuing the same documents from the same establishments, and had been provided with original documents by the pharmacies. Tr. 481-82. Bencomo stated that the pharmacies provided him with copies because the originals had already been provided to Exec. Dir. Loring. Tr. 481, 500, 507. DI Bencomo testified that he subsequently contacted Loring and that the latter transferred the original documents he had procured from the pharmacies into Bencomo's custody. Tr. 482-84, 501, 627-29.

DI Bencomo testified that, about a week after he spoke with PA Francis, he also interviewed PIC Alvis at the Walmart Pharmacy Edgewood. Tr. 484-85. Bencomo recollected that details supplied by Alvis were consistent with the account provided by to him by PA Francis. Tr. 486.

Among the documents presented by Bencomo was a pair of identical controlled substance scrips that he obtained from two different pharmacies and that reflect that both pharmacies filled the single prescription. Tr. 499; Gov't Ex. 3. Also received into the record were two exhibits containing copies of the documents collected by Exec. Dir. Loring and DI Bencomo from the pharmacies listed in the PMP/Marjenhoff Report.
31

Gov't Ex. 4; Gov't Ex. 8.

31
Although DI Bencomo testified that Government Exhibit 4 is an amalgam of copies of documents he received from Exec. Dir. Loring and

directly from the pharmacies listed in the PMP/Marjenhoff Report (Tr. 531), as his testimony progressed, it became apparent as he was describing another noticed exhibit that he was not altogether confident as to which documents he collected from the pharmacies and which he received from Loring.
See, e.g.,
Tr. 537-47. That said, Bencomo was consistent in testifying that every document in the exhibit came from one source or the other. To clarify the record, DI Bencomo brought the original documents provided by Exec. Dir. Loring to make them available for examination by the Respondent's counsel and this tribunal. Tr. 614, 627-31, 661-63; Gov't Ex. 8.

DI Bencomo's testimony was certainly not without its warts. There were points where his testimony lacked clarity in describing the manner in which he procured and maintained important documentation. He initially testified that he obtained documentation from the Iowa Board by implementing a download from its Web site, but was unable to testify about who he spoke with at the Iowa Board, what they said, when the conversation took place, or the Web site address he was referred to. Tr. 553-54, 556-57. Similarly, DI Bencomo testified that he collected documentation from several pharmacies regarding the Respondent's New Mexico prescriptions, but he was initially unable to tease out which documents were obtained by him and which were provided by Exec. Dir. Loring. Tr. 541-42. DI Bencomo was ultimately able to resolve numerous evidentiary issues, but only after being granted leave in the midst of his testimony to do so. Still, DI Bencomo, whose testimony was largely corroborated by other testimony and evidence, presented as an objective, experienced regulator who clearly has no stake in the outcome of the proceedings, and, taken as a whole, his testimony was sufficiently detailed, plausible, and internally consistent enough to merit full credibility here.

The Government's Documentary Evidence

The Government submitted documentary evidence in support of purported misconduct that took place in Iowa (Iowa Misconduct) and New Mexico (New Mexico Misconduct).

Iowa Misconduct Documents

The record contains an affidavit executed by the DEA's Chief of the Registration and Program Support Section, Richard A. Boyd, regarding the history of the Respondent's registration with the DEA (DEA Records Affidavit). Gov't Ex. 2. The DEA Records Affidavit states that the Respondent applied
32

for a DEA COR on January 14, 2011, at the address of 1108 U.S. Route 66 W., P.O. Box 1520, Moriarty, New Mexico 87035, and that, on January 17, 2011, the DEA assigned the Respondent with a COR control number (W11002696C) while her application was pending.
Id.
at 1. The DEA Records Affidavit further provides that the Respondent provided an affirmative answer to the third liability question contained in the COR application,
to wit:
whether she had “ever surrendered (for cause) or had a state professional license or controlled substance registration, revoked, suspended, denied, restricted, or placed on probation, or is any such action pending?”

33

Id.

32
Gov't Ex. 1.

33
DI Bencomo testified that this affirmative answer and explanation was the likely genesis of the referral of the Respondent's application to a DI for in-depth examination. Tr. 476-77.

The DEA Records Affidavit also contains language provided by the Respondent in her COR application explaining her liability-question response regarding any prior adverse state license history.

34

Id.
at 1-2. According to the language supplied by the Respondent
35

explaining the facts surrounding her Iowa license surrender:

34
During her testimony at the hearing, the Respondent attested to the veracity of this explanation and acknowledged that this information was supplied to DEA by her in connection with her application. Tr. 763-64, 937-39.

35
DI Bencomo testified that this language was taken from the Respondent's COR application, which is the position that the Respondent's counsel took at the hearing, and is consistent with the Respondent's testimony. Tr. 636-37, 639, 643-46, 937-39.

Incident Date: 03/15/2000, Incident Location: Corydon, IA, Incident Nature: Patient was on long-term opioids for Antiphospholipid antibody syndrome. Had consults from hematology and pain clinic, who suggested above meds. After 1 yr on meds, unknown person sent complaint to Iowa Board of Medicine that patient was “addicted to the pain medicine[.”] IA Board did not inform DEA, as no investigation was needed. Incident Result: I voluntarily took CME course on prescribing controlled substances from Vanderbilt University.

Id.

The Government also introduced a copy of the Iowa Board Order/Settlement Agreement entered into by the Respondent and the Iowa Board in 2005, as well as the corresponding IBCD, which set forth the charges. Gov't Ex. 9. The IBO/SA cites the Respondent for “
inappropriately and repeatedly
prescribing controlled drugs
to numerous patients
in violation of the laws and rules governing the practice of medicine.”
Id.
at 2 (emphasis added). The IBO/SA reflects that the Respondent became licensed in Iowa on April 5, 2000, which would be the month following the incident date she provided in her application explanation.
Compare
Gov't Ex. 9, at 1 ¶ 2 (memorializing that the Iowa Board and the Respondent agree that her state license was issued on April 5, 2000),
with
Gov't Ex. 2, at 1-2 ¶ 3 (noting that, in her COR application, the Respondent listed the Iowa Board license incident as March 15, 2000). Thus, even a cursory examination of the plain language of the two documents supports either two Iowa Board actions, only one of which is explained in the Respondent's COR application, or one Board action regarding which the Respondent supplied a puzzling date and a markedly incomplete/disingenuous explanation. Confusingly, in her brief, the Respondent clarified that Iowa administrative proceedings were initiated in March 2000 (which, if credited, would mean that proceedings to discipline her license commenced a month prior to the time she was even licensed in Iowa). ALJ Ex. 60, at 2. In their briefs, both parties are in apparent agreement that there was only one Iowa Board disciplinary action.
36

ALJ Ex. 59, at 29; ALJ Ex. 60, at 12.

36
Inasmuch as it is the Government who is the proponent of this evidence and the party that seeks to rely on the Iowa Misconduct to sustain the COR denial it seeks, it was incumbent upon the Government to provide a logical explanation.

The Iowa Board Charging Document
37

alleges that the Respondent violated Iowa's pain management rule, Iowa Admin. Code r. 653-13.2, which,
inter alia,
serves “to minimize the potential for substance abuse and drug diversion.” Iowa Admin. Code r. 653-13.2(1) (2013). At the DEA hearing, the Respondent adopted the IBO/SA as an accurate account of the events that occurred surrounding the incident, and official notice
38

was taken of the actions of the Iowa Board depicted in the IBO/SA and IBCD.
39

Tr. 625, 764-65.

37
Gov't Ex. 9, at 10.

38
See 5 U.S.C. 556(e).

39
At the hearing of this matter, the Respondent was afforded until May 28, 2014 (over 30 days) to challenge the factual basis of this official notice and declined to do so.

New Mexico Misconduct Documents

According to the testimony of Exec. Dir. Loring, the investigation he conducted on behalf of the NM Pharmacy Board (and ultimately the Government's case here) is structured from the PMP/Marjenhoff Report he generated from his query on the New Mexico PMP. Tr. 441-43, 447-48; Gov't Ex. 6. The PMP/Marjenhoff Report reflects twelve (12) dispensing events on scrips purportedly authorized by PA Francis that resulted in controlled substances being issued to the Respondent, or members of her family on her behalf, during a two-year period

commencing on October 12, 2010. Gov't Ex. 6. As discussed,
supra,
documents corresponding to the prescription transaction numbers on the PMP/Marjenhoff Report were independently procured from the relevant pharmacies by Exec. Dir. Loring and DI Bencomo. Gov't Ex. 4; Gov't Ex. 8. Exec. Dir. Loring turned over nine original prescription documents to DI Bencomo.
40

Tr. 687; Gov't Ex. 8. DI Bencomo's prescription documents, which appear to be a combination of Loring's documents supplemented with documents he procured independently of Loring,
41

related to twelve transactions. Gov't Ex. 3; Gov't Ex. 4. Each of the twelve dispensing events referenced in the PMP/Marjenhoff Report and its significance is discussed below.

40
Although Exec. Dir. Loring testified that he visited all pharmacies listed in the PMP/Marjenhoff Report and did not recall any of the pharmacies declining or being unable to comply with his documentary requests, he was unable to explain why he only turned over nine sets of prescription documents to DI Bencomo. Tr. 686-90.

41
DI Bencomo originally testified that his documents were copies collected from the pharmacies. Tr. 501-02. However, the notations on some of these documents are consistent with the notations made by Exec. Dir. Loring recording the location and date the scrips were picked up by him from the pharmacies. Tr. 664. In light of the fact that the Government presented other documents that were an amalgamation of the documents collected by DI Bencomo and Exec. Dir. Loring (Tr. 531), it is safe to assume that these prescriptions presented by DI Bencomo also include copies of documents obtained by Exec. Dir. Loring.

Dispensing Event 1: February 14, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated February 14, 2011 (same date) for Hydrocodone Bitartrate and Acetaminophen 10-500 mg
42

and issued on behalf of the Respondent, was dispensed at the Walmart Pharmacy Edgewood.
43

Gov't Ex. 6, at 3, 14. A copy of a scrip and corresponding dispensing label procured from the Walmart Pharmacy Edgewood by DI Bencomo
44

shares the same transaction number (#4411974), “issue” date, medication/dosage description
45

issued under PA Francis's COR number and purported signature, and patient (the Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 3, at 1.

42
Hydrocodone Bitartrate and Acetaminophen 10-500 mg is a Schedule III controlled substance. Stip. 5; 21 CFR 1308.13(e)(1)(iv).

43
According to a key included in the PMP/Marjenhoff Report, the pharmacy identification number associated with this dispensing event corresponds to the number assigned to the Walmart Pharmacy Edgewood. Gov't Ex. 6, at 11, 15.

44
These documents were not among the documents procured by Exec. Dir. Loring. Tr. 689-90.

45
The scrip reflects a prescription for Lortab 10-500 mg (Gov't Ex. 3, at 1), which is a brand name for Hydrocodone Bitartrate and Acetaminophen 10-500 mg.
Nursing97 Drug Handbook
351 (1997). The dispensing label reflects a prescription for Hydro/Apap 10-500 mg. Gov't Ex. 3, at 1. “Apap” is an abbreviation for Acetaminophen.
Nursing97 Drug Handbook
315.

On the present record, it is undisputed that the Respondent validly received this scrip from PA Francis,
46

that it was faxed to the Walmart Pharmacy Edgewood where it was validly dispensed. According to the PMP/Marjenhoff Report, a 30-day supply of medication was dispensed. Gov't Ex. 6, at 3, 14.

46
Tr. 688-89.

Dispensing Event 2: February 16, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated February 14, 2011 for Hydrocodone Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the Respondent, was dispensed at the Walgreens Pharmacy
47

in Edgewood, New Mexico (Walgreens Pharmacy). Gov't Ex. 6, at 3, 14. A copy of a scrip and corresponding dispensing label that was procured from the Walgreens Pharmacy by Exec. Dir. Loring shares the same transaction number (#369902), “issue” date, medication/dosage description under PA Francis's COR number and purported signature, and patient (the Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 1; Gov't Ex. 3, at 2.

47
According to a key included in the PMP/Marjenhoff Report, the pharmacy identification number associated with this dispensing event corresponds to the number assigned to the Walgreens Pharmacy. Gov't Ex. 6, at 10, 15.

A comparison of the copy of the scrip presented during the course of this dispensing event to the scrip presented to the Walmart Pharmacy Edgewood in Dispensing Event 1 (two days before Dispensing Event 2) shows that the same scrip was presented in both transactions.
Compare
Gov't Ex. 8, at 1,
and
Gov't Ex. 3, at 2,
with
Gov't Ex. 3, at 1. PA Francis credibly testified that she prepared and personally handed the scrip to the Respondent. Tr. 188. But there was no indication that the scrip was authorized for multiple pharmacy presentations to procure multiple doses of the same medication. On its face, the scrip does not even purport to authorize refills. Gov't Ex. 3. PA Francis also credibly testified that this was the one and only controlled substance prescription that she issued on behalf of the Respondent. Tr. 185, 202.

This dispensing event resulted in the Respondent receiving a 30-day supply of the medication, notwithstanding the fact that only 2 days earlier she had received a 30-day supply of the same medication (Dispensing Event 1). Gov't Ex. 6, at 3, 4. Thus, by presenting the same scrip twice, over the course of 2 days, the Respondent acquired an aggregate amount of medication that should have lasted 60 days.

Dispensing Event 3: March 1, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated February 28, 2011 for Hydrocodone Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the Respondent, was dispensed at May Pharmacy
48

in Moriarty, New Mexico (May Pharmacy). Gov't Ex. 6, at 3, 14. A copy of a scrip and corresponding dispensing label obtained from May Pharmacy by Exec. Dir. Loring shares the same transaction number (#9142353), “issue” date, medication/dosage description under PA Francis's COR number and purported signature, and patient (the Respondent) as the PMP/Marjenhoff report. Gov't Ex. 8, at 3; Gov't Ex. 4, at 1.

48
According to a key included in the PMP/Marjenhoff Report, the pharmacy identification number associated with this dispensing event corresponds to the number assigned to May Pharmacy. Gov't Ex. 6, at 7, 15.

At the hearing, PA Francis testified that she neither signed this scrip nor authorized this prescription. Tr. 205-06, 261.

This dispensing event resulted in the Respondent receiving a 23-day supply of the medication, notwithstanding the fact that only 15 days earlier she had received a 30-day supply of the same medication (Dispensing Event 1), and 13 days earlier she had received yet another 30-day provision of the same medication (Dispensing Event 2). Gov't Ex. 6, at 3, 14. Thus, even by the terms of the scrips (one of which was presented twice and the other forged), over the course of the 15 days that elapsed from Dispensing Event 1, the Respondent had received an aggregate amount of medication that should have lasted 60 days (45 extra dosage days) before this prescription was filled.

Dispensing Event 4: March 11, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated March 11, 2011 (same date) for Hydrocodone Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the Respondent, was dispensed at the Walgreens Pharmacy. Gov't Ex. 6, at 3, 14. DI Bencomo
49

procured a copy of a scrip
50

from the

Walgreens Pharmacy that shares the same “issue” date, medication/dosage description under PA Francis's COR number and purported signature, and patient (the Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 4, at 2. This exhibit does not bear a corresponding dispensing label.
Id.
Upon examination, this scrip was also used to effect Dispensing Events 5 and 6.
Compare
Gov't Ex. 4 at 2, 2a,
with
Gov't Ex. 8, at 5, 7,
and
Gov't Ex. 4, at 4, 4a, 5.

49
These documents were not among the documents procured by Exec. Dir. Loring. Tr. 689-90.

50
As initially supplied by the Government, this document was illegible and excluded. Prior to the commencement of the hearing, the Government

supplied a copy that was sufficiently enhanced through magnification that its content could be somewhat better deciphered and considered.

At the hearing, PA Francis testified that she neither signed this scrip nor authorized this prescription. Tr. 205-06, 261.

This dispensing event resulted in the Respondent receiving a 15-day supply of the medication, notwithstanding the fact that only 25 days earlier she had received a 30-day supply of the same medication (Dispensing Event 1), 23 days earlier she had received yet another 30-day provision of the same medication (Dispensing Event 2), and 10 days earlier she had received a 23-day supply of the same medication (Dispensing Event 3). Gov't Ex. 6, at 3, 14. Thus, even by the terms of the scrips (some of which were presented on multiple occasions and some of which were forged), over the course of the 25 days that elapsed from Dispensing Event 1, the Respondent had received an aggregate amount of medication that should have lasted 83 days (58 extra dosage days) before this prescription was filled.

Dispensing Event 5: March 15, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated March 15, 2011 for Hydrocodone Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the Respondent, was dispensed at the Walmart Pharmacy Edgewood. Gov't Ex. 6, at 3, 14. A physical copy of a document entitled “Telephonic Prescription,” completed by hand, with an attached corresponding dispensing label, was procured by Exec. Dir. Loring from the Walmart Pharmacy Edgewood. Gov't Ex. 8, at 5; Gov't Ex. 4, at 3. Loring testified that, based on his over two-dozen years of experience, a pharmacist must (and it must be a pharmacist, not a technician) complete this type of form when a controlled substance prescription is telephoned into the pharmacy. Tr. 672-74, 704-05. Although the prescription must be taken by a pharmacist and reduced to writing at the pharmacy end, the prescriber can have the prescription phoned in by an authorized administrative person. Tr. 704-05. In reviewing the documents associated with this transaction, Exec. Dir. Loring determined that the paperwork reflects that a controlled substance prescription was telephoned into Walmart Pharmacy Edgewood on March 15, 2011, that, the following day, it was followed up by a fax version of the scrip, and that the dispensing sticker indicates that the medication was processed for dispensing.
51

Tr. 674-77.

51
Exec. Dir. Loring testified that the presence of a dispensing sticker indicates that the medication was processed for dispensing, but not necessarily that it was dispensed. Tr. 676-77.

The record also contains a hard-copy of a scrip, dated March 11, 2011, with a signature placed above PA Francis's name as the prescriber. Gov't Ex. 8, at 5; Gov't Ex. 4, at 4, 4a. The dispensing label affixed to the hard-copy scrip shares the same transaction number (#4412395), medication/dosage
52

description issued under PA Francis's COR number and purported signature, and patient (the Respondent) as the entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 5; Gov't Ex. 4, at 4, 4a.

52
The telephonic and hard-copy scrip prescribe “Lortab,” a brand name for Hydrocodone Bitartrate and Acetaminophen.
Nursing97 Drug Handbook
351 (1997).

At the hearing, PA Francis testified that she neither signed this scrip nor authorized this prescription. Tr. 205-06, 261. Further, upon examination, it appears that the March 11 hard-copy scrip, utilized by facsimile to effect this dispensing event, is the same scrip utilized in Dispensing Events 4 (via facsimile) and 6 (via presentation of the original document).
53

A comparison of the copy of this scrip presented to the Walmart Pharmacy Edgewood to the copy of the scrip presented to the Walgreens Pharmacy (in connection to Dispensing Event 4) shows that the same document was presented to both pharmacies, and that the dispensing events were separated by four days.
Compare
Gov't Ex. 8, at 5,
and
Gov't Ex. 4, at 4,
with
Gov't Ex. 4, at 2. Furthermore, this same scrip was presented to, and filled at, another Walmart Pharmacy in Albuquerque six days later (Dispensing Event 6).
Compare
Gov't Ex. 8, at 5,
and
Gov't Ex. 4, at 4, 4a,
with
Gov't Ex. 8, at 7,
and
Gov't Ex. 4, at 5.

53
Upon careful examination or the original documents during the hearing, Exec. Dir. Loring opined that the scrip utilized for Dispensing Event 5 was the same scrip utilized for Dispensing Event 6. Tr. 681-85.

This dispensing event resulted in the Respondent receiving a 15-day supply of the medication, notwithstanding the fact that only 29 days earlier she had received a 30-day supply of the same medication (Dispensing Event 1), 27 days earlier she had received another 30-day provision of the same medication (Dispensing Event 2), 14 days earlier she had received a 23-day supply of the same medication (Dispensing Event 3), and 4 days earlier she had received a 15-day supply of the same medication (Dispensing Event 4). Gov't Ex. 6, at 3, 14. As of the date of this dispensing event, although only 29 days had elapsed since the first scrip was filled (Dispensing Event 1), the Respondent had accumulated an aggregate amount of medication sufficient to last 98 days (69 extra dosage days) before this prescription was filled.

Dispensing Event 6: March 21, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated March 11, 2011 for Hydrocodone Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the Respondent, was dispensed at the Walmart Pharmacy
54

in Albuquerque, New Mexico (Walmart Pharmacy Albuquerque). Gov't Ex. 6, at 3, 14. The copies of the scrip and corresponding dispensing label procured by Exec. Dir. Loring from the Walmart Pharmacy Albuquerque share the same transaction number (#4407701), “issue” date, medication/dosage description under PA Francis's COR number and purported signature, and patient (the Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 7-8; Gov't Ex. 4, at 5-6. The scrip copy received into the record is not obscured by the security features that indicate photocopy or facsimile transmission. Gov't Ex. 8, at 7-8; Gov't Ex. 4, at 5-6.

54
According to a key included in the PMP/Marjenhoff Report, the pharmacy identification number associated with this dispensing event corresponds to the number assigned to the Walmart Pharmacy Albuquerque. Gov't Ex. 6, at 12, 15.

At the hearing, PA Francis testified that she neither signed this scrip nor authorized this prescription. Tr. 205-06, 261. In the opinion of Exec. Dir. Loring, the signature on the scrip was manually signed (
i.e.,
not electronically generated). Tr. 706.

Upon examination, it appears that the scrip utilized to effect this dispensing event is the same scrip utilized via facsimile to consummate Dispensing Events 4 and 5.
Compare
Gov't Ex. 8, at 7-8,
and
Gov't Ex. 4, at 5-6,
with
Gov't Ex. 8, at 5,
and
Gov't Ex. 4, at 2, 2a, 4, 4a. Thus, this scrip, which bears the Respondent's name as the patient, was presented three times to three separate pharmacies to procure the controlled substances described therein.

This dispensing event resulted in the Respondent receiving a 15-day supply of the medication, notwithstanding the fact that only 20 days earlier she had received a 23-day supply of the same medication (Dispensing Event 3), 10 days earlier she had received a 15-day provision of the same medication (Dispensing Event 4), and 6 days earlier she had received a 15-day supply of the same medication (Dispensing Event 5). Gov't Ex. 6, at 3, 14. Thus, even by the terms of the scrips (some of which were presented on multiple occasions and most of which were forged), over the course of the 35 days that elapsed from the date of Dispensing Event 1 to this dispensing event, the Respondent had received an aggregate number of medication to last 113 days (78 extra dosage days) before this prescription was filled.

Dispensing Event 7: March 31, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated March 31, 2011 (same date) for Hydrocodone Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the Respondent, was dispensed at May Pharmacy. Gov't Ex. 6, at 3, 14. Copies of a scrip
55

procured from May Pharmacy by Exec. Dir. Loring and its corresponding dispensing label share the same transaction number (#9145722), “issue” date, medication/dosage description under PA Francis's COR number and purported signature, and patient (the Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 9-10; Gov't Ex. 4, at 7-8.

55
As initially supplied by the Government, this document was illegible and excluded. Prior to the commencement of the hearing, the Government supplied a copy that was sufficiently enhanced through magnification that its content could be deciphered and considered.

At the hearing, PA Francis testified that she neither signed this scrip nor authorized this prescription. Tr. 205-06, 261.

This dispensing event resulted in the Respondent receiving a 30-day supply of the medication, notwithstanding the fact that 10 days earlier she had received a 15-day supply of the same medication (Dispensing Event 6). Gov't Ex. 6, at 3, 14. Thus, even by the terms of the scrips (some of which were presented on multiple occasions and some of which were forged), over the course of the 45 days that elapsed from the date of Dispensing Event 1 to this dispensing event, the Respondent had received an aggregate number of medication to last 128 days (83 extra dosage days).

Dispensing Event 8: April 6, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated April 6, 2011 (same date) for Hydrocodone Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the Respondent, was dispensed at the Walmart Pharmacy Albuquerque. Gov't Ex. 6, at 3, 14. A copy of a scrip obtained by Exec. Dir. Loring from the Walmart Pharmacy Albuquerque and its corresponding dispensing label shares the same transaction number (#4407973), “issue” date, medication/dosage description under PA Francis's COR number and purported signature, and patient (the Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 11-12; Gov't Ex. 4, at 9.

At the hearing, PA Francis testified that she neither signed this scrip nor authorized this prescription. Tr. 205-06, 261.

This dispensing event resulted in the Respondent receiving a 15-day supply of the medication, notwithstanding the fact that 6 days earlier she had received a 30-day supply of the same medication (Dispensing Event 7). Gov't Ex. 6, at 3, 14. Thus, even by the terms of the scrips (some of which were presented on multiple occasions and most of which were forged), over the course of the 51 days that elapsed from Dispensing Event 1, the Respondent had received an aggregate amount of medication that should have lasted 158 days (107 extra dosage days) before this prescription was filled.

Dispensing Event 9: July 9, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated July 8, 2011 for Hydrocodone Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the Respondent, was dispensed at the Walmart Pharmacy Edgewood. Gov't Ex. 6, at 2, 13. A copy of a scrip, which was procured from the Walmart Pharmacy Edgewood by Exec. Dir. Loring, and corresponding dispensing label share the same transaction number (#4413861), “issue” date, medication
56

/dosage description issued under PA Francis's COR number and purported signature, and patient (the Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 13; Gov't Ex. 4, at 10.

56
Lortab, which is reflected on the scrip, is a brand name for Hydrocodone Bitartrate and Acetaminophen 10-500 mg.
Nursing97 Drug Handbook
351 (1997).

At the hearing, PA Francis testified that she neither signed this scrip nor authorized this prescription. Tr. 205-06, 261.

This dispensing event resulted in the Respondent receiving a 30-day supply of the medication. Gov't Ex. 6, at 2, 13. Thus, even by the terms of the scrips (some of which were presented on multiple occasions and most of which were forged), over the course of the 145 days that elapsed from Dispensing Event 1, the Respondent had received an aggregate amount of medication that should have lasted 173 days (28 extra dosage days) before this prescription was filled.

Dispensing Event 10: August 4, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated August 4, 2011 (same date) for Hydrocodone Bitartrate and Acetaminophen 10-325 mg and issued on behalf of the Respondent, was dispensed at May Pharmacy. Gov't Ex. 6, at 2, 13. A copy of a scrip and corresponding dispensing label acquired by Exec. Dir. Loring from May Pharmacy shares the same transaction number (#9157693), “issue” date, medication
57

/dosage description issued under PA Francis's COR number and purported signature, and patient (the Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 15; Gov't Ex. 4, at 11.

57
The scrip describes the medication as hydrocodone-acetaminophen. Gov't Ex. 8, at 15.

At the hearing, PA Francis testified that she neither signed this scrip nor authorized this prescription. Tr. 205-06, 261.

This dispensing event resulted in the Respondent receiving a 23-day supply of the medication, notwithstanding the fact that 26 days earlier she had received a 30-day supply of the same medication (Dispensing Event 9). Gov't Ex. 6, at 2, 13. Thus, even by the terms of the scrips (some of which were presented on multiple occasions and most of which were forged), over the course of the 171 days that elapsed from Dispensing Event 1, the Respondent had received an aggregate amount of medication that should have lasted 203 days (32 extra dosage days) before this prescription was filled.

Dispensing Event 11: August 9, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated August 9, 2011 (same date) for Hydrocodone/Apap 10-325 mg and issued on behalf of the Respondent, was dispensed at the Walgreens Pharmacy. Gov't Ex. 6, at 2, 13. A copy of a scrip DI Bencomo
58

procured from Walgreens Pharmacy shares the same “issue” date,

medication/dosage description under PA Francis's COR number and purported signature, and patient (the Respondent). Gov't Ex. 4, at 12. No dispensing label is attached to this document.
Id.

58
These documents were not among the documents procured by Exec. Dir. Loring. Tr. 687.

At the hearing, PA Francis testified that she neither signed this scrip nor authorized this prescription. Tr. 205-06, 261.

This dispensing event resulted in the Respondent receiving a 22-day supply of the medication, notwithstanding the fact that 5 days earlier she had received a 23-day supply of the same medication (Dispensing Event 10). Gov't Ex. 6, at 2. Thus, even by the terms of the scrips (some of which were presented on multiple occasions and most of which were forged), over the course of the 176 days that elapsed from Dispensing Event 1, the Respondent had received an aggregate amount of medication that should have lasted 226 days (50 extra dosage days) before this prescription was filled.

Dispensing Event 12: September 10, 2011

The PMP/Marjenhoff Report reflects that, on this date, a prescription, dated September 10, 2011 (same date) for Hydrocodone Bitartrate and Acetaminophen 10-325 mg and issued on behalf of the Respondent, was dispensed at CVS Pharmacy
59

in Albuquerque, New Mexico (CVS Pharmacy). Gov't Ex. 6, at 2, 13. A copy of a scrip procured by Exec. Dir. Loring from CVS Pharmacy reflects that the same prescription was purportedly issued under PA Francis's COR number and purported signature on September 8, 2011 (2 days prior to the “issue” date reflected in the PMP/Marjenhoff Report).
60

Gov't Ex. 8, at 17-18; Gov't Ex. 4, at 13-14. A corresponding dispensing label attached to the scrip, bearing the same transaction number as the entry in the PMP/Marjenhoff Report (#0354748), reflects a September 10, 2011 “issue” date, which is consistent with the PMP, but inconsistent with the date on the scrip.
Compare
Gov't Ex. 8, at 17-18,
and
Gov't Ex. 4, at 13-14,
with
Gov't Ex. 6, at 2, 13.

59
According to a key included in the PMP/Marjenhoff Report, the pharmacy identification number associated with this dispensing event corresponds to the number assigned to the CVS Pharmacy. Gov't Ex. 6, at 11, 15.

60
This anomaly remains unexplained by any Government witness, but likewise received no attention from the Respondent. In light of the other data in the scrip and dispensing label, which correspond to the data on the PMP/Marjenhoff Report, this discrepancy does not undermine the weight afforded to the exhibit. Still, it would have been helpful for the Government, as the proponent of the exhibit to explain this aspect of the document.

At the hearing, PA Francis testified that she neither signed this scrip nor authorized this prescription. Tr. 205-06, 261. Exec. Dir. Loring testified that, in his opinion, the signature on the scrip was handwritten (
i.e,
not computer generated). Tr. 711.

This dispensing event resulted in a 23-day supply of the medication. Gov't Ex. 6, at 2, 13. Thus, even by the terms of the scrips (some of which were presented on multiple occasions and most of which were forged), over the course of the 208 days that elapsed from Dispensing Event 1, the Respondent had received an aggregate amount of medication that should have lasted 248 days (40 extra dosage days)
61

before this prescription was filled.
62

61
It is worth noting that these amounts do not include whatever controlled substance medication the Respondent was receiving through prescriptions issued by Dr. Black and/or members of Dr. Black's staff.

62
The Respondent's argument that “the spacing of prescriptions follows a pattern one would expect to see if a professional was prescribing a controlled substance for a medical reason” (ALJ Ex. 60, at 11) is completely bereft of any competent opinion of record to support it. No expert testified about the type or quantities of medication that could be appropriate here. On this record, the only comparison that can competently be examined is the dosages of medication set forth on forged, illegitimate scrips, and the Respondent regularly exceeded even those fictitious levels.

The Respondent's Evidence

The Respondent's case-in-chief was presented through her own testimony and the testimony of her former medical assistant at McLeod Medical, Malana Diminovich.

Malana Diminovich testified that she has been a certified medical assistant for eleven years, and currently works at the ABQ Health Partners (ABQ) in Albuquerque, New Mexico. Tr. 719-20. Prior to beginning her current position at ABQ, Ms. Diminovich worked as a medical assistant at McLeod Medical for approximately five years, and left when the McLeod Medical HR manager accused her of forgery. Tr. 720-21, 739. Diminovich explained that she worked as the Respondent's medical assistant and that, during the Respondent's tenure at McLeod Medical, there were approximately six providers, each one of whom generally had two assigned medical assistants. Tr. 721, 739. Ms. Diminovich explained that she worked towards the back of the office in a space she shared with the HR manager, PA Francis, and the Respondent. Tr. 721-22. Diminovich testified that she observed some level of tension between the Respondent and the HR manager, PA Francis, and Dr. Edmonds. Tr. 741-42.

Ms. Diminovich stated that, when they worked together, she knew the Respondent's medical record system passcode and that she had sufficient computer access with that passcode to print out a prescription for controlled substances under the Respondent's name. Tr. 727. She testified that the scrips would then be printed out on blue (security-feature) paper by a printer located in Dr. Edmonds's office towards the front of the building. Tr. 724-26. Diminovich believed that Dr. Edmonds and PA Francis handled most of the patients requiring narcotics prescriptions,
63

but on those occasions when the Respondent would need to issue a controlled substance prescription, Ms. Diminovich would log into the computer system, select the Respondent's name as the provider, print out the prescription, and then present it to Dr. Edmonds for his signature. Tr. 730-31.

63
Tr. 728-29.

Diminiovich testified that she was aware that PA Francis was prescribing pain medication for the Respondent, and testified that she even remembered being in the room at times when Francis prepared the scrips. Tr. 732-33. She explained that she would see PA Francis write out a prescription and then either hand it to the Respondent or leave it on her desk. Tr. 732. Diminovich even remembered “an occasional time” when, at Francis's direction, she called prescriptions into pharmacies for the Respondent. Tr. 733.

Ms. Diminovich testified that she has been trained as an emergency medical technician (EMT) and that she received training on how to detect when an individual is under the influence of medication. Tr. 735-36. Applying her training as a volunteer EMT to her observations of the Respondent, Diminovich testified that she had no reason to believe that the Respondent was under the influence of narcotics or inappropriately seeking medication. Tr. 733-38.

There are several aspects of Ms. Diminovich's testimony that tend to somewhat diminish the extent to which it can and should be relied upon. Although the witness testified that she observed “animosity” between the Respondent and Dr. Edmonds, PA Francis, and the McLeod Medical HR manager, this testimony is not consistent with other credible evidence of record. Francis and Edmonds both described their working relationship

with the Respondent as “good,”
64

and the Respondent described Dr. Edmonds as “a very kind man” and “very polite and professional.” Tr. 825-26. Additionally, the fact that the Respondent chose PA Francis to be her principal medical provider
65

when there were other choices in the office, including the “very kind” Dr. Edmonds,
66

tends to undermine any claim of tension between Francis and the Respondent. Furthermore, Diminovich never indicates whether the animosity she perceived predated or postdated the discovery at McLeod that the Respondent was the beneficiary of about a dozen forged controlled substance prescriptions on office scrip stationary. The testimony regarding office tension is vague and not entirely consistent with reliable record evidence.

64
Tr. 219, 359.

65
Tr. 805.

66
Tr. 825.

Similarly, there are issues regarding Diminovich's testimony that, based on her training as an EMT, she is able to competently conclude that the Respondent was never observed to be under the influence of controlled substances during the time the two worked together at McLeod Medical. Tr. 733-34. Diminovich testified to having received some EMT training related to recognizing individuals under the influence of controlled substances. Tr. 735-37. Even if her competence in this area were to be conceded,
arguendo,
it conflicts with the Respondent's own testimony that she was receiving and (presumably) taking controlled substances from PA Francis, Dr. Black, and one of Dr. Black's associates during this time, as well as the Respondent's opiate-positive random urinalysis result. Tr. 364-66, 392, 400. Even the Respondent does not contest the fact that during this time she was taking controlled medications. Tr. 802-03, 810-11, 820-23, 838-39, 907-08, 914, 926. Diminovich's testimony in this regard even stands at some odds with her own testimony that she was aware that the Respondent was receiving controlled substance prescriptions from PA Francis. Tr. 732-33. If Ms. Diminovich's expertise to divine controlled substance use by patients is assumed at face value, and the Respondent's posture that she validly received controlled substances from PA Francis and Dr. Black's office is credited, it raises the issue of where the controlled substances she did receive were going. Put simply, either the Respondent was taking the prescribed medication and Diminovich (not withstanding her purported expertise) was unable to accurately perceive that, or Diminovich was correct, the Respondent had no opiates in her system, and the medication was being diverted for another purpose. A third (more likely) alternative is that Ms. Diminovich has no idea whether there were controlled substances in the Respondent's system, and that she testified in this manner in an effort to help the Respondent defend herself in these proceedings. To the extent that Ms. Diminovich's testimony was offered to establish that the Respondent never appeared to slur her words, sway in her gait, or in other ways appear over-medicated, this issue was never alleged by the Government or raised by the evidence.

Additionally, much of Ms. Diminovich's testimony was too vague and lacking in detail to stand up against other record evidence. She said she saw PA Francis prescribe controlled substances to the Respondent and hand the scrips over, but never says when or how often, and does not provide details about a single such event she recalls. In a similar vein, she says there was animosity, but never provides any timeframe, specific conversations, incidents, or areas of contention. She says that the Respondent did not seem like she was under the influence of medication but disregards the fact that, by every bit of uncontested evidence, the Respondent was receiving powerful controlled medications in significant doses. Additionally, by virtue of the fact that, like the Respondent (by whom she was supervised, and apparently amicably so), Ms. Diminovich left McLeod Medical in the midst of allegations of forgery leveled against her, it would be difficult to view her as a completely impartial witness regarding similar allegations related to her former supervisor during the time when they worked together. Tr. 739. In short, Ms. Diminovich's testimony was lacking in detail, inconsistent with other credible record evidence, and not entirely objective or plausible. While there were certainly credible aspects of he

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-12135. Public record. Not legal advice.