[Federal Register: June 7, 2005 (Volume 70, Number 108)]
[Notices]
[Page 33207-33209]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn05-89]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Robert A. Smith, M.D., Revocation of Registration
This order serves as a correction of the final order previously
issued in this matter and published on May 10, 2005. On September 29,
2004, the Deputy Administrator, Drug Enforcement Administration (DEA),
issued an Order to Show Cause/Immediate Suspension of Registration to
Robert A. Smith, M.D. (Dr. Smith) who was notified of an opportunity to
show cause as to why DEA should not revoke his DEA Certificate of
Registration AS6932669 under 21 U.S.C. 824(a)(4) and deny any pending
applications for renewal or modification of that registration under 21
U.S.C. 823(f). Dr. Smith was further notified that his registration was
being immediately suspended under 21 U.S.C. 824(d) as an imminent
danger to the public health and safety.
The Order to Show Cause alleged in relevant part, that Dr. Smith
diverted controlled substances for a substantial time by knowingly
issuing fraudulent prescriptions to individuals, without a bona fide
doctor-patient relationship or legitimate medical purpose. The Order to
Show Cause also notified Dr. Smith that should no request for a hearing
be filed within 30 days, his hearing right would be deemed waived.
On October 20, 2004, a DEA investigator personally served the Order
to Show Cause/Immediate Suspension of Registration on Dr. Smith's
attorney at Respondent's medical office in Philadelphia, Pennsylvania.
Since that date, DEA has not received a request for a hearing or any
other reply from Dr. Smith or anyone purporting to represent him in
this matter.
Therefore, the Deputy Administrator of DEA, finding that (1) thirty
days having passed since personal delivery of the Order to Show Cause/
Immediate Suspension of Registration to the registrant and (2) no
request for hearing having been received, concludes that Dr. Smith is
deemed to have waived his hearing right. See David W. Linder, 67 FR
12,579 (2002). After considering material from the investigative file
in this matter, the Deputy Administrator now enters her final order
without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Deputy Administrator finds that Dr. Smith is registered with
DEA as a practitioner under Certificate of Registration AS6932669 with
a registered location at 1420 Locust Street, Suite 200, Philadelphia,
Pennsylvania. In May 2003, DEA began investigating Dr. Smith as a
result of complaints from area pharmacies that were encountering large
numbers of young, seemingly healthy individuals, filling prescriptions
issued by Dr. Smith for OxyContin and Percocet, both schedule II
controlled substances. These individuals paid cash for their
prescriptions and appeared to be traveling long distances to have them
prescribed and filled.
On June 27, 2003, Independence Blue Cross (IBC) insurance
investigators interviewed IBC beneficiary ``H.B.'' regarding
prescriptions for OxyContin, Percocet and Methadone which had been
issued by Dr. Smith under her name and insurance data. H.B. had never
seen or heard of Dr. Smith and had no medical conditions warranting the
prescriptions. It was also established that H.B.'s son's father,
``M.P.,'' was a heroin addict and that M.P.'s sister, ``L.P.,'' who
also had a history of narcotic's abuse, worked for Dr. Smith as his
office assistant.
On July 9, 2003, NBC investigators interviewed ``C.P.,'' who was
L.P.'s sister. IBC's records reflected that on May 10, 2003, Dr. Smith
issued prescriptions for Percocet and Alprazolam (Xanax), a schedule IV
controlled substance, using C.P.'s name and policy, which were then
paid for by insurance company. Investigators determined C.P. had never
met or been examined by Dr. Smith, that she did not receive the
prescriptions written in her name and had no medical conditions
warranting them.
[[Page 33208]]
On November 6, 2003, DEA Diversion Investigators responded to the
Lombard Apothecary in Philadelphia to interview ``D.N.,'' who had
attempted to fill a prescription for OxyContin issued by Dr. Smith
using D.N.'s mother's name and insurance. D.N. admitted that her mother
had no knowledge of the prescription and was not a patient of Dr.
Smith. D.N. had asked Dr. Smith to issue her fraudulent prescriptions,
as she had no medical insurance of her own. He also had written her a
prescription for OxyContin, using her brother's name and insurance
data. D.N. then used the OxyContin to feed her personal narcotics
addiction.
On November 26, 2003, ``J. S.'' was interviewed by local law
enforcement authorities, with DEA Diversion Investigators present. She
admitted receiving seven to ten prescriptions for OxyContin from Dr.
Smith, per visit, on a weekly basis. These prescriptions would be
written in J.S.'s name, as well as her father's and fiancee's names.
She paid $65.00 per visit and an additional $100.00, each time, to
ensure Dr. Smith would continue providing her fraudulent prescriptions.
Additionally, Dr. Smith would ask J.S. for sexual favors during her
office visits. While she personally declined to fulfill his requests,
as a substitute, she paid another woman $100.00 to perform a sexual act
upon Dr. Smith. J.S. also reported that Dr. Smith's office assistant,
L.P., had provided her blank prescriptions in return for $40.00 and
OxyContin pills.
Dr. Smith also wrote prescriptions for ``A.D.,'' who had heard of
Respondent's ``street'' reputation for providing controlled substance
prescriptions. A.D. was first seen by Dr. Smith in February 2003 and
the only examination involved measuring A.D.'s blood pressure. In March
and April 2003, Dr. Smith issued prescriptions for OxyContin and
Percocet, using both A.D.'s and his wife's names. In February 2004, Dr.
Smith also wrote ten prescriptions for A.D. using A.D.'s name, his
wife's name and a friend's name.
On February 22, 2004, ``S.K.'' was found, apparently unresponsive,
by her mother-in-law, who called 911. S.K. died of a drug overdose and
a few weeks later S.K.'s mother-in-law contacted DEA Diversion
Investigators and advised that S.K. had been addicted to narcotics and
Dr. Smith was the source of her prescriptions. The Philadelphia Medical
Examiner's Office provided DEA investigators 31 prescription bottles
recovered from S.K.'s residence. All of their labels indicated they
were prescribed by Dr. Smith and the majority was for schedule II and
IV controlled substances.
On May 20, 2004, a Confidential Source (CS) was provided $400.00 to
purchase fraudulent prescriptions written by Dr. Smith. The CS used
that money to obtain twelve separate prescriptions from an individual
who, in turn, had received them from Dr. Smith.
On May 27, 2004, Diversion Investigators interviewed ``J.G.'' who,
for six or eight months, had been seeing Dr. Smith on a weekly basis.
J.G. would give Dr. Smith a list of fictitious names and types of
controlled substances he desired and Dr. Smith would issue three
prescriptions under each name, usually for Percocet, OxyContin and
Xanax. Dr. Smith issued between nine and fifteen fraudulent
prescriptions for controlled substances per visit and received $100.00
for each set of three prescriptions. J.G. then sold the prescriptions
to a third party who, in turn, sold the drugs on the street. Dr. Smith
was aware of and knowingly participated in this scheme.
On June 1, 17 and 19, 2004, a CS visited Dr. Smith's medical
office. On each occasion, he obtained fraudulent prescriptions for
Xanax, OxyContin and Percocet, paying Dr. Smith $500.00 for fifteen
prescriptions, written under five different fraudulent identities.
On June 29, 2004, Diversion Investigators were contacted by Family
Meds, a mail order pharmacy in Connecticut. On June 22, 2004, the
pharmacy received five prescriptions for controlled substances written
by Dr. Smith for ``M.B.'' Family Meds had contacted Dr. Smith, who
verified issuing the prescriptions. However, the pharmacy ultimately
refused to fill them and verified that on June 6, 2004, M.B. had filled
identical prescriptions issued by Dr. Smith at another pharmacy.
A review of reports from the Pennsylvania Attorney General's
Office, Bureau of Narcotics Investigation and Drug Control showed that
from January 14, 2002, to April 30, 2004, Dr. Smith issued over 6,500
prescriptions for schedule II narcotic controlled substances. These
prescriptions constituted a significant portion of the total schedule
II prescriptions filled in the Philadelphia and New Jersey area.
Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy
Administrator may revoke a DEA Certificate of Registration and deny any
pending applications for renewal of such registration, if she
determines that the continued registration would be inconsistent with
the public interest. Section 823(f) requires that the following factors
be considered in determining the public interest:
(1) The recommendation of the appropriate state licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under Federal or state laws
relating to the manufacture, distribution, and dispensing of controlled
substances.
(4) Compliance with applicable state, federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health or
safety.
These factors are considered in the disjunctive; the Deputy
Administrator may rely on any one or a combination of factors and may
give each factor the weight she deems appropriate in determining
whether a registration should be revoked or an application for
registration denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16,422
(1989).
As to factor one, the recommendation of the appropriation state
licensing board or professional disciplinary authority, there is no
evidence in the investigative file that the State of Pennsylvania has
yet taken adverse action against Dr. Smith's medical license. However,
``inasmuch as State licensure is a necessary but not sufficient
condition for a DEA registration* * * this factor is not dispositive.''
See Edson W. Redard, M.D., 65 FR 30,616, 30,619 (2000).
With regard to factors two and four, Respondent's experience in
handling controlled substances and his compliance with applicable
controlled substance laws, the investigative file contains overwhelming
evidence that Dr. Smith unlawfully prescribed and diverted controlled
substances over an extensive period of time. He knowingly prescribed
controlled substances to individuals without bona fide doctor-patient
relationships and issued fraudulent prescriptions destined to feed the
recipient's personal addiction or to be sold on the street. He did so
in a calculated manner, for financial gain, violating multiple state
and federal laws and abysmally failing to meet the rudimentary
responsibilities of a physician and registrant. Thus, factors two and
four weigh in favor of a finding that continued registration would be
inconsistent with the public interest.
Factor three, the applicant's conviction record under Federal or
state laws relating to the manufacture, distribution, or dispensing of
controlled substances, is not relevant for consideration, as there is
no evidence Dr. Smith has yet been convicted of any
[[Page 33209]]
crime related to controlled substances. However, it is noted the
investigation has been provided to Federal authorities for possible
initiation of criminal charges.
With respect to factor five, other conduct that may threaten the
public health and safety, Respondent's actions discussed above are also
relevant under this factor. The Deputy Administrator is particularly
troubled by Dr. Smith's efforts to enrich himself at the expense of the
public health and safety. Not only has a large quantity of controlled
substances been diverted over an extensive period of time as a result
of his illegal activities, at least one patient has died of a drug
overdose after taken medications prescribed by Dr. Smith.
The exact degree of suffering and costs, both social and economic,
stemming from Dr. Smith's activities will never be known. Suffice it to
say, his unprofessional and criminal conduct has resulted in the
diversion of large quantities of controlled substances in the
Philadelphia area for a lengthy period of time, with correspondingly
severe consequences for public health and safety.
In sum, Dr. Smith's cavalier disregard for the law and abandonment
of his responsibilities as a physician and registrant cannot be
tolerated. They weigh, irresistibly, in favor of a finding that
continued registration would not be in the public interest.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in her by 21 U.S.C.
823 and 28 CFR 0.100(b), and 0.104, hereby orders that DEA Certificate
of Registration AS6932669, issued to Robert A. Smith, M.D., be, and it
hereby is, revoked. The Deputy Administrator further orders that any
pending applications for renewal or modification of such registration
be, and they hereby are, denied. This order is effective July 7, 2005.
Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-11250 Filed 6-6-05; 8:45 am]
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