# Lawrence E. Stewart, M.D.; Decision and Order

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-19595

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** August 17, 2016
- **Citation:** 81 FR 54822

## Text

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 16-14]
Lawrence E. Stewart, M.D.; Decision and Order

On June 1, 2016, Administrative Law Judge (ALJ) Charles Wm. Dorman issued the attached Recommended Decision. Therein, the ALJ found that on multiple occasions, Respondent issued prescriptions outside of the usual course of professional practice and which lacked a legitimate medical purpose for schedule II controlled substances such as Norco 10/325mg (hydrocodone/acetaminophen) and Hycodan (hydrocodone/homatropine cough syrup),
1

the schedule III controlled substance phentermine, and the schedule IV controlled substance alprazolam, in violation of 21 CFR 1306.04(a). See R.D. at 34-60.
2

1
Effective October 6, 2014, combination hydrocodone products including both Norco and Hycodan were transferred from schedule III to schedule II of the Controlled Substances Act.
See Schedules of Controlled Substances: Rescheduling of Hydrocodone Combination Products from Schedule III to Schedule II,
79 FR 49661. Thus, at the time Respondent issued some of the Norco and Hycodan prescriptions, the drug was a schedule III controlled substance. This, however, has no consequence for my decision.

2
All citations to the Recommended Decision are to the slip opinion as issued by the ALJ.

More specifically, the evidence showed that Respondent prescribed the controlled substances to his girlfriend knowing that she was seeking the drugs to abuse them. The evidence also showed that while some of the prescriptions were issued in the name of Respondent's girlfriend, in multiple instances, Respondent issued prescriptions, including multiple prescriptions for Hycodan, listing his girlfriend's two children, who were then three and five years old respectively, as the patients, and that Respondent did so knowing that his girlfriend intended to use the cough syrup because she enjoyed drinking it. The evidence further showed that on multiple occasions, Respondent issued prescriptions for Norco
3

to undercover agents who posed as acquaintances of his girlfriend, knowing that the drugs would then be provided to his girlfriend and that Respondent further instructed his girlfriend as to how her purported acquaintances should present as having headaches so that he could document a reason in the their charts for having issued the prescriptions.

3
The evidence also showed that at one of the undercover agent's visits, Respondent also gave her a prescription for Hycodan cough syrup.

The ALJ also found that on multiple occasions, Respondent violated Rule 1.4 of the Mississippi State Board of Medical Licensure's Rules by failing to document in his girlfriend's chart the diagnosis or justification for issuing the prescription, as well as required information including the drug's name, the dose, strength and quantity. R.D. at 37-39 (citing Miss. Code R. § 30-17-2640:1.4; also citing
id.
§ 30-17-2640:1.16; Miss. Code §§ 73-25-29(3) and (13)). The ALJ also made a similar finding with respect to four hydrocodone cough syrup prescriptions Respondent issued in the names of his girlfriend's children. R.D. at 46-47 (Rx's issued on 6/17/14, 7/23/14, 11/19/14);
id.
at 49 (Rx 11/3/14).

With respect to the phentermine prescriptions Respondent issued to his girlfriend, the ALJ found that he “completely failed to comply” with the Board's Rule 1.5 because he did not prescribe “adjunctively with caloric restriction,” “never conducted and recorded an initial comprehensive evaluation” including “a thorough patient history or physical examination,” and never recorded required histories, nor her height, weight, BMI, body measurements, and vital signs. R.D. 43. The ALJ also found that Respondent did not conduct a re-evaluation of his girlfriend every 30 days as required by Rule 1.5.
Id.
Finally, noting that Rule 1.5 generally requires that the patient have a BMI greater than 30 in order to justify prescribing phentermine, the ALJ observed that Respondent's girlfriend testified that she had gone from 135 to 121 pounds and that she presented at the hearing “with a slender body type.”
Id.
The ALJ thus explained that “[a]fter observing [her] appearance,” he found “it difficult to comprehend . . . how Respondent could have possibly believed that [she] has a high enough BMI to justify” prescribing weight-loss medication.
Id.
The ALJ thus found that Respondent violated 21 CFR 1306.04(a), the Board's Rule 1.5, and Mississippi Code sections 73-25-29(3) and (13) when he prescribed phentermine to his girlfriend.
Id.
at 44.

Based on these findings, the ALJ concluded that Respondent had engaged in “an egregious level of intentional diversion” and that the Government had satisfied its
prima facie
burden of showing that “Respondent's continued registration would be inconsistent with the public interest.” R.D. at 61. Because “Respondent offered no evidence that he accepted responsibility for his misconduct or reformed his ways,” the ALJ found that he “failed to rebut the Government's
prima facie
case.”
Id.
The ALJ thus recommended that I revoke Respondent's registration and deny any application to renew or modify his registration.
Id.

Respondent filed Exceptions to the ALJ's Recommended Decision. Thereafter, the ALJ forwarded the record to me for Final Agency Action.

Having considered the record in its entirety, including Respondent's Exceptions, I have decided to adopt the ALJ findings of fact, conclusions of law, and recommended Order. However, before I address Respondent's Exceptions, I deem it necessary to address the ALJ's ruling on the admissibility of the FDA package insert for Hycodan (GX 4).

On motion of Respondent's counsel, the ALJ ruled inadmissible Government Exhibit 4, which the Government represented was the FDA package insert for Hycodan.
4

Tr. 422, 427. The basis of Respondent's objection was that the exhibit contains “little more than generalizations and medical opinions” and that the ALJ's prehearing statement required the parties to disclose “the names and credentials and opinions of medical experts . . . who would be offering medical opinions in this case.”
Id.
at 420. Respondent's counsel further argued that “[t]he government did not identify any expert capable of being cross-examined on any of these opinions” and that “[t]here is no reason to believe that [the Exhibit was] authored by a physician, much less do we know whether the author had credentials to offer these opinions.”
Id.

4
There is no dispute that the Exhibit was what the Government represented it to be—a copy of the package insert. Nor is there any dispute as to how the document was obtained.

After the Government argued that the document was the FDA package insert, which is included “with every drug purchased or sold,”
id.
at 422, Respondent argued that the copyright of the document was the manufacturer and that “we don't know who authored it, or what their credentials were, but it's a self-interested marketing pharmaceutical company” that is “trying to sell their [sic] medicine” and while the company has a “self-interest[] to comply with a federal regulation . . . “[i]t doesn't mean that the content is government-sanctioned.”
Id.
at 422-23. Respondent thus asserted that the

document was “just not reliable enough.”
Id.
at 426.

The ALJ sustained the objection but provided no explanation as to his reason for doing so. I conclude, however, that the Exhibit was admissible. As the FDA has explained, the package insert “is part of the FDA-approved labeling,” and “[t]he FDA approved label is the official description of a drug product, which includes indication (what the drug is used for); who should take it; adverse events (side effects); instructions for uses in pregnant women, children, and other populations; and safety information for the patient.”
See
U.S. Food and Drug Administration,
Drugs@FDA Instructions: Health Information,
available at
www.fda.gov/Drugs/InformationOnDrugs/ucm079450.htm
(accessed August 4, 2016). The FDA's approval of a drug label follows extensive clinical trials, including trials which examine the safety and effectiveness of a drug and are part of the process for approving the drug for marketing.
See
Food and Drug Administration,
Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products,
71 FR 3922 (2006) (Final Rule) (“A prescription drug product's FDA-approved labeling (also known as `professional labeling,' `package insert,' `direction circular,' or `package circular') is a compilation of information about the product, approved by FDA, based on the agency's thorough analysis of the new drug application (NDA) . . . submitted by the applicant. This labeling contains information necessary for safe and effective use.”).

Under the Food, Drug and Cosmetic Act, a drug “shall be deemed to be misbranded . . . [u]nless its labeling bears . . . such adequate warning against use . . . by children where its use may be dangerous to health.” 21 U.S.C. 352(f). Moreover, introducing a misbranded drug into interstate commerce is a violation of 21 U.S.C. 331(a). Thus, there are ample incentives for drug manufacturers to provide reliable information in the package insert. Based on the foregoing, I find that there are sufficient indicia of reliability to support the admission of the document into evidence and make it a part of the record.
5

I further find that this evidence is probative on the issue of whether the Hycodan prescriptions issued by Respondent in the name of his girlfriend's children were for a legitimate medical purpose.
See, e.g., Medicine Shoppe-Jonesborough
v.
DEA,
300 Fed. Appx. 409, 413 (6th Cir. 2008) (holding that dispensing contraindicated controlled substance is evidence of 21 CFR 1306.04(a) violation).

5
Hearsay evidence is admissible in administrative proceedings, provided it is relevant and material and supported by sufficient indicia of reliability.
See, e.g.,

Mireille Lalanne,
78 FR 47750 (2013).

As further noted above, in opposing the admission of the package insert, Respondent represented that it contained expert opinions from unidentified persons whom he could not cross-examine and thus was being offered in violation of the ALJ's Prehearing Order. However, in its pre-hearing statement, the Government provided notice that it intended to offer the Exhibit and pursuant to the ALJ's Prehearing Ruling, the Government was required to provide the document to Respondent by 2 p.m. on February 12, 2016. ALJ Ex. 9, at 2. No claim is made that the Government failed to comply with the ALJ's ruling.

While Respondent asserts that he was unable to cross-examine the persons who wrote the package insert, he made no attempt to subpoena either an FDA official involved in reviewing the document or an employee from the manufacturer who was involved in preparing it. Moreover, Respondent could have sought to challenge the reliability of the document by producing evidence (whether through expert testimony or studies) disputing the package insert's statement regarding the risks of prescribing the drug to children less than six years of age. Respondent, however, produced no evidence which calls into question the reliability of the statements contained in the insert.

Notably, the Hycodan package insert's safety information includes the following warning: “The use of HYCODAN is not recommended for use in children less than 6 years of age because of the risk of fatal respiratory depression.” GX 4, at 2. Notably, Respondent's girlfriend's daughter was not even five years old when he wrote the first Hycodan prescription in her name. GE 55, at 1-2. Respondent also wrote Hycodan prescriptions in the name of his girlfriend's son who was then three years old.
Id.
at 3-4; 11-12. In short, neither of the children who were listed as the patients on the Hycodan prescriptions was six years of age when Respondent wrote the prescriptions. Thus, I consider this as additional evidence which supports the conclusion that Respondent lacked a legitimate medical purpose and acted outside of the usual course of professional practice when he issued the Hycodan prescriptions in the names of his girlfriend's children. 21 CFR 1306.04(a). I now turn to Respondent's Exceptions.

Exception I—The Government Failed “to Prove Violations of State or Local Laws Sufficient to Demonstrate Danger to the Public Interest.”

Respondent argues that the ALJ failed to give proper weight to the decision of Dr. Craig, the Medical Board's Executive Director, to close the Board's investigation of his prescribing practices without recommending the initiation of a formal action against his medical license. Exceptions, at 1-2. According to Respondent, the Board reviewed “all such clinical and prescription records” for his girlfriend and her children, and it “decided that there was no evidence of any breach of any medical standard of care sufficient to bring any administrative charge against [him] related to any such prescription.”
Id.
at 2. He also asserts that Dr. Craig “determined that there was not even sufficient professional reason to issue [him] an informal warning as to any such prescription for pain medication.”
Id.

Respondent then argues that “[r]ather than . . . defer[] to the professional judgments made by [Dr. Craig as to] whether State laws were violated by [him], the ALJ['s] Recommendation proceeds to interpret and apply those State laws without the benefit of any medical evidence, or any medical opinion in any form, anywhere in the record of this case.”
Id.
And noting the ALJ's discussion that “`DEA has not required expert testimony to establish a violation of 21 CFR 1306.04(a) in cases where a prescriber engaged in drug deals, where there were notable differences between patients' medical records and diagnoses, and where a prescriber falsified patients' charts,' ” Respondent contends that the Government did not allege that he engaged in any such conduct.
Id.
at n.1.

I reject the Exception. As for the contention that Dr. Craig reviewed the medical records and prescriptions and did not find the evidence sufficient to initiate a proceeding against his license, Respondent ignores the credited testimony that the Board terminated its investigation upon the request of the Mississippi Bureau of Narcotics (MBN) after the latter informed the Board that it was conducting a criminal investigation. Tr. 60 (testimony of MBN agent); GE 3, at 2 (Board Complaint form entry dated “3-20-15” stating “MBN has asked that we hold off on doing anything to this doctor because they are working a criminal case on him”).
6

A Board investigator also testified that “it's customary for [the Board] to back off [of an investigation] and let a criminal agency pursue their [sic] case” and that Dr. Craig was aware of the criminal investigation. Tr. 210.

6
The Board's investigation involved interviewing Respondent, as well as reviewing his girlfriend's patient file and a PMP report of her controlled substance prescriptions. GE 3, at 4-6. Notably, the Board's investigator testified that the Board did not interview Respondent's girlfriend. Tr. 196.

Moreover, even then the Board's letter cautioned Respondent “that authorizing

refills for Phentermine/Adipex without the benefit of a medical examination is strictly prohibited by the Board's Rules and Regulations” and specifically quoted the Board's Rule 1.5(E), which states that: “[a] patient continued on a controlled substance in schedule III, IV, V for the purpose of weight reduction or the treatment of obesity should undergo an in-person re-evaluation once every 30 days.” GE 3, at 1. Finally, as the evidence shows, subsequent to the Board's closing of its investigation, Respondent again issued multiple controlled substance prescriptions to purported acquaintances of his girlfriend knowing that the drugs would subsequently be provided to his girlfriend. Accordingly, I reject Respondent's contention that the Board's closing of its investigation reflects its “professional judgments” that Respondent acted within the bounds of accepted professional practice when he prescribed to Respondent and the undercover officers.

Under both this and his subsequent exception, Respondent argues that the ALJ's decision is unprecedented because the Government put forward no expert testimony to support the conclusion that he violated 21 CFR 1306.04(a) in issuing the various prescriptions. However, contrary to Respondent's understanding, numerous decisions of both the federal courts in criminal cases and this Agency have held that expert testimony is not necessarily required to prove that a physician acted outside of the usual course of professional practice and lacked a legitimate medical purpose in issuing a controlled substance prescription.
See United States
v.
Pellman,
668 F.3d 918, 924 (7th Cir. 2012) (quoting
United States
v.
Armstrong,
550 F.3d 382, 388-89 (5th Cir. 2008) (“While expert testimony may be both permissible and useful, a jury can reasonably find that a doctor prescribed controlled substances not in the usual course of professional practice or for other than a legitimate medical purpose from adequate lay witness evidence surrounding the facts and circumstances of the prescriptions.”));
Armstrong,
550 F.3d at 389 (“Jurors have had a wide variety of their own experiences in doctors' care over their lives, thus and expert testimony is not necessarily required for jurors to rationally conclude that seeing patients for as little as two or three minutes before prescribing powerful narcotics is not in the usual course of professional conduct.”).
7

See also T.J. McNichol,
77 FR 57133, 57147-49 (2012),
pet. for rev. denied,
537 Fed. Appx. 905 (11th Cir. 2013);
Morris W. Cochran,
77 FR 17505, 17519-20 (2011) (holding, without expert testimony, that prescriptions lacked a legitimate medical purpose where physician noted in patient medical records that patients had no pain, did not document any findings to support a diagnosis, and yet diagnosed patients as having chronic pain);
Robert F. Hunt,
75 FR 49995, 50003 (2010) (holding, without expert testimony, that physician lacked a legitimate medical purpose based on statements made during undercover visits and falsification of chart).
See also Jack A. Danton,
76 FR 60900, 60904 (2011).

7

See also United States
v.
Word,
806 F.2d 658, 663 (6th Cir. 1986);
United States
v.
Larson,
507 F.2d 385, 387 (9th Cir. 1974);
United States
v.
Bartee,
479 F.2d 484, 488-89 (10th Cir. 1973);
State
v.
Moody,
393 So.2d 1212, 1215 (La. 1981).

Thus, while expert testimony is typically necessary to establish a violation of 21 CFR 1306.04(a) “ `where a physician ma[kes] some attempt to comply with various state medical practice standards and the adequacy of those efforts is at issue,' . . . the facts and circumstances surrounding the issuance of the prescription may nonetheless establish a violation even without expert testimony.”
McNichol,
77 FR 57147-48 (quoting
Danton,
76 FR at 60904 & n.13). Accordingly, in
McNichol,
the Agency found a violation proved, notwithstanding that the ALJ had rejected the testimony of the Government's Expert, because while the physician had gone through the motions of a physical exam, the physician's “comments manifest[ed] that he knew that [the patient] was an abuser of controlled substances.”
Id.
at 57148.
See also Gonzales
v.
Oregon,
546 U.S. 243, 274 (2006) (“[T]he prescription requirement . . . ensures patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse. As a corollary, [it] also bars doctors from peddling to patients who crave the drugs for those prohibited uses.”) (citing
United States
v.
Moore,
423 U.S. 122, 135, 143 (1975)).

Here, as the ALJ found, Respondent issued multiple prescriptions to his girlfriend while failing to document the performance of a physical exam, as well as findings and diagnoses that would support the issuance of the prescriptions. Moreover, with respect to the hydrocodone cough syrup prescriptions Respondent issued to his girlfriend which listed her children as the patients, the ALJ credited her testimony that she told Respondent that she wanted the big bottle of hydrocodone cough syrup and he “knew I would drink it too.” R.D. 7; 11 (citing Tr. 216, 251-52, 268, 273);
see also
Tr. 298 (girlfriend's testimony that the Norco prescriptions were “not for a headache” but were “[j]ust for fun”). Likewise, with respect to the prescriptions Respondent provided in March and April 2015 to his girlfriend's purported acquaintances, the undercover recordings clearly establish that Respondent knew that the acquaintances were not seeking the prescriptions to treat legitimate medical conditions but to provide the drugs to his girlfriend. Given the evidence that clearly shows that Respondent issued the prescriptions to support his girlfriend's abuse of controlled substances, the Government was not required to put forward expert testimony to prove its case.

Exception II—The Government “Fail[ed] to Prove `Past Experience in the Distribution of Controlled Substances.' ”

Respondent further argues that the ALJ erred when he refused “to allow Respondent to seek clinical evidence about [his girlfriend's] medical history through third-party document subpoenas.” Exceptions, at 2. Prior to the hearing, Respondent requested that the ALJ issue eight subpoenas to health care providers for their medical records “which reflect, relate to, or explain the clinical or medical basis for prescribing” controlled substances (primarily hydrocodone with acetaminophen) to his girlfriend.
See, e.g.,
ALJ Ex. 13, at 6.

In seeking the subpoenas, Respondent maintained that “[i]n order for the truth about [his girlfriend's] medical condition and needs to be revealed . . . the clinical findings and judgment of all such health care providers should be available to the Court in order to allow a comparison between Dr. Stewart's judgment and the judgments of a substantial number of other health care professionals in the same community.” ALJ Ex. 13, at 3. On the various subpoenas, Respondent explained that because one of the Government's Exhibits (the PMP report, GE 49) shows that the other health care providers had also issued hydrocodone prescriptions to his girlfriend, “[t]he presumed legitimacy of the particular clinical findings which caused [the] other health care professionals in the same community to prescribe the same medication to [her] could be strongly probative of the medical inaccuracy of the . . . core allegations against” him.
See, e.g.,
GE 13, at 6.

The Government opposed the issuance of the subpoenas. It argued that

the information Respondent sought was irrelevant because the only allegations it raised as to the unlawful prescribing of hydrocodone with acetaminophen to his girlfriend involved the four Norco prescriptions which were identified in paragraph 4 of the Show Cause Order.
8

ALJ Ex. 14, at 2-3. The Government also argued that “[i]n each of those instances,” it was “alleg[ing] that Respondent prescribed to [her] either without conducting any examination of her or without noting those prescriptions in her chart.”
Id.
at 3. And it further argued that none of the records would address the “actual charges against” Respondent.
Id.

8
The Show Cause Order alleged that the prescriptions were issued on May 22, June 17, September 11, and October 29, 2014. ALJ Ex. 1, at 2.

The ALJ agreed with the Government and denied Respondent's request. ALJ Ex. 16. The ALJ explained that having reviewed the allegations of the Show Cause Order, he agreed with “the Government's assessment that the question of whether [Respondent' girlfriend] needed a particular medication is not an issue before me.”
Id.
at 1. And noting that “Respondent has not produced a summary of [his] expected testimony,” the ALJ then reasoned that “there is no information in the record that the Respondent based his decision to prescribe a particular medication to [his girlfriend] based upon his knowledge of what some other treating physician had prescribed for” her.
Id.
at 1-2. Concluding that the information sought by Respondent was irrelevant, the ALJ denied the request.
Id.
at 2.

I conclude that the ALJ properly denied Respondent's request. I do not, however, read the Government's Opposition as expressing the position that his girlfriend's need for the Norco prescriptions was not at issue.

While the Government alleged that these particular prescriptions were unlawful because: (1) Respondent did not “conduct[] an examination of” of his girlfriend or “document[] such in her file,” or (2) Respondent did not note the prescriptions in her chart and thus violated the Board's Rules 1.4, 1.11(b) and 1.16, the Government also cited 21 CFR 1306.04(a)). Because “[a] prescription for a controlled substance to be effective must be issued for a legitimate medical purpose,” 21 CFR 1306.04(a), a patient's need for the drug is invariably at issue when a violation of this provision is alleged.
See also
Miss. Code R. § 30-17-2640:1.4 (“No physician shall prescribe, administer or dispense any controlled substance . . . without a good faith prior examination and medical indication therefore.”). Indeed, assessing whether a patient needs a controlled substance to treat a medical condition is the reason why the usual course of professional practice generally requires that a physician take a detailed history and conduct an appropriate examination of the patient to make a proper diagnosis and treatment plan.
9

See id.

9
As Rule 1.4 further states:

Standards of proper medical practice require that, upon any encounter with a patient, in order to establish proper diagnosis and regimen of treatment, a physician must take three steps: (a) Take and record an appropriate medical history, (b) carry out an appropriate physical examination, and (c) record the results. The observance of these principles as a function of the “course of legitimate professional practice” is particularly of importance in cases in which controlled substances are to play a part in the course of treatment. It is the responsibility of the physician to dispense, prescribe or administer such drugs with proper regard for the actual and potential dangers.

Miss. Code R. § 30-17-2640:1.4.

I nonetheless agree with the ALJ's conclusion that the information sought by the subpoenas was irrelevant. Notably, Respondent made no proffer that he had obtained and reviewed the records maintained by these other providers and had based his decisions to prescribe hydrocodone to his girlfriend on those records. Nor did Respondent proffer that he was acting as a covering physician for any of these other physicians (or any other authorized prescriber) when he prescribed the hydrocodone to his girlfriend.

Respondent further contends that the prescriptions issued by the other providers “strongly support a conclusion that [his] own prescriptions for [h]ydrocodone for use by [his girlfriend] were within the bounds of the medical standard of care practiced in that community.” Exceptions, at 4. However, were it the case that Respondent's prescribing of hydrocodone was within the bounds of professional practice, he could have put on an expert to testify as such.
10

Yet Respondent chose not do so.

10
Respondent initially proposed to call a physician and professor from the University of Mississippi Medical Center who would testify that the prescriptions he issued “were for legitimate medical purposes” and “were in the usual course of and consistent with [his] own standard professional practices [and] were consistent with the standard of care in the medical community in which they lived.” ALJ Ex. 17, at 2-3. While the Government moved to exclude the proffered testimony, the ALJ denied the Government's motion and specifically ruled that the expert could testify to the above subjects. ALJ Ex. 28, 3-4. Respondent did not, however, call this witness.

Of further note, even if Respondent had put on testimony that the prescriptions were “consistent with [his] own standard professional practices,” that testimony would have been unavailing because the standard of professional practice is not defined by a physician's subjective belief as to the propriety of his practices but on the application of the standards of practice in the State where he practices.
United States
v.
Tobin,
676 F.3d 1264, 1290 (11th Cir. 2012). For similar reasons, evidence as to the standard of care in the medical community in which Respondent lived would also be unavailing.

Respondent also contends that the evidence is insufficient to show that the hydrocodone prescriptions lacked a legitimate medical purpose because “it is clear that during the months relevant to this case [his girlfriend] was in fact suffering from a chronic migraine condition and associated headache pain, and that [he] was treating her for that condition.” Exceptions, at 3. Respondent points to the testimony of his girlfriend that she was hospitalized for migraines “[t]hree times prior to the beginning of his treatment of her in February 2014, and a fourth time during that treatment in August of 2014.”
Id.
He further maintains that his charts “specified that she complained of, and in fact suffered from, a chronic migraine condition.”
Id.

It is true that in two of the visit notes for his girlfriend (April 21 and Sept. 2, 2014), Respondent listed Maxalt, a non-controlled drug, and Norco (hydrocodone with acetaminophen), as the drugs he prescribed to her for this condition. GE 2, at 12. Yet prior to Respondent's issuance of the first Norco prescription to her, she had “asked him to write the big bottle” of hydrocodone cough syrup “so that [she] could have some too” and “told him I like to drink it” because she “like[d] the way it made [her] feel.” Tr. 251-52; 273. Thus, Respondent already knew that his girlfriend was a drug abuser.
11

11
Respondent points to the testimony of his girlfriend that she never told him that she was addicted to hydrocodone, dependent on the drug, or taking it “for no reason.” Exceptions, at 3. As discussed above, Respondent's girlfriend subsequently clarified that she took the Norco “just for fun.” Tr. 298.

To the extent Respondent believes that his misconduct in writing the Norco prescriptions should be excused because his girlfriend did not tell him why she was taking the Norco, the evidence is clear that she had previously asked him to prescribe the big bottle of cough syrup so that she “could have some too” and had told him that she “like[d] to drink it” because of “the way it made [her] feel.” Thus, Respondent clearly knew that his girlfriend was a drug abuser at the time he wrote her the first Norco prescription.

The evidence also shows that Respondent told his girlfriend that taking hydrocodone could itself “cause migraines.”
Id.
at 283;
see also id.
at 299. Respondent's girlfriend testified that he told her that taking hydrocodone “would not help” her migraines.
Id.
at 300. She further testified that “[t]he hydrocodone was not for a headache,” but for “[e]xtracurricular activities,”
i.e.,

“just for fun.”
Id.
at 298. Moreover, Respondent issued the first of the Norco prescriptions to her without even taking a history and conducting a physical examination of her. GE 2, at 12;
see
Miss. Code R. § 30-17-2640:1.4. He also failed to document several of the hydrocodone prescriptions in his girlfriend's chart.
12

Compare
GE 2, at 12,
with
GE 3, at 9-10. Thus, the evidence strongly supports the conclusion that Respondent acted outside of the usual course of professional practice and lacked a legitimate medical purpose when he prescribed Norco to his girlfriend. 21 CFR 1306.04(a).

12
Indeed, Respondent wrote the first Norco prescription for her on February 21, 2014. The note in her patient file simply states: “2-21-14 Hc 7.5/325 (#40, 1)—may be picked up at desk.” GE 2, at 12. Thus, Respondent issued the prescription without taking a history of his girlfriend's migraines and without conducting a physical exam.

Respondent also appears to argue that the alprazolam prescription he issued to his girlfriend was not unlawful because she suffered from anxiety and he referred her to a psychiatrist who had prescribed the drug to her. Exceptions, at 4. While Respondent acknowledges that he did not “diagnose [her] himself as to anxiety,” he argues that he issued the prescription “in reliance on that psychiatrist's independent clinical judgment” and gave her a refill so that she could “avoid[] further one-hour trips to the psychiatrist to obtain a refill.”
Id.

I am not persuaded. Notably, the psychiatrist prescribed only a seven-day supply of alprazolam extended release in the .5 mg dosage. GE 49, at 1. Respondent, however, prescribed a stronger dosage of alprazolam and greater quantity, providing her with a prescription for 40 tablets of the 1mg immediate release dosage form, with a refill for an additional 40 tablets.
Id.
This was not a refill of the psychiatrist's prescription at all, but a substantially different and stronger prescription. Yet the medical record contains no evidence that Respondent coordinated his prescribing with the psychiatrist. As for Respondent's explanation that he wrote the prescription so that his girlfriend would not have to make the one-hour trip to obtain a refill, this begs the question as to why the psychiatrist would not be willing to call in a refill. I thus reject Respondent's Exception to the extent it challenges the ALJ's findings as to the alprazolam prescription.

As for the phentermine prescriptions, Respondent again invokes Dr. Craig's letter in which he stated that the Board was closing its investigation while cautioning Respondent about the need to conduct an in-person re-evaluation every 30 days. Exceptions, at 4. Respondent revisits his argument that Dr. Craig “determined that there was no sufficient medical basis for alleging any violation . . . of any medical standard in Mississippi.”
Id.
However, as previously explained, the Board terminated its investigation because Respondent was the subject of a criminal investigation. Moreover, the ALJ thoroughly explained the basis for his conclusion that Respondent acted outside of the usual course of professional practice and lacked a legitimate medical purpose when he issued the phentermine prescriptions to his girlfriend.
13

13
Respondent points to the evidence that on March 27, 2015, he declined to prescribe weight loss medication to one of the undercover agents. Exceptions, at 4 (citing GE 10, at 1-2). However, several weeks earlier, Respondent had been visited by a State Board Investigator who had told him that his documentation for the phentermine prescriptions that he issued to his girlfriend was inadequate and he may have already received the letter from Dr. Craig by the date of the first undercover visit. In any event, while Respondent may have taken to heart the warning he received from Dr. Craig regarding the prescribing of weight loss medications, this obviously had no impact on his prescribing of narcotics, as evidenced by his prescribing of Norco and Hycodan to the undercover agents.

Finally, Respondent argues that “[t]he DEA, through the CI [his girlfriend], effectively caused [him] to engage in conduct, which, according to the record . . . he apparently had never engaged in on any other occasion.” Exceptions, at 5. Continuing, Respondent argues that his “conduct, in issuing prescriptions for pain medications to third parties in an effort to provide the CI with continuing relief from her migraine conditions, arose from the peculiar combination of his personal relationship and familiarity with the CI and the CI's insistence that her `friends' were seeking medication for” her use.
Id.
Respondent thus maintains that this “peculiar circumstance . . . provides no significant medical or other evidence sufficient to justify any conclusion that [his] conduct . . . poses, or is likely to pose in the future, any danger to the public health or safety.”
Id.

I disagree. To the extent Respondent's argument sounds in the entrapment defense, I reject it as there is ample evidence that he was predisposed to issue the unlawful prescriptions given the multiple unlawful prescriptions he wrote for his girlfriend in 2014, prior to the involvement of the MBN and DEA.
See United States
v.
Sumlin,
271 F.3d 274 (D.C. Cir. 2001). As for the assertion that he wrote the prescriptions to the undercover agents to provide his girlfriend “with continuing relief from her migraine conditions,” this is simply counterfactual as the record abounds with evidence that Respondent knew she was seeking the drugs to abuse them. Tr. 345; GE15; 16; GE 17, at 2-4, 6-8; GE 18, at 3. I therefore reject Respondent's contention that there is no “significant medical or other evidence” to support the conclusion that he poses a danger to public health and safety.
14

Exceptions, at 5. To the contrary, the evidence shows that on multiple occasions, Respondent issued prescriptions outside of the usual course of professional practices and which lacked a legitimate medical purpose to feed his girlfriend's abuse of controlled substances. This conduct amply supports the conclusion that he has committed such as acts as to render his registration “inconsistent with the public interest.” 21 U.S.C. 824(a)(4).

14
In arguing that he does not “pose . . . any danger to public health or safety,” Respondent cites 21 U.S.C. 823(e), the provision which governs the registration of distributors of schedule III through V controlled substances and not practitioners, who are registered under section 823(f). However, to the extent Respondent argues that the Government is required to put forward such proof in seeking the revocation of his registration, the Government is not required to do so even though one of the section 823(f) factors is “such other conduct which may threaten the public health and safety.” 21 U.S.C. 823(f). While this factor encompasses conduct which is not otherwise embraced by the other section 823(f) factors, it is indisputable that issuing prescriptions to feed a person's drug abuse is conduct which threatens public health and safety.

Exception III—The ALJ Violated Respondent's Fifth Amendment Rights When He Denied His Request To Delay the Hearing Until the End of His Criminal Trial

Respondent's final contention is that the ALJ violated his Fifth Amendment privilege against self-incrimination when he denied his request to reschedule the hearing until after his criminal trial concluded. Exceptions, at 5-6. Notably, the Government did not call Respondent to testify and the ALJ declined to draw an adverse inference from his failure to testify on his own behalf even though doing so would have been warranted.
See Keating
v.
Office of Thrift Supervision,
45 F.3d 322, 326 (9th Cir. 1995) (“Not only is it permissible to conduct a civil proceeding at the same time as a related criminal proceeding, even if that necessitates invocation of the Fifth Amendment privilege, but it is even permissible for the trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in a civil proceeding.”) (citing
Baxter
v.
Palmigiano,
425 U.S. 308, 318 (1976)).

` Here, Respondent does not contend that the need to preserve his Fifth Amendment privilege prevented him

from providing testimony refuting the allegations that he unlawfully prescribed various controlled substances to his girlfriend and the undercover officers. Rather, he argues that “[b]ecause he desired understandably to preserve and not to waive his Fifth Amendment privileges with respect to his criminal trial, [he] was prohibited from `rebutting' any
prima facie
Government case through his own hearing testimony, which was the only practical way he had to `accept responsibility” or to affirm that he `will not engage in future misconduct.'”
Id.
at 6.

I reject Respondent's contention.
See Grider Drug 1 & 2,
77 FR 44069, 44104 (2012). In
Grider,
the respondents argued that the Agency should reject an ALJ's conclusions that the pharmacies had failed to rebut the Government's
prima facie
case because their owner, who was under indictment in two state criminal cases, did not testify and thus offered no evidence to show that he had accepted responsibility and implemented corrective measures. Invoking
SEC
v.
Dresser Industries,

Inc.,
628 F.2d 1368, 1375-76 (D.C. Cir.1980), the
Grider
respondents further argued that because their owner was under indictment, the ALJ should have stayed the proceeding until the state criminal cases were concluded so as not to “undermine the party's Fifth Amendment privilege against self-incrimination.” 77 FR at 44104.

The Agency rejected Grider's arguments. As the Agency explained, “`as a general matter, due process is not infringed merely because an accused person is subjected, without his consent, to an administrative hearing concerning matters involved in a pending criminal proceeding.'”
Id.
(quoting 628 F.2d at 1376 n.21). As
Dresser Industries
noted, “[t]he civil and regulatory laws of the United States frequently overlap with the criminal laws creating the possibility of parallel [administrative] and criminal proceedings, either successive or simultaneous” and that “[i]n the absence of substantial prejudice to the rights of the parties involved, such parallel proceedings are unobjectionable.” 628 F.2d at 1374. Thus, in
Dresser Industries,
the D.C. Circuit observed that “[t]he Constitution . . . does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings.”
Id.
at 1375.

To be sure, in
Dresser Industries,
the D.C Circuit further explained that “the strongest case for deferring civil proceedings is where a party under indictment for a serious offense is required to defend a civil or administrative action involving the same matter.”
Id.
However, the court further explained that the potential harm to a party's Fifth Amendment privilege is just one of the factors to be considered in determining whether to stay the noncriminal proceeding.
Id.
at 1376. Continuing, the court explained that “[i]f delay of the noncriminal proceedings
would not seriously injure the public interest,
a court may be justified in deferring it.”
Id.
(emphasis added). That decision is, however, committed to the discretion of the trial court.
See, e.g., Keating,
45 F.3d at 325 (setting forth multiple factors).

Here, I find no reason to conclude that the ALJ abused his discretion when he declined to continue the proceeding until the conclusion of Respondent's criminal trial. Notably, in his request for a continuance, Respondent provided no information to the ALJ as to when that trial would commence.
15

That trial—and a subsequent appeal were Respondent convicted of the charges—could go on for several years. The ALJ was not required to withhold conducting the hearing while Respondent litigates in other forums.
See
45 F.3d at 325 (noting that “convenience of the court in the management of its cases” is a factor). So too, the Government has a strong interest in proceeding expeditiously with this litigation, and indeed, under the Constitution, the Agency has an obligation to provide prompt post-deprivation process where the Government immediately suspends a registration.
Id.; see also Barry
v.
Barchi,
443 U.S. 56, 64 (1979).

15
In opposing the request, the Government noted that Respondent had also sought a continuance of the criminal case. ALJ Ex. 6, at 1 n.1.

As for the burden on Respondent, it is true that courts have held that the prejudice to a respondent's Fifth Amendment privilege may be substantial where there are parallel administrative and criminal proceedings.
Keating,
45 F.3d at 326. However, while “the extent to which the defendant's Fifth Amendment rights are implicated is a significant factor . . . to consider . . . it is only one consideration to be weighed against others.”
Id.
(citation omitted).

Notably, Respondent was not otherwise foreclosed from putting on a defense. Indeed, in its pre-hearing statement, Respondent proposed to call an expert witness who would testify that the prescriptions were lawfully issued but ultimately chose not to call this witness. Notably, in his Exceptions, Respondent does not maintain that because he invoked the privilege, he was precluded from refuting the factual basis of the allegations.

Instead, Respondent now contends that my consideration of the ALJ's recommendation “should await the disposition of the criminal case . . . following which he should be given an opportunity promptly and succinctly to tell his side of the story and express his complete remorse.” Exceptions, at 6. However, as discussed above, in his Exceptions, Respondent continues to dispute the allegations (as well as the ALJ's factual findings and legal conclusions) that he issued prescriptions outside of the usual course of professional practice and which lacked a legitimate medical purpose for each of the different drugs (
i.e.,
the hydrocodone cough syrup, the Norco tablets, the alprazolam, and the phentermine). Thus, his argument begs the question of which allegations he now would admit to.

The Fifth Amendment privilege is not “a sword whereby a claimant asserting the privilege [is] freed from adducing proof in support of a burden which would otherwise have been his.”
United States
v.
Rylander,
460 U.S. 752, 758 (1983).
See also MacKay
v.
DEA,
664 F.3d 808, 820 (10th Cir. 2011) (quoting
Keating
v.
Office of Thrift Supervision,
45 F.3d 322, 326 (9th Cir. 1995)). Indeed, the misconduct established on this record is so egregious and occurred over such a lengthy period, that even were I to remand to allow Respondent to express his “complete remorse” and the ALJ was to find this credible, I would still find his registration to be inconsistent with the public interest.
See Hatem M. Attaya,
81 FR 8221, 8244 (2016);
Fred Samimi,
79 FR 18698, 18714 (2014) (denying applications noting that notwithstanding ALJ's finding that physician “credibly accept responsibility for his misconduct, this is a case where actions speak louder than words”). Thus, I find that Respondent has failed to establish that the ALJ abused his discretion when he denied Respondent's request to continue the proceeding until his criminal trial concluded.
16

16
It is, of course, commonplace that matters involving DEA registrants will lead to both a revocation proceeding and a criminal investigation and subsequent charges at either the federal or state level. However, the very purpose of a proceeding brought under 21 U.S.C. 823(f) and 824(a)(4) is to protect the public interest, and, in the Controlled Substances Act, Congress directed that these “proceedings shall be independent of, and not in lieu of, criminal prosecutions or other proceedings under this subchapter.” Thus, I conclude that the fifth
Keating
factor (“the interest of the public in the pending . . . litigation”) also supports the ALJ's denial of Respondent's stay request.

As for the fourth
Keating
factor, “the interests of persons not parties to the [administrative] litigation,” 45 F.3d at 326, Respondent puts forward no argument as to why this factor supports the requested stay or a remand at this juncture.

Accordingly, I reject Respondent's third exception and will adopt the ALJ's recommended sanction of revocation.

ORDER

Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 823(f), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration AS2286311 issued to Lawrence E. Stewart, M.D., be, and it hereby is, revoked. I further order that any application of Lawrence E. Stewart, M.D., to renew or modify the above registration, or for any additional registration be, and it hereby is, denied. This Order is effectively immediately.
17

17
For the same reasons that led me to immediately suspend Respondent's registration, I find that the public interest necessitates that this Order be effective immediately.
See
21 CFR 1316.67.

Dated: August 9, 2016.
Chuck Rosenberg,
Acting Administrator.

Paul A. Dean, Esq.
for the Government.

J. Brad Pigott, Esq.
for the Respondent.

RECOMMENDED RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

Administrative Law Judge Charles Wm. Dorman. On December 9, 2015, the Drug Enforcement Administration (“DEA” or “Government”) served Lawrence E. Stewart, M.D. (“Respondent”), with an Order to Show Cause and Immediate Suspension of Registration (“OSC/ISO”), which immediately suspended the Respondent's DEA Certificate of Registration (“COR”), Number AS2286311. Administrative Law Judge Exhibit (“ALJ-”) 1-2. The Respondent's COR has remained suspended throughout these proceedings. In response to the OSC/ISO, the Respondent requested a hearing before an Administrative Law Judge. ALJ-3. That hearing was held in New Orleans, Louisiana on March 22 and 23, 2016. The issue currently before the Administrator is whether the Respondent's COR should be revoked, and applications for renewal or modification denied, because continued registration would be inconsistent with the public interest under 21 U.S.C. 823(f) and 824(a)(4). The following recommendations are based on my consideration of the entire administrative record, including all of the testimony, admitted exhibits, and the oral and written arguments of counsel.

ALLEGATIONS

1. From February 2014 to May 2015, the Respondent prescribed controlled substances, including hydrocodone and alprazolam, to a confidential informant (“CI”)
1

without conducting and/or documenting a physical examination, and without recording the controlled substance prescriptions in CI's chart, in violation of Mississippi Medical Board Administrative Rules Part 2640, Chapter 1, Rules 1.4, 1.11(b), and 1.16, Mississippi Code §§ 73-25-29(3) and (13), and 21 CFR § 1306.04(a). ALJ-1, at 2.

1
The Prehearing Ruling and Protective Order directed that the confidential informant would be referred to as “CI.” ALJ-9, at 5. Accordingly, in this Recommended Decision, the confidential informant will be referred to as “CI.”

2. On four occasions, the Respondent prescribed phentermine to CI without adequate documentation, in violation of Mississippi Medical Board Administrative Rules Part 2640, Chapter 1, Rule 1.5, Mississippi Code §§ 73-25-29(3) and (13), and 21 CFR § 1306.04(a). ALJ-1, at 3.

3. From February 7, 2014 to November 19, 2014, the Respondent prescribed hydrocodone products to CI's children
2

without conducting examinations of them, and for CI's personal use, in violation of Mississippi Medical Board Administrative Rules Part 2640, Chapter 1, Rules 1.4, 1.10, 1.11(b), and 1.16, and Mississippi Code §§ 73-25-29(3) and (13), and 21 CFR § 1306.04(a) and 1306.05(a). ALJ-1, at 2-3. The Respondent prescribed hydrocodone-homatropine syrup to these children, who were under the age of six. ALJ-1, at 3. Hydrocodone-homatropine syrup is not recommended for children under the age of six because of a risk of death. ALJ-1, at 3. The Respondent also prescribed adult dosages of hydrocodone-homatropine to these children, even though the recommended dosage for children ages six to eleven is half of the adult dosage. ALJ-1, at 2-3.

2
The Prehearing Ruling and Protective Order directed that CI's children would be referred to as “Kid 1” and “Kid 2.” ALJ-9, at 5. Accordingly, in this Recommended Decision, CI's son will be referred to as “Kid 1,” and CI's daughter will be referred to as “Kid 2.”

4. On five occasions between March and October 2015, the Respondent prescribed controlled substances to undercover agents when he knew or should have known that the agents' prescription requests were fraudulent, in violation of 21 U.S.C. 841(a) and 842(a), and 21 CFR § 1306.04(a). ALJ-1, at 3. In total, the Respondent wrote seven prescriptions on five occasions to undercover agents, for a total of 190 dosage units of hydrocodone tablets and 72 dosage units of hydrocodone syrup. ALJ-1, at 11. On at least four of those occasions, the Respondent knew that CI would receive a portion of the prescribed controlled substances. ALJ-1, at 3-4. The Respondent also knew that CI had attempted to commit suicide using controlled substances that the Respondent had prescribed to her. ALJ-1, at 3-4.

5. From February 2014 to October 2015, the Respondent unlawfully prescribed controlled substances in violation of 21 U.S.C. 841(a) and 842(a). ALJ-1, at 2. Specifically, the Respondent prescribed controlled substances when he knew or should have known that the prescriptions were not for legitimate medical purposes and were not made in the usual course of professional practice, in violation of 21 CFR § 1306.04(a) and Mississippi Code §§ 41-29-137(a)(1) and 41-29-141(1). ALJ-1, at 2.

6. On September 2, 2014, the Respondent prescribed meperidine to CI. ALJ-1, at 3. The Respondent was the only practitioner to prescribe meperidine to CI. ALJ-1, at 3. CI used meperidine to attempt to commit suicide in December 2014. ALJ-1, at 3.

STIPULATIONS OF FACT
3

3

See
ALJ-9, 20; Tr. 9.

The Government and the Respondent stipulated to the following facts:

1. Respondent is registered with the DEA as a practitioner to handle controlled substances in Schedules II-V under DEA COR AS2286311 at 405 Marion Avenue, P.O. Box 666, McComb, Mississippi 39648-2709.

2. DEA COR AS2286311 will expire by its terms on February 28, 2018.

3. Respondent is presently licensed in Mississippi as a medical doctor (M.D.) with Medical License 11503.

4. CI is the mother of Kid 1 and Kid 2.

5. Hydrocodone-Acetaminophen 10-325 (Norco), Hydrocodone-Acetaminophen 7.5-325 (Norco), Hydrocodone-Acetaminophen 5-325 (Norco), and Hydrocodone-Homatropine Syrup (Hycodan) are all classified as Hydrocodone Combination Products.

6. Hydrocodone Combination Products are classified by DEA as Schedule II Controlled Substances and have been so classified since October 6, 2014. Before October 6, 2014, Hydrocodone Combination Products were classified by DEA as Schedule III Controlled Substances.

7. Alprazolam is classified by DEA as a Schedule IV Controlled Substance.

8. Phentermine (Adipex) is classified by DEA as a Schedule IV Controlled Substance.

9. Meperidine (Demerol) is classified by DEA as a Schedule II Controlled Substance.

WITNESSES

The Government presented its case through the testimony of nine
4

witnesses. First, the Government called Kendrick Lewis (“Lewis”). Tr. 24. Lewis is an employee of the Mississippi Bureau of Narcotics (“MBN”). Tr. 25. Lewis received a complaint against the Respondent on January 18, 2015. Tr. 25. Lewis spoke with CI and her husband, who had made the complaint together. Tr. 25, 29-31. Other than this conversation, Lewis had no further contact with CI. Tr. 28. Based on the nature of the complaint, Lewis contacted MBN's diversion unit, which began investigating the Respondent. Tr. 26-27, 31. During 2015, Lewis participated in the investigation by assisting with surveillance on March 27, April 8, April 29, and October 16. Tr. 27. Lewis's testimony was thorough, detailed, and internally consistent. Therefore, I merit it as credible in this Recommended Decision.

4
Although the Government also called Antoine Battle to the stand, the Government did not elicit any testimony from Mr. Battle, and he was excused without testifying. Tr. 155-58.

Second, the Government called Mary Flinchum (“Flinchum”). Tr. 33. Flinchum is a lieutenant for the MBN and a task force officer for the DEA's Tactical Diversion Squad. Tr. 33-34. Flinchum received an intelligence report about the Respondent from MBN. Tr. 35. Flinchum interviewed CI and her husband, separately and together, about their complaint to MBN. Tr. 36, 82. Flinchum helped decide that MBN should investigate the Respondent. Tr. 36-37. Flinchum also communicated with the Mississippi State Board of Medical Licensure (“Mississippi Board”), which was conducting an independent investigation concerning the Respondent. Tr. 58-59. Flinchum was familiar with an undercover investigation of the Respondent during March, April, and October of 2015. Tr. 77-81. Later, Flinchum was recalled to offer further testimony concerning the October 2015 undercover operation. Tr. 449-50. Through Flinchum's testimony, the Government authenticated and successfully offered into evidence Government Exhibits (“GE-”) 13 through 21, 27 through 29, 38 through 40, and 53. Tr. 38-57. I find all of these exhibits to be accurate, authentic, and meriting credibility. On cross-examination, the Respondent authenticated and successfully offered into evidence GE-2. Tr. 62-63. I find that Flinchum's testimony was thorough, detailed, and internally consistent. Therefore, I merit her testimony as credible in this Recommended Decision.

Third, the Government called Undercover Agent #1
5

(“Agent 1”). Tr. 89. Agent 1 is a female DEA task force officer and former MBN Agent. Tr. 89-90. Agent 1 participated in an undercover investigation of the Respondent. Tr. 90-91. Agent 1 attended undercover medical appointments with the Respondent on four occasions in 2015: March 27, April 8, April 29, and October 16. Tr. 91, 102, 111, 119. Agent 1 also accompanied CI to a rendezvous with the Respondent at a Walmart before the second undercover appointment on April 8, 2015. Tr. 128-29. Through Agent 1's testimony, the Government authenticated and successfully offered into evidence GE-9 through 12, 24 through 26, 30 through 33, 42 through 47, and 54. Tr. 91-128. I find all of these exhibits to be accurate, authentic, and meriting credibility. I also find that Agent 1's testimony was thorough, detailed, and internally consistent. Therefore, I merit her testimony as credible in this Recommended Decision.

5
Pursuant to the Prehearing Ruling and Protective Order, the identities of the undercover agents are not disclosed in this Recommended Decision. ALJ-9.

Fourth, the Government called Undercover Agent #2 (“Agent 2”). Tr. 141. Agent 2 is a female MBN agent. Tr. 141. Agent 2 participated in the undercover investigation of the Respondent. Tr. 142. Agent 2 attended an undercover medical appointment with the Respondent on April 29, 2015. Tr. 143. Through Agent 2's testimony, the Government authenticated and successfully offered into evidence GE-34 through 37. Tr. 143-51. I find these exhibits to be accurate, authentic, and meriting full credibility. I also find that Agent 2's testimony was thorough, detailed, and internally consistent. Therefore, I merit her testimony as credible in this Recommended Decision.

Fifth, the Government called MBN Agent Charles Causey (“Causey”). Tr. 159. In 2015, Causey assisted with audiovisual surveillance for the DEA and MBN's undercover investigation of the Respondent on March 27, April 8, April 29, and October 16. Tr. 162-63. Causey testified that the video recordings of these undercover operations may contain incorrect internal date/time stamps, and that the dates and times on the video recordings do not necessarily correspond to the actual dates and times on which the video recordings were made. Tr. 165-66. I find that Causey's testimony was thorough, detailed, and internally consistent. Therefore, I merit his testimony as credible in this Recommended Decision.

Sixth, the Government called Leslie Ross (“Ross”). Tr. 168. Ross is an investigations supervisor for the Mississippi Board and a task force officer for the DEA's Tactical Diversion Squad. Tr. 168-69. The Mississippi Board reviews and issues medical licenses, promulgates rules and regulations for the practice of medicine in Mississippi, investigates complaints about Mississippi licensees, and imposes disciplinary action when necessary. Tr. 170. Several days before the Mississippi Board closed its investigation concerning the Respondent, Ross received a call from Agent Flinchum, advising Ross that the DEA and the MBN were investigating the Respondent. Tr. 194-95, 210. Ross explained that the phone call influenced the Mississippi Board's decision to close its case because it was the Mississippi Board's custom “to back off and let a criminal agency pursue their case.” Tr. 210. Without interviewing CI, the Mississippi Board closed its investigation. Tr. 196. Ross also helped author part of Mississippi Administrative Rule 1.5, which regulates diet medication prescriptions in Mississippi. Tr. 172. Ross established the foundation for the Court to take official notice of Mississippi Administrative Rules 1.1, 1.2, 1.4, 1.10, and 1.16. Tr. 188-93. Additionally, while Ross did not conduct the Mississippi Board's investigation of the Respondent, she supervised Todd Pohnert, who conducted the investigation. Tr. 170, 173. Ross served administrative subpoenas for information about the Respondent to two Mississippi pharmacies, one in McComb and one in Brookhaven. Tr. 185. I find that Ross' testimony was thorough, detailed, and internally consistent. Therefore, I merit her testimony as credible in this Recommended Decision. Through Ross' testimony, the Government authenticated and successfully offered into evidence GE-3 and 8. Tr. 171-78. I find these exhibits to be accurate, authentic, and meriting credibility. Furthermore, through Ross' testimony, the Government established some foundation for GE-7 and 55. Tr. 185-88.

Seventh, the Government called CI. Tr. 212. CI testified about her relationship with the Respondent and

how and why she obtained controlled substance prescriptions from him. Tr. 212-31.
6

Through CI's testimony, the Respondent admitted GE-49, 56, and 57. Tr. 284, 300-03, 335-38. I find these exhibits to be generally accurate, authentic, and meriting credibility. I also find that CI's testimony was generally forthright, internally consistent, and generally merited credibility
7

in this Recommended Decision.

6
The Respondent asked CI extensively about an exhibit, pre-marked for identification as Respondent's Exhibit (“RE-”) 1.
See generally
Tr. 231-73. However, the Respondent never offered RE-1 into evidence. Therefore, the contents of RE-1 are not considered in this Recommended Decision.

7
There were some inconsistencies in CI's lengthy testimony. First, when asked if she paid cash for prescriptions from the Respondent, CI answered that she believed she always used insurance. Tr. 360. However, CI's Prescription Monitoring Program report shows that, in 2014, CI paid for prescriptions from the Respondent with cash 15 times, and used her insurance only 5 times.
See
GE-49, at 1-3. Second, CI suggested that it was the Respondent's idea for CI to send a friend into his office to get prescriptions for her. Tr. 345-47. However, audio recordings of the Respondent's telephone calls with CI suggest that it was CI's idea for her to send a friend into the Respondent's office to get prescriptions for CI.
See
GE-16, file 2015-03-16_18-51-48_EDT, at 20-21; GE-16, file 2015-03-18_11-03-33_EDT, at 2. Third, CI testified that the Respondent only conducted a physical examination of her one time. Tr. 322. The Respondent's patient file for CI seems to indicate, however, that the Respondent gave CI some sort of examination on both April 21 and September 2 of 2014. GE-2, at 12. In these three instances, I do not find CI's testimony credible.

Eighth, the Government called James Pacheco (“Pacheco”). Tr. 385. Pacheco is an agent for the MBN and a task force officer for the DEA's Tactical Diversion Squad. Tr. 386. Pacheco participated in the undercover investigation of the Respondent by coordinating the surveillance aspect of the investigation. Tr. 388. Pacheco assisted with physical surveillance of the Respondent and CI during an undercover operation at a Walmart on April 8, 2015. Tr. 388-89. Pacheco personally observed most of the operation at Walmart. Tr. 389. Pacheco also testified that he listened to the undercover operation conducted at the Respondent's clinic in October 2015. Tr. 406-07. Through Pacheco's testimony, the Government authenticated and successfully offered into evidence GE-22 and 23. Tr. 387-93. I find these exhibits to be accurate, authentic, and meriting credibility. I also find that Pacheco's testimony was thorough, detailed, and internally consistent. Therefore, I merit his testimony as credible in this Recommended Decision.

The Government's ninth witness was Maria Gilbert (“Gilbert”). Tr. 409. Gilbert is a DEA diversion investigator, and was a case agent in the investigation of the Respondent. Tr. 409-10. Gilbert helped submit the evidence acquired by the undercover agents into a DEA evidence locker. Tr. 440. Gilbert also directed DEA personnel to obtain Prescription Monitoring Program (“PMP”) reports during the investigation. Tr. 438. Gilbert created the administrative subpoenas issued to pharmacies to obtain information about the Respondent. Tr. 412. Gilbert helped conduct an administrative search of the Respondent's office. Tr. 427-28. Through Gilbert's testimony, the Government authenticated and successfully offered into evidence GE-7, 41, 48, 50 through 52, 55, and 58 through 60. Tr. 411-18, 427-39. I find these exhibits to be accurate, uncontested, and meriting credibility. I also find that Gilbert's testimony was thorough, detailed, and internally consistent. Therefore, I merit her testimony as credible in this Recommended Decision.

The Respondent did not call any witnesses or offer any of his proposed exhibits into evidence. Tr. 458.

The factual findings below are based on a preponderance of the evidence, including the detailed, credible, and competent testimony of the aforementioned witnesses, the exhibits entered into evidence, and the record before me.

FACTUAL FINDINGS

1. The Respondent has not previously been convicted of any crime related to controlled substances. GE-1, at 1. The Respondent has never had his state medical license revoked, suspended, denied, restricted, or placed on probation. GE-1, at 1.

The Respondent's Relationship with CI

2. The Respondent and CI became Facebook friends and began talking with each other in January 2014. Tr. 213, 237. CI asked the Respondent questions about the health of Kid 1.
8

Tr. 213-14, 246-47, 261-62. The Respondent performed a tonsillectomy on Kid 1 and placed tubes in his ears on January 30, 2014. GE-57, at 13, 19-20; Tr. 219, 235, 285. Following Kid 1's tonsillectomy, CI asked the Respondent for medication for Kid 1's medical condition; the Respondent was willing to write prescriptions for Kid 1. GE-57, at 5-6; Tr. 246-47, 249. Around that time, CI and the Respondent became friends and began texting and talking on the phone. Tr. 213-14, 240.

8

See
Stipulation (“Stip.”) 4;
see also
ALJ-9, at 5.

3. In the spring of 2014, CI and the Respondent began to have a consensual sexual relationship. Tr. 213, 218-19, 290-92, 296, 359. During the summer of 2014, CI and the Respondent saw each other very often. Tr. 324. CI and the Respondent communicated frequently by texting and calling each other on their cell phones. Tr. 355-56.

4. CI engaged in a sexual affair with the Respondent because she was infatuated with him and because she wanted to obtain controlled substances for her recreational use. Tr. 291-92. The controlled substances, however, were not a prerequisite for sexual relations. Tr. 289.

5. The sexual relationship between CI and the Respondent ended in November 2014. Tr. 219.

A. The Respondent's Medical Treatment of CI and Her Children

6. The Respondent provided medical treatment to CI several times, beginning in 2010. GE-2, at 12-13; Tr. 215, 277. Specifically, the Respondent treated CI for a sinus infection, vertigo, and migraines. GE-2, at 12-13; Tr. 215, 277-78, 287, 321. CI had a serious migraine condition that caused her to seek treatment in emergency rooms on four occasions. Tr. 278-80, 347. CI discussed her migraines and hospitalizations with the Respondent, who gave her information about migraines. Tr. 282, 287. The Respondent prescribed Maxalt
9

to CI to treat her migraines. GE-2, at 12; Tr. 215-16, 283.

9
Maxalt, or rizatriptan benzoate, is not a federally controlled substance.
See generally
21 CFR §§ 1308.11-1308.15 (2015).

7. The Respondent had a patient file for CI and wrote notes therein about her treatment.
See
GE-2, at 12-13. The Respondent conducted two physical examinations of CI, once when he was treating her for a sinus infection, and again when he was treating her for a migraine headache.
10

GE-2, at 12-13; Tr. 322. The Respondent also requested a CT
11

sinus scan for CI in 2014. GE-2, at 12, 14. A CT scan showed that CI's sinuses were “clear [and] scant thickening in LNF duct.” GE-2, at 14.

10

See supra
note 7.

11
Computerized tomography.

8. CI took Kid 1 and Kid 2 to appointments with the Respondent. Tr. 219, 261-62, 285-86, 335-36, 338;
see, e.g.,
GE-56, at 3-4; GE-57, at 6, 9-10. The Respondent conducted legitimate medical procedures on both children and saw the children for follow-up appointments. GE-56, at 3-4; GE-57, at 5-6; Tr. 219, 261-62.

9. CI sent the Respondent at least one message via social media requesting his medical advice about Kid 1's condition. Tr. 262-63. CI communicated with the Respondent about the physical

condition of her children to get his medical advice. Tr. 263-65.

10. Near a date stamp reading “February 4, 2014,” the Respondent recorded in Kid 1's medical file that CI had migraines, that she may call in for a prescription if needed, and that he discussed phentermine
12

with her. GE-57, at 6;
see
Tr. 286. The Respondent's patient file for CI also contains a telephone request form, dated July 18, 2014, and signed by the Respondent, which states that CI requested a phentermine refill. GE-2, at 15. CI's patient file, however, does not note any reasons that the Respondent prescribed phentermine to CI.
See
GE-2, at 12-13.

12
CI denied asking the Respondent for phentermine in February 2014. Tr. 286-88. Phentermine is another name for Adipex.
See
Stip. 8; Tr. 288.

B. CI's Drug Use

11. Prior to her relationship with the Respondent, CI took controlled substances, including hydrocodone, which were prescribed by numerous other doctors to help treat pain resulting from four lithotripsies, kidney stones, a broken tailbone, a root canal, and TMJ
13

. GE-49, at 2; Tr. 214, 275-76, 304-09. CI told the Respondent about these prescriptions. Tr. 309.

13
Temporomandibular joint dysfunction, or lockjaw.

12. CI occasionally used Adderall for nonmedicinal purposes. Tr. 215. CI had not used cough syrup for nonmedicinal purposes prior to her relationship with the Respondent. Tr. 215.

13. After Kid 1 had his tonsils removed on January 30, 2014, CI took some of Kid 1's pain medication. Tr. 273-74, 276. As a result of the tonsillectomy, the Respondent prescribed two different forms of hydrocodone for Kid 1. GE-51, at 1; GE-57, at 6, 14, 22.

14. The Respondent first prescribed cough syrup for Kid 2 on January 24, 2014. GE-50, at 1; GE-56, at 4. The Respondent again prescribed cough syrup for Kid 2 in February 2014. Tr. 216, 258-59; GE-50, at 1; GE-56, at 4. The Respondent did not examine Kid 2 before he prescribed cough syrup for her. Tr. 217, 251;
see
GE-56, at 4.

15. CI talked with the Respondent about prescribing a “big bottle” of cough syrup so that CI could drink it. Tr. 216, 251-52, 268, 273. CI thought that the Respondent knew she did not have a cough. Tr. 216, 251-52, 268. In February 2014, CI asked the Respondent to prescribe
14

a “big bottle” of hydrocodone cough syrup for Kid 2. Tr. 216-17, 250, 252-53, 259. At that time, CI told the Respondent that Kid 2 had a cough. Tr. 250-51, 253-55. On February 7, 2014, the Respondent doubled the size of Kid 2's prescription for cough syrup. GE-50, at 1; GE-55, at 1-2.

14
CI later testified that this was a refill of a prescription written by the Respondent. Tr. 272-73.

16. CI told the Respondent when Kid 1 or Kid 2 had a cough. Tr. 250. CI, however, did not bring her children to see the Respondent regarding a cough; she requested cough syrup from the Respondent because she liked drinking it. Tr. 220, 273;
see generally
GE-56, at 3-4; GE-57, at 5-6.

17. The Respondent prescribed Norco, Xanax, and Adipex to CI on multiple occasions. Tr. 26; GE-49. The Respondent prescribed Norco
15

to CI, which she took daily instead of as needed. Tr. 297. CI took hydrocodone “[j]ust for fun.” Tr. 298. CI would tell the Respondent when she ran low on a prescription, and he would give her another prescription.
16

Tr. 298-99. He advised her that hydrocodone could cause migraines. Tr. 298-99.

15
Norco is a hydrocodone combination product.
See
Stip. 5.

16
Specifically, CI testified that when she ran low on a prescription, the Respondent would refill it. Tr. 298-99. Refills are not authorized for hydrocodone combination products, such as Norco.
Compare
21 U.S.C. § 829(a),
with
Stip. 6. The record does not contain any evidence that the Respondent attempted to give CI a refill on a hydrocodone combination product. Therefore, I interpret CI's statement as meaning that whenever she ran low on a prescription, she would tell the Respondent, and he would issue another prescription to her.

18. On several occasions, the Respondent provided prescriptions to CI while he was at CI's house. Tr. 217-18;
see
Tr. 26. On those occasions, the Respondent did not communicate a diagnosis to CI or perform a physical examination of CI. Tr. 218. Sometimes, CI took her children to appointments with the Respondent as an excuse to see the Respondent, who would then occasionally give prescriptions to CI. Tr. 219-20. On one occasion, the Respondent met CI in the garden section of a Walmart, where he gave her prescriptions for cough syrup and pain medication. Tr. 218.

19. At times, CI told the Respondent about her children's pain or physical conditions to get prescriptions for her own personal use. Tr. 267. CI would occasionally administer the prescribed medication to her children. Tr. 270-72.

20. CI requested that the Respondent write a prescription for Adderall for her, but he declined to do so. Tr. 223. In the spring of 2014, CI asked the Respondent to write her a prescription for Adipex, a weight loss drug. Tr. 223-24, 288-89. The Respondent wrote prescriptions and refills for Adipex to CI. GE-49, at 1-2; Tr. 223-24. CI used Adipex for approximately three months. Tr. 224. The Respondent did not conduct a physical examination of CI focused on weight issues at any point before or while CI took Adipex, and the Respondent did not discuss alternative weight loss treatments with CI. Tr. 224-25;
see
GE-2, at 12-13.

21. CI had anxiety, which she discussed with the Respondent. Tr. 322. The Respondent told her to visit a certain psychiatrist. Tr. 225, 295. CI visited that psychiatrist twice. Tr. 225. The psychiatrist prescribed a low dosage of time-release Xanax
17

. Tr. 225, 295, 304;
see
GE-49, at 1. The Respondent then prescribed
18

a stronger dosage of Xanax to CI. Tr. 226;
see
GE-49, at 1.

17
Xanax is a brand name for alprazolam, which is a benzodiazepine and a Schedule IV controlled substance. Stip. 7;
see
21 CFR § 1308.14(c)(2); Tr. 304.

18
CI testified that this prescription was a refill prescription, but that it was for a different dosage. Tr. 295-96.

22. The Respondent wrote nine prescriptions
19

to CI, contained in GE-7 and 41, which are not documented in the Respondent's patient file for CI.
Compare
GE-2, at 12-13 (containing the Respondent's patient file for CI),
with
GE-7, at 1-2 (containing a prescription written by the Respondent to CI),
and
GE-41 (containing prescriptions written by the Respondent and filled by CI),
and
GE-49 (containing CI's PMP report);
see
Tr. 364-77. The Respondent's patient file for CI does not include any notes from any examinations on the dates on which the Respondent wrote these nine prescriptions. GE-2, at 12-13. CI did not have a physical examination or receive counseling before the Respondent gave her any of these prescriptions. Tr. 384;
see
GE-2, at 12-13.
20

19
Seven of these prescriptions, written to CI in 2014, were as follows: May 19 for Adipex; May 22 for Norco; June 17 for Norco; July 24 for Adipex; September 8 for Adipex; September 11 for Norco; and October 6 for Xanax.
Compare
GE-2, at 12-13,
with
GE-41, at 1-7, 12-13, and 18-23,
and
GE-49. The Respondent wrote another prescription for Adipex to CI on April 9, 2014.
Compare
GE-2, at 12-13,
with
GE-7, at 1-2,
and
GE-49. The Respondent also wrote a prescription for Hycodan to CI, dated December 3, 2014, but CI's PMP report said that the prescription was written on December 4, 2014.
Compare
GE-41, at 28-29,
with
GE-49. Regardless of when this prescription was actually written, it was not documented in CI's patient file.
See
GE-2, at 12-13.

20
CI testified about a prescription that is not in GE-41. Tr. 364, 369-70. The prescription allegedly was written in her name by the Respondent. Tr. 369-70. The prescription allegedly was dated October 29, 2014. Tr. 369-70. The Respondent's PMP report likewise lists a prescription for hydrocodone-acetaminophen (Norco) prescribed by the Respondent on October 29, 2014. GE-49, at 1. However, neither of the two copies of GE-41 submitted to me includes this prescription. Examination of both submitted copies of GE-41

reveals that no pages of GE-41 are missing. At the hearing, however, Government counsel provided CI with an excerpt of what he said was “part of Exhibit 41,” and he provided the Respondent and the ALJ with a copy of what was handed to the witness. Tr. 364. That excerpt has now been included in the administrative record as ALJ-29. Comparing ALJ-29 with GE-41, I have determined that the witness did, in fact, examine a prescription dated October 29, 2014. That prescription, however, was never offered into evidence. Furthermore, the witness was never asked if the prescription, dated October 29, 2014, refreshed her memory of having received the prescription. Accordingly, I decline to find that the Government presented sufficient evidence to establish that the Respondent wrote a prescription to CI on October 29, 2014. Following the hearing, the parties were provided with copies of ALJ-29.

23. Two prescriptions written by the Respondent to Kid 1 are not documented in Kid 1's medical chart.
Compare
GE-51 (containing Kid 1's PMP report and listing prescriptions from June 17 and November 19 of 2014),
and
GE-55, at 3-4, 11-12 (containing prescriptions from June 17 and November 19 of 2014),
with
GE-57 (containing Kid 1's medical file, which does not include any examination or prescription notes for June 17 or November 19 of 2014);
see also
Tr. 377-81. Likewise, a prescription written by the Respondent to Kid 2 is not documented in Kid 2's medical chart.
Compare
GE-50 (containing Kid 2's PMP report and listing a prescription written on July 23, 2014),
and
GE-55, at 5-6 (containing a prescription dated July 23, 2014),
with
GE-56 (containing Kid 2's medical file, which does not include any examination notes or prescription notes for July 23, 2013).

24. On one occasion in early fall of 2014, following CI's complaint of a severe migraine, the Respondent prescribed Demerol to CI. Tr. 222, 296-97, 317-18, 382. Next to the date “September 2, 2014” in CI's medical chart, the Respondent wrote that he refilled her prescription of phentermine, looked at her ears and nose, and counselled her. GE-2, at 12; Tr. 323. He also wrote that he prescribed Demerol and Xanax to CI. GE-2, at 12. CI did not ask the Respondent for Demerol. Tr. 296, 318.

25. CI's husband discovered that CI was having an affair with the Respondent. Tr. 26, 320. Sometime after the discovery, in December 2014, CI attempted suicide using the Demerol the Respondent prescribed to her. Tr. 222, 314-17. CI went to a mental institution for a week following her suicide attempt. Tr. 227, 309. In January 2015, CI told the Respondent that she had tried to kill herself. Tr. 226-27, 309-11.

C. The MBN Complaint

26. After CI's husband discovered the affair and CI attempted to commit suicide, CI and her husband made a complaint against the Respondent to the MBN. Tr. 25, 29-31, 71, 228-29, 339-40. CI told MBN investigators that she got medications from the Respondent for nonmedicinal purposes because she enjoyed using them. Tr. 84.

D. The Anonymous Letter

27. The Mississippi Board received an unsigned letter, allegedly from CI's husband, which complained about the extramarital affair between CI and the Respondent. GE-3, at 3; Tr. 58, 66. The Mississippi Board and MBN both received a copy of the letter. Tr. 66-67, 70-71, 398-99. Several witnesses testified that CI's husband was not the author of this letter. Tr. 67-70, 326, 394, 396. The author of the letter is unknown. Tr. 67-70, 201, 326, 394-95.

28. The letter was written in the first person, and CI's husband's name was typewritten on the bottom of the letter, along with CI's date of birth and social security number. GE-3, at 3. The letter said that the author's wife, CI, had an affair with the Respondent for over a year, and that the author did not know about it until he found a box of empty pill bottles that the Respondent had prescribed to CI, even though CI was not his patient. GE-3, at 3. The letter was stamped as received by the Mississippi Board on February 19, 2015. GE-3, at 3.

29. By the time the MBN received a copy of the letter, it had already begun its investigation of the Respondent because of the complaint made by CI and her husband. Tr. 71, 74-76. After receiving a copy of the letter, the Mississippi Board began conducting an independent investigation of the Respondent. Tr. 58, 61, 203.

E.
The Mississippi Board Investigation

30. A Mississippi Board investigator met with the Respondent regarding the anonymous letter. GE-3, at 4-6. At that time, the Mississippi Board was unaware that the DEA was conducting a simultaneous investigation of the Respondent. Tr. 180.

31. In response to the investigator's inquiry, the Respondent said that he only saw CI when she or her children had appointments, and had not seen CI outside of his office. GE-3, at 5; Tr. 179, 202. The Respondent suggested that he had not engaged in sexual misconduct with CI. GE-3, at 5; Tr. 180, 207. The Respondent also suggested that he was not aware that CI had attempted to commit suicide or had been committed to a mental hospital. GE-3, at 5, 7.

32. The investigator made copies of CI's patient charts and found several shortcomings with CI's medical records. GE-3, at 4-5; Tr. 180, 197. First, the investigator found seven prescriptions in CI's PMP report that were not documented in the Respondent's patient file for CI. GE-3, at 5. The Respondent explained that he might have documented the missing prescriptions in his patient files for CI's children instead. GE-3, at 5.

33. Second, the investigator found that CI's patient file did not include any notes about CI's vitals, height/weight, BMI, or alternative weight control treatment plans, and did not indicate that CI received any counseling about other weight loss options. GE-3, at 5; Tr. 180.

34. Following the investigator's visit, the Mississippi Board sent the Respondent a copy of the anonymous letter purportedly from CI's husband.
21

See
GE-2, at 6-8. The investigator told the Respondent that he should send a letter to the Mississippi Board as a follow-up from the investigator's visit. GE-3, at 5; Tr. 179.

21
The handwritten notation on the bottom of the letter was likely added by a Mississippi Board investigator. Tr. 87;
see
GE-2, at 6.

35. The Respondent sent a letter to the Mississippi Board. GE-3, at 7-8; Tr. 179-80. Therein, the Respondent denied knowing that CI had overdosed.
22

GE-3, at 7; Tr. 180. The Respondent stated that he was “appalled, outraged, and disgusted” by the anonymous letter's allegations. GE-3, at 7; Tr. 208. The Respondent wrote that the medications CI used to overdose “were legitimately prescribed for valid medical problems.” GE-3, at 7. The Respondent wrote that he was unaware that CI had received controlled substances from other prescribers and that CI did not show “any hint of drug-seeking behavior.” GE-3, at 7. The Respondent acknowledged that he should not refill medications for a parent during a child's visit without pulling the parent's chart, and said that he would not do so in the future. GE-3, at 7. The Respondent stated that he would not refill diet drugs for patients in the future without completing the appropriate documentation. GE-3, at 7.

22
Specifically, the Respondent wrote that he was “sorry to learn that [CI] may have deliberately taken an overdose.” GE-3, at 7.

36. The Mississippi Board contemplated closing its investigation of the Respondent because it did not have enough evidence supporting the allegations of the Respondent's sexual misconduct. Tr. 181, 184, 194-95, 197, 209-10. Throughout the course of its investigation, however, the Mississippi Board never interviewed CI. Tr. 196.

37. On March 20, 2015, while the Mississippi Board was contemplating closing its investigation, Flinchum

contacted the Mississippi Board and requested, on the DEA's behalf, that the Mississippi Board discontinue its investigation of, and communication with, the Respondent. GE-3, at 2; Tr. 60-61, 181, 209. The Mississippi Board customarily will discontinue an investigation to allow a criminal agency to pursue a case. Tr. 210.

38. The Mississippi Board closed its investigation of the Respondent on March 23, 2015. GE-3, at 1; Tr. 181. A letter from the Mississippi Board to the Respondent terminated the Board's investigation. GE-3 at 1; Tr. 183. The letter stated that the Mississippi Board concluded its investigation and that, after a thorough review of the information and facts from the investigation, it decided not to recommend any formal action. GE-3, at 1. This letter was a truthful and accurate reflection of the Board's reasons for terminating the investigation. Tr. 64-65, 86, 195-97.

39. The letter also cautioned the Respondent against “authorizing refills for Phentermine/Adipex without benefit of a medical examination.” GE-3, at 1 (discussing Mississippi Administrative Rule 1.5(E)).

40. The letter told the Respondent that the Mississippi Board had found some deficiencies with his medical records. Tr. 181, 183-84, 203. The letter did not exonerate the Respondent, but warned him about his inadequate documentation of weight loss prescriptions. Tr. 184, 203.

F. DEA Undercover Operations

41. The DEA began undercover operations concerning the Respondent in March 2015. Tr. 77-78.

42. CI was told that if she cooperated with law enforcement, she would not be in any trouble. Tr. 342-43. CI signed a confidential informant agreement with the DEA. Tr. 343-44, 394.

43. The DEA instructed CI not to have any contact
23

with the Respondent unless the DEA supervised the contact. Tr. 350. CI did not comply with this instruction and met the Respondent one time without DEA's supervision. Tr. 353, 358.

23
The DEA did not ask CI to attend an undercover appointment with the Respondent because CI had a physical relationship with the Respondent, and because CI said that she was addicted to cough syrup. Tr. 400.

44. With CI's consent, the DEA gave CI a telephone number that recorded all calls and text messages exchanged between CI and the Respondent. Tr. 37-38, 84-85, 230. This telephone number operated through an application that the DEA installed on CI's cellular phone. Tr. 382. This application automatically recorded all calls, conversations, and multimedia messages exchanged between CI and the Respondent. Tr. 37-38, 85-86.

45. CI called and texted the Respondent outside of the presence of MBN and DEA agents. Tr. 85-86. The DEA did not tell CI what to say to the Respondent. Tr. 85-86.

i. Interactions Between the Respondent and CI Before the

First Undercover Appointment

46. The DEA agents asked CI to contact the Respondent by phone or by text message and ask him for Norco and cough syrup. Tr. 346, 348-49.

47. On March 16, 2015, at approximately 6:51 p.m., the Respondent and CI spoke on the phone. GE-15-16. CI asked the Respondent to meet her at Walmart and give her a prescription for something. GE-16, file 2015-03-16_18-51-48_EDT, at 19;
see
Tr. 345. The Respondent said he could not do that because the Mississippi Board was watching him and he could go to jail or lose his license. GE-16, file 2015-03-16_18-51-48_EDT, at 19-20;
see
Tr. 230, 345-47. He said that everything he had prescribed to CI was legitimate and written in her chart. GE-16, file 2015-03-16_18-51-48_EDT, at 20. After CI again asked the Respondent several times to give her a prescription, CI asked him instead to write a prescription for someone else.
24

Id.
The Respondent said he could prescribe to anyone who came into his office, and what they did with their prescriptions was “their business,” but that it had “to be a legitimate thing.”
Id.
at 21. CI asked him multiple times to write prescriptions for her, but in different names, and the Respondent said he could not do so without someone coming for a visit and having a chart.
Id.
The Respondent said he could “probably pilfer” some medication from his wife for CI.
Id.
at 22. CI repeatedly asked the Respondent to get her some controlled substances, and the Respondent repeatedly said he would see what he could do.
Id.
at 24-26.

24

Contra
Tr. 346;
see supra
note 7.

48. On March 17, 2015, at approximately 1:07 p.m., the Respondent and CI spoke on the phone. GE-15-16. CI asked the Respondent to slip “a couple Lorcets” into her mailbox. GE-16, file 2015-03-17_13-07-36_EDT, at 4. The Respondent joked, “I need to learn to play the guitar so you could be getting sex, drugs and rock and roll, you know.”
Id.
CI asked the Respondent to “sneak [her] some meds.”
Id.
at 7. The Respondent said, “I've got your request and I'm telling you that is highly, highly dangerous for me.”
Id.

49. On March 18, 2015, at approximately 11:03 a.m., the Respondent and CI spoke on the phone. GE-15-16. CI suggested that the Respondent could write a prescription in Kid 1's name. GE-16, file 2015-03-18_11-03-33_EDT, at 1. The Respondent responded sarcastically and attempted to change the subject.
Id.
at 1-2. CI said that she really needed him to find a way to write her a prescription.
Id.
at 2. The Respondent said he did not know how to do that.
Id.
CI suggested that he could write a prescription in someone else's name.
Id.
The Respondent said he would “have to have somebody that's legitimate” and “what they did with the medicine[,] that was up to them . . . somebody that's trustworthy.”
Id.
at 3. The Respondent indicated that it was like a “federal crime when you write medicine to—that are diverted to somebody else.”
Id.
CI said that the Respondent used to write her prescriptions “all the time.”
Id.
The Respondent said, “Yeah, but I wrote it for you.”
Id.
CI recalled that the Respondent “used to bring [his] prescription pad over and a bottle of vodka,” and that she “miss[ed] those days.”
Id.
The Respondent replied, “I know, me too.”
Id.
The Respondent joked with CI that it was good to have a boyfriend with a prescription pad.
Id.
at 4.

50. On March 25, 2015, at approximately 10:36 a.m., the Respondent and CI spoke on the phone. GE-17, at 1-5.
25

CI asked the Respondent if he would write a prescription to another person. GE-17, at 2. The Respondent remarked that it was dangerous and it would have to be to an established patient; he suggested that she get another doctor to write a prescription for her. GE-17, at 2. CI insisted, and the Respondent said “it has to be legitimate” and for a “legitimate patient” because the Mississippi Board was watching him. GE-17, at 2. The Respondent said he could treat a patient for CI if the patient had headaches and anxiety. GE-17, at 3. The Respondent said, “what he does with 'em is his business.” GE-17, at 3. CI asked the Respondent if he would write something to her friend who came in with a headache; the Respondent said, “Yeah, I could write him something.” GE-17, at 3. CI clarified that the prescription would really be for her, and requested that he prescribe “Lorcet or something;” the Respondent said, “Yeah, I could write him some—

yeah, some stuff like that.” GE-17, at 3. The Respondent cautioned CI that taking too many Lorcet or Demerol would be harmful and painful to her. GE-17, at 4. CI said she just wanted “some pain pills from [her] boyfriend.” GE-17, at 4.

25

See
GE-16, file 2015-03-25_10-36-40_EDT.

51. On March 25, 2015, at approximately 11:43 a.m., the Respondent texted CI, “I won't be in the office tomorrow. I could see her Friday.” GE-53, file 2015-03-25_11-43-42_EDT. CI texted back, “Ok:) she is a real cool girl. I use [sic] to party with her.” GE-53, file 2015-03-25_11-47-23_EDT;
see
Tr. 349.

52. On March 25, 2015, at approximately 2:36 p.m., the Respondent and CI spoke on the phone. GE-17, at 6-8.
26

The Respondent asked CI for her friend's name. GE-17, at 6-8. CI told the Respondent the alias first name of Agent 1. GE-17, at 6-7. The Respondent said, “If she's coming in for what I think she's coming in, tell her not to tell me that. That needs to be your secret. I don't wanna know that. She needs to have a headache and I will treat her for a headache, and so [I] don't mind giving her prescriptions to treat a headache.” GE-17, at 7. The Respondent discussed the medications he could prescribe to Agent 1 and told CI that they “would be perfectly appropriate for you to take.” GE-17, at 7;
see
Tr. 349 (noting that the Respondent knew that Agent 1 was not a real patient and that medication prescribed to Agent 1 would be given to CI).

26

See
GE-16, file 2015-03-25_14-36-02_EDT.

53. On March 26, 2015, at approximately 11:18 a.m., the Respondent and CI spoke on the phone. GE-18.
27

CI told the Respondent that Agent 1 had an appointment with him “tomorrow at 2:00—2:10, I think.” GE-18, at 3. The Respondent replied, “Okay. We'll see if we can't get my girlfriend fixed up.” GE-18, at 3. The Respondent said CI should remind Agent 1 to “play it straight” and tell the Respondent what he to needed to write on a chart to “keep the medical examiners at bay . . . .” GE-18, at 3. CI asked him if he would prescribe Norco to Agent 1. GE-18, at 3. The Respondent said, “Yeah, I'll write her Norco and some more Maxalt, and then you can have some Maxalt also. Just remember to hide it.” GE-18, at 3.

27

See
GE-16, file 2015-03-26_11-18-28_EDT.

54. Based on Findings of Fact 47 through 53 and the transcript at pages 91, 230, and 349, I find that, by the time the Respondent met with Agent 1 on March 27, 2015, the Respondent knew that Agent 1 was not a legitimate patient and that any medication he prescribed to her at that appointment would be given to and used by CI.

ii. Undercover Appointment #1: March 27, 2015

55. Agent 1's first appointment with the Respondent was on March 27, 2015. GE-10; Tr. 91. Upon arriving at the Respondent's clinic, Agent 1 signed in, completed paperwork, and waited in the Respondent's waiting room. GE-9; Tr. 92. The Respondent's nurse called Agent 1 back into an examination room and spoke briefly with her. GE-9; Tr. 92, 94.

56. Agent 1 met with the Respondent. GE-9-10; Tr. 91;
see
GE-59 (containing the Respondent's patient file for Agent 1). The appointment lasted approximately seven minutes. GE-9. When the Respondent asked Agent 1 what her problem was, she told him, “Just kind of a whole head thang [sic].” GE-10, at 1; Tr. 94. The Respondent asked Agent 1 how long her head had been bothering her, and she indicated just a few days. GE-9-10. The Respondent quickly looked into Agent 1's ears, nose, and throat. GE-9-10; Tr. 94, 132. The Respondent asked her if she was dizzy, nauseous, or taking other medication. GE-9-10. He advised her that Maxalt works well for sinus headaches and gave her instructions for taking her prescriptions. GE-9-10. The Respondent did not communicate any diagnosis to Agent 1, nor did he record a diagnosis in her patient file.
28

GE-9-10; GE-59, at 4.

28
The Respondent's March 27, 2015 notes in Agent 1's patient file mention photophobia. GE-59, at 4. The transcript and recording of the office visit, however, contain no mention of photophobia or any discussion of the symptoms of photophobia. GE-9-10.

57. Agent 1 asked the Respondent if he could help her with her weight loss. GE-9-10. The Respondent declined to prescribe anything for weight loss to Agent 1; he said that it was not his area of expertise and it was heavily regulated by the Mississippi Board. GE-10, at 2. He recommended that she could go to a licensed diet center for assistance. GE-10, at 3.

58. The Respondent wrote two prescriptions for Agent 1: one non-refillable prescription for Norco, and one refillable prescription for Maxalt. GE-11-12; Tr. 95. The Respondent told Agent 1 that he would give her “lots of refills” on the Maxalt. GE-10, at 1.

59. That same day, CI and the Respondent had a phone conversation about the Respondent's meeting with CI's “friend,” Agent 1. GE-13-14; GE-20, file Post Buy CI Call With STEWART 3-27-2015. The Respondent said he enjoyed meeting Agent 1 and that he was “hopeful that that helps” CI. GE-14, at 1. CI said that she could get through because the Respondent “hooked” her up. GE-14, at 1. The Respondent responded, “absolutely that needs to be about as discreet as [unintelligible].” GE-14, at 1. The Respondent told CI to “not take that other stuff but one at a time.” GE-14, at 1. He said that, during Agent 1's appointment, he “talked about headaches and pretty much left it exactly at that.” GE-14, at 1. The Respondent told CI, “[s]o um you got refills on that Maxalt. Um she does,” and noted that he could not give refills “on the other one . . ..” GE-14, at 2.

iii. Interactions Between the Respondent and CI Between the First and Second Undercover Appointments

60. On April 1, 2015, at approximately 8:28 p.m., the Respondent and CI spoke on the phone. GE-19.
29

CI said that she spent time with Agent 1. GE-19, at 1. The Respondent asked her, “So that all went smooth with getting your medicine and all that?” GE-19, at 1;
see
Tr. 230-31. CI said she might need some more. GE-19, at 1. The Respondent said he was glad he could help and that it was “just because of” the Mississippi Board complaint that “it just has to be straight up and clean.” GE-19, at 1.

29

See
GE-16, file 2015-04-01_20-28-54_EDT.

61. On April 2, 2015, at approximately 2:15 p.m., the Respondent and CI spoke on the phone. GE-16, file 2015-04-02_14-15-50_EDT. CI told the Respondent that Agent 1 would come back and that she “took all” after CI “halved some with her.”
Id.
CI asked the Respondent if he could “give her a little bit more if she'd come back in.”
Id.
at 1. The Respondent replied, “I can do that.”
Id.
at 2. The Respondent asked if “she” really had migraines.
Id.
CI said “no” and laughed.
Id.
The Respondent laughed too and said he was just wondering because there were a lot of refills.
Id.
The Respondent said, “[l]ong as we don't get outta hand. Just be sure to keep ’em really hidden.”
Id.

62. On April 2, 2015, at approximately 3:04 p.m., the Respondent and CI spoke on the phone. GE-16, file 2015-04-02_15-04-43_EDT. CI asked the Respondent whether he could write her “80” if someone came in to see him.
Id.
at 1. The Respondent said he could not because it would be a red flag, and that “40 is a pretty substantial number.”
Id.
at 1-2. The Respondent joked that CI should tell her husband that he messed up CI's “drug

connection” when he filed the complaint.
Id.
at 2.

63. On April 6, 2015, at approximately 8:59 p.m., the Respondent and CI spoke on the phone. GE-16, file 2015-04-06_20-59-35_EDT. CI told the Respondent that she had talked to Agent 1, who was coming on Wednesday.
Id.
at 2. The Respondent said, “I'm glad to help her and take care of her.”
Id.
He commented that he had to follow the rules when taking care of her.
Id.
CI asked the Respondent to help her out when he saw Agent 1.
Id.
at 3. The Respondent said he would take care of Agent 1's headaches “like any other patient” and that he had to follow the rules, treating her “like anybody else.”
Id.

64. On April 7, 2015, at approximately 1:29 p.m., the Respondent and CI spoke on the phone. GE-16, file 2015-04-07_13-29-34_EDT. CI asked the Respondent if she could attend Agent 1's appointment.
Id.
at 2. The Respondent said it was “a little bit on the risky side.”
Id.

65. On April 7, 2015, at approximately 6:28 p.m., the Respondent and CI spoke on the phone. GE-16, file 2015-04-07_18-28-45_EDT. CI asked the Respondent if he wanted her to come with Agent 1 to her appointment the next day.
Id.
at 7. The Respondent said that he was nervous about it and had to treat Agent 1 the way he treated everyone else.
Id.
CI thanked the Respondent and said she knew he was seeing Agent 1 for her.
Id.
at 8. The Respondent said that he was treating her as a patient, and that it was dangerous.
Id.

66. On April 7, 2015, at approximately 7:04 p.m., CI texted the Respondent and asked if he would meet her at Walmart the next day around lunch. GE-20, file 2015-05-06_141328_601-904-1188_FROM_2015-04-01_TO_2015-04-30_ALL.
30

30

Contra
Tr. 129.

67. On April 8, 2015, at approximately 8:59 a.m., CI again texted the Respondent and asked him to go to Walmart on his lunch break so that she could “run into” him. GE-21, at 3. CI texted the Respondent that Agent 1 would be there and that Agent 1 knew about their relationship, but was “cool” and would “cover” for CI. GE-21, at 5-6.

68. On April 8, 2015, at approximately 10:16 a.m., the Respondent and CI spoke on the phone. GE-16, file 2015-04-08_10-16-03_EDT. The Respondent said he would love to see CI at Walmart at noon that day.
Id.
at 1. CI again said Agent 1 knew that the Respondent was CI's boyfriend.
Id.
CI said she was fat because she was not taking Adipex anymore.
Id.
at 3. The Respondent said that she worried too much and that she was beautiful.
Id.
31

The Respondent and CI agreed to meet in Walmart that day.
Id.
at 7-8.

31

See
GE-27, at 1;
contra
Tr. 225.

69. On April 8, 2015, at approximately 12:31 p.m., CI texted the Respondent and said, if he wanted to save Agent 1 some money, he could bring a prescription for her with him to Walmart. GE-21, at 8. At 12:37 p.m., the Respondent replied that he “MUST see her in the office. You know why.” GE-21, at 9.

iv. Undercover Operation at Walmart: April 8, 2015

70. On April 8, 2015, Agent 1 accompanied CI to Walmart at approximately 12:45 p.m. GE-22-23; Tr. 128-29, 133-34. The Respondent met CI in the home furnishings department. GE-22; Tr. 389. CI wore a video and audio recording device. Tr. 347-48, 389;
see
GE-22. The Respondent spoke with CI. Tr. 129;
see
GE-22. The video recording did not capture an image of the Respondent's face, and much of the recording is inaudible. GE-22.

71. The Respondent told CI to tell Agent 1 to space out her appointments more. Tr. 129-30. The Respondent said, “[w]e will be good now, so but you can't come back like every week for a prescription cause they keep up, it's like every 4 weeks.” GE-23. CI asked the Respondent how she was “supposed to last that long.” GE-23. The Respondent told her to “go buy a bottle of Vodka . . . .” GE-23.

72. At approximately 3:29 p.m., CI texted the Respondent that she really felt fat and asked him to write Agent 1 “something for that too.” GE-21, at 13.

73. Based on Findings of Fact 47 through 53, Findings of Fact 56 through 72, and the transcript at pages 91, 230, and 349, I find that, by the time the Respondent met with Agent 1 on April 8, 2015, the Respondent knew that Agent 1 was not a legitimate patient and that at least some of the medication he prescribed at that appointment would be given to and used by CI.

v. Undercover Appointment #2: April 8, 2015

74. Agent 1 had a second appointment with the Respondent that took place on April 8, 2015. GE-24-25; Tr. 102. The Respondent's nurse asked Agent 1 why she was back so soon after her first visit and if she was taking her medication correctly. GE-24; GE-25, at 1; Tr. 103. Agent 1 said she just “ran out” of medication and was taking it twice a day. GE-25, at 1.

The nurse told her that she did not need to take pain medication “every day all year long.” GE-25, at 1.

75. The Respondent met with Agent 1 and asked her what she had going on. GE-25, at 1. Agent 1 said, “Same thing. Same stuff.” GE-25, at 1. The Respondent asked if the medicine had helped. GE-25, at 1. Agent 1 said it helped “a little bit.” GE-25, at 1. The Respondent began writing almost immediately after he entered the room without conducting any sort of examination of Agent 1. GE-24-25; Tr. 103-04, 132. The appointment lasted approximately seven minutes. GE-24.

76. The Respondent and Agent 1 talked casually about boating and skiing. GE-25, at 2-3. The Respondent took out his prescription pad and wrote prescriptions for Agent 1. GE-25, at 3. The Respondent said, “[w]e need to kinda stretch this out [to] make it last a month.” GE-25, at 3.

77. The Respondent wrote two prescriptions
32

to Agent 1: one for 40 Norco, and one for Maxalt. GE-24-26; Tr. 104. The Respondent told Agent 1 that he gave her refills for Maxalt but could not for “the other.” GE-25, at 1. The Respondent again told her to “spread it out a little bit longer.” GE-25, at 2. He said that “the other ones are not really intended for . . . daily use,” but that he would “go ahead and give [her] a refill.” GE-25, at 2.

32
In GE-26, the Government only provided a copy of the prescription for Norco. However, the Respondent's discussion of Maxalt, preserved in GE-24 and 25, indicates that the Respondent also prescribed Maxalt to Agent 1. Additionally, Agent 1's testimony that she received two prescriptions at this appointment was credible and uncontested. Tr. 104.

vi. Interactions Between the Respondent and CI Between the Second and Third Undercover Appointments

78. On April 8, 2015, at approximately 5:01 p.m., CI texted the Respondent and said “[t]hank u sweetheart for hooking me up again :).” GE-20, file 2015-05-06_141328_601-904-1188_FROM_2015-04-01_TO_2015-04-30_ALL.

79. On April 8, 2015, at approximately 6:15 p.m., the Respondent and CI spoke on the phone. GE-27.
33

CI asked how things went with Agent 1. GE-27, at 1. The Respondent said he thought they went okay. GE-27, at 1. The Respondent and CI discussed their encounter in Walmart. GE-27, at 3. The Respondent asked CI what Agent 1 said to CI, and she told him that Agent 1 said that they had talked about the

Respondent's boat. GE-27, at 5. The Respondent said that he talked with Agent 1 about a boat because “we had to be in there more than ten seconds” so that his “nosy nurse” would not think, “[d]ang, why is this appointment over with in ten seconds?” GE-27, at 5.

33

See
GE-16, file 2015-04-08_18-15-44_EDT.

80. On April 14, 2015, at approximately 3:48 p.m., CI texted the Respondent and asked him how many friends she could “send in ur office for `headaches' lol?” GE-20, file 2015-04-14_15-48-52_EDT.

81. On April 14, 2015, at approximately 6:47 p.m., the Respondent and CI spoke on the phone. GE-38.
34

CI again asked the Respondent how many friends she could send to him with a headache. GE-38, at 2. The Respondent said they had to be really careful about it.
Id.
The Respondent told CI that if she had a friend who was “willing to help” her, she should not tell him about it and should just ask the friend to come by and “mention that they've got headaches.” GE-38, at 2. The Respondent said he was nervous about it because he knew he was being watched. GE-38, at 2. The Respondent said that, but for CI's husband, CI could “have all the sex, drugs, and rock and roll” that she needed. GE-38, at 2. CI told the Respondent that she was “running low” and needed “some more pills or something.” GE-38, at 3. The Respondent suggested she drink vodka. GE-38, at 3. CI asked if he would treat Agent 1 for a cough if Agent 1 came in for a cough, and if he would give Agent 1 cough medicine. GE-38, at 3. The Respondent said he could give her cough medicine for something legitimate, and warned CI that the state monitors drug-seeking behavior. GE-38, at 3-4. CI asked the Respondent to prescribe her a “big bottle,” like he used to prescribe to her. GE-38, at 4. The Respondent said he could give her about eight ounces. GE-38, at 4. The Respondent told CI that he could not prescribe Adipex to her and explained why. GE-38, at 6. The Respondent told CI that he could help her feel happier if he did not get “busted by the . . . drug police.” GE-38, at 8.

34

See
GE-20, file 2015-04-14_18-47-34_EDT; GE-28, file 2015-04-14_18-47-34_EDT.

82. On April 14, 2015, at approximately 7:02 p.m., CI texted the Respondent and asked if he had any Adipex left over from a prescription to his wife. GE-20.

83. On April 15, 2015, at approximately 9:30 p.m., the Respondent and CI spoke on the phone. GE-20, 28. CI talked about being severely depressed. GE-28, file 2015-04-15_21-30-59_EDT, at 9. The Respondent talked about how CI's husband would not let her “have drugs.”
Id.
at 10.

84. On April 22, 2015, at approximately 10:28 a.m., the Respondent and CI spoke on the phone. GE-20, 28. CI told the Respondent that Agent 1 and some of her friends were coming next week to see the Respondent. GE-28, file 2015-04-22_10-28-41_EDT, at 3. The Respondent warned CI that he had to be careful because it was “super serious.”
Id.
CI laughed and said that they had headaches.
Id.
The Respondent told CI that prescribing frequently to people from out of town was a “big” red flag.
Id.
The Respondent said he could not “do it on any kind of regular basis.”
Id.
at 4.

85. On April 22, 2015, at approximately 12:10 p.m., the Respondent texted CI that he “CANNOT do anything other than legitimate medical stuff” because it was risky and CI's husband had everyone “on high alert.” GE-20. CI texted back and asked if he would see Agent 1 next week, and that Agent 1 and her friends would not “tell.” GE-20. CI asked him to “write in their chart it's for migraines like u always do.” GE-20. The Respondent texted back that he would see Agent 1 and treat her in a medically appropriate way. GE-20. The Respondent also texted that his usual prescription for Lorcet (40) “should last more than a month.” GE-20. The Respondent texted that his feelings for CI needed to be “totally separate from [his] medical practice.” GE-20.

86. On April 22, 2015, at approximately 1:03 p.m., the Respondent and CI spoke on the phone. GE-20, 28. The Respondent said that they had to be really careful because the Mississippi Board was watching him. GE-28, file 2015-04-22_13-03-23_EDT, at 1-2. He compared their situation to going to “buy drugs at a crack house.”
Id.
at 2. The Respondent said everything needed to be “straight” and “above the board.”
Id.
The Respondent said that his normal prescription dosage of headache medicine should last more than 30 days, and that it would raise alarm if he saw people more than once a month or every other month for headaches.
Id.
CI said that it had been a month since he saw Agent 1; the Respondent said he did not remember.
Id.
CI asked him how he got “away with it” when he was seeing her; he replied that “they weren't watching nearly as close” and that CI had legitimate headaches and he “was writing it down every time.”
Id.
at 3. The Respondent said he was not giving her prescriptions “super often.”
Id.
The Respondent discussed headaches, Maxalt, and Lorcet with CI.
Id.
at 3-4. CI asked the Respondent if he would see “them” next week.
Id.
at 4. The Respondent said that he would see anybody that came in to his office.
Id.
CI asked him to “write ’em Lorcet.”
Id.
The Respondent said that “[i]t would even be better if I don't even know who they are” and instructed CI to not tell him their names.
Id.
The Respondent said that he treats everyone the same.
Id.
at 5. The Respondent said that he liked to be nice to Agent 1, who he identified as CI's friend.
Id.

87. On April 22, 2015, at approximately 2:32 p.m., CI texted the Respondent, “[w]hat I wouldn't do for an aipex [sic] right now ! Omg :/.” GE-20, file 2015-04-22_14-32-41_EDT.

88. On April 27, 2015, at approximately 2:45 p.m., the Respondent and CI spoke on the phone. GE-20, 28. CI said she spoke to Agent 1, who was going to see the Respondent that Wednesday. GE-20, file 2015-04-27_14-45-16_EDT. The Respondent said he would be glad to see her.
Id.
CI said that Agent 1 would give CI all of Agent 1's prescriptions.
Id.
CI said Agent 1 and Agent 2 would split Agent 2's prescriptions. GE-28, file 2015-04-27_14-45-16_EDT, at 1. The Respondent said he did not “know anything about that and [did not] want to know anything about that.”
Id.
CI discussed previously taking “like 20” of the Demerol that the Respondent prescribed to her.
Id.
at 7.

89. On April 28, 2015, at approximately 8:23 p.m., the Respondent and CI spoke on the phone. GE-20, 28. CI told the Respondent to not forget that Agent 1 and Agent 2 were coming tomorrow. GE-28, file 2015-04-28_20-23-38_EDT, at 1. The Respondent acknowledged that he knew they were coming and said he would see them then.
Id.
CI told the Respondent to “[h]ook her up good. Give her some cough medicine.”
Id.

90. On April 29, 2015, at approximately 9:38 a.m., the Respondent and CI spoke on the phone. GE-20, 28, 29. CI told the Respondent not to forget that Agent 1 was coming that day. GE-29, at 7. The Respondent replied that he would not forget and would “take care of her.” GE-29, at 7. CI told him to give her cough medicine. GE-29, at 7. The Respondent said he would see what he could do, but that CI was “really pushing [his] envelope.” GE-29, at 7.

91. On April 29, 2015, at approximately 3:40 p.m., CI texted the Respondent that Agent 1 said that Agent 2 “ `has a cough too' if u could hook her up with some cough med . . . Please :) .” GE-39, at 5.

92. Based on Findings of Fact 47 through 53, 56 through 72, and 75 through 91, and the transcript at pages 91, 136, 230, and 349, I find that, by the time the Respondent met with Agents 1 and 2 on April 29, 2015, the Respondent knew that Agent 1 and Agent 2 were not legitimate patients and that at least some of the medications that he prescribed to them during their appointments that day would be given to and used by CI and/or shared by the Agents.

vii. Undercover Appointment #3: April 29, 2015, with Agent 1

93. Agent 1 had a third appointment with the Respondent, which occurred on April 29, 2015. GE-30-31; Tr. 111.

94. The Respondent met with Agent 1 and asked her, “Headaches for you?” GE-31, at 1. Agent 1 responded, “Yep.” GE-31, at 1. The Respondent performed a brief examination of Agent 1, checking her ears and nose. GE-30-31; Tr. 112, 132. The Respondent observed that Agent 1 still had “refills on the other.” GE-31, at 1.

95. Agent 1 told the Respondent that she talked on the phone with a friend of hers, who told her that she was coughing a lot and needed to get something for her cough; Agent 1 also told the Respondent that she had not paid it much attention to it. GE-31, at 1; Tr. 133, 138-39. The Respondent immediately told Agent 1 that he would give her some cough syrup. GE-30; Tr. 133, 139-40. Agent 1 was not coughing during the appointment. GE-30; Tr. 138. Agent 1 did not tell the Respondent that she had a cough. GE-30-31; Tr. 113, 132. Agent 1 did not directly request cough syrup from the Respondent. GE-30-31; Tr. 113.

96. The Respondent wrote two prescriptions to Agent 1: one for 40 Norco 10/325, and one for eight ounces of Hycodan. GE-32-33; Tr. 113.

viii. Undercover Appointment #4: April 29, 2015, with Agent 2

97. Agent 2 also had an appointment with the Respondent on April 29, 2015. GE-34-35; Tr. 143.

98. The Respondent met with Agent 2. GE-34-35; Tr. 144;
see also
GE-58 (containing the Respondent's patient file for Agent 2). The Respondent asked her what he could do for her. Agent 2 she said she had “a little headache,” but noted that it had not been going on for a long time. GE-35, at 1; Tr. 144. The Respondent briefly looked into Agent 2's ears, nose, and mouth. GE-34-35; Tr. 144. The Respondent asked her a few questions about allergies, blood pressure, and smoking. GE-35, at 2. The Respondent then wrote prescriptions to Agent 2. GE-34. Meanwhile, the Respondent talked casually with Agent 2 about sports, Birmingham, and restaurants. GE-35, at 2-3.

99. The Respondent wrote two prescriptions for Agent 2: one for 40 Norco 10/325, and one for Maxalt with unlimited refills. GE-35, at 3; GE-36-37; Tr. 144.

ix. Interactions Between the Respondent and CI Between the Fourth and Fifth Undercover Appointments

100. On April 29, 2015, at approximately 1:48 p.m., the Respondent and CI spoke on the phone. GE-29, at 9. CI asked the Respondent if he had seen Agent 1. GE-29, at 9. The Respondent said he had. GE-29, at 9. CI asked him what he gave her. GE-29, at 9. The Respondent said, “appropriate medicine,” and laughed. GE-29, at 9. He said that he gave her something for her headache and cough. GE-29, at 9. CI thanked the Respondent. GE-29, at 9.

101. On April 30, 2015, at approximately 9:19 a.m., the Respondent and CI spoke on the phone. GE-40;
see
GE-20, 28. CI told the Respondent that she got her medication. GE-40, at 1. The Respondent said he was “glad all that worked out.” GE-40, at 1;
see
Tr. 230-31. The Respondent asked CI who Agent 2 was and if she was Agent 1's friend. GE-40, at 1. CI told the Respondent that Agent 1 gave all of hers to CI, and that Agent 1 and Agent 2 split Agent 2's prescription. GE-40, at 2. The Respondent said he was glad he could help, and that both agents were “very appropriate” because they went “through the motions.” GE-40, at 2. The Respondent said that during the appointment with Agent 2, he was thinking, “I'm not mentioning [CI] and I'm not mentioning [Agent 1].” GE-40, at 2.

102. The DEA's investigation was suspended while the Respondent campaigned for political office. Tr. 78. The DEA contacted CI in October 2015 and asked her to talk to the Respondent again to try to get him to write another prescription. Tr. 358. CI said no. Tr. 358.

x. Undercover Appointment #5: October 16, 2015

103. Agent 1 had a fourth appointment with the Respondent, which took place on October 16, 2015. Tr. 78, 119. The purpose of this appointment was to refresh the investigation concerning the Respondent. Tr. 78. Upon arriving at the Respondent's clinic, the Respondent's receptionist told Agent 1 that her chart had been misplaced,
35

so Agent 1 filled out new paperwork and sat in the Respondent's waiting room. GE-42-43; Tr. 119-20, 137.

35
After the Respondent was arrested, Agent 1's original file, GE-59, was found in the Respondent's desk, along with the files for CI and CI's children. Tr. 428.

Agent 1 waited for about an hour and twenty minutes before she was called into an exam room. GE-42; Tr. 406.

104. Agent 1 met with the Respondent. GE-42;
see
GE-60 (containing Agent 1's October 16, 2015 patient file). The Respondent examined Agent 1's ears, nose, and throat. GE-60, at 4; Tr. 120, 132.
36

The Respondent asked Agent 1 what her symptoms were and what he had treated her for in the past. GE-43, at 2; Tr. 135. Agent 1 thought the Respondent was acting as though he did not know who she was. Tr. 120, 135, 452;
see
GE-42-43.

36
The audiovisual recording of Agent 1's appointment did not record any physical examination by the Respondent during this appointment.
See
GE-42. However, because the audiovisual recording was incomplete, and because Agent 1 testified that the Respondent examined her ears, nose, and throat, I find

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-19595. Public record. Not legal advice.