[Federal Register: July 14, 2008 (Volume 73, Number 135)]
[Notices]
[Page 40378-40380]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jy08-104]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Randall Relyea, D.O.; Denial of Application
On July 25, 2007, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Randall Relyea, D.O. (Respondent), of Price, Utah. The
Show Cause Order proposed the revocation of Respondent's DEA
Certificate of Registration, BR8899809, as a practitioner, on the
ground that Respondent's ``continued registration is inconsistent with
the public interest.'' Show Cause Order at 1.
The Show Cause Order specifically alleged that in February 2007,
Respondent had engaged in a scheme to have one of his patients obtain
narcotic controlled substances for his personal use. Show Cause Order
at 1. The Show Cause Order also alleged that during the previous year,
Respondent had engaged in ``a similar scheme * * * to acquire
narcotics,'' and that Respondent had been charged with multiple felony
narcotics offenses under Utah law with respect to both schemes. Id.
The Show Cause Order further alleged that in 1999, Respondent had
been ``charged with felonies [under Missouri law] involving [his]
obtaining hydrocodone under a fictitious name.'' Id. The Show Cause
Order alleged that while these charges were later reduced to
misdemeanors and that Respondent had surrendered his DEA registration,
he had ``continued to abuse narcotics at levels indicating recurrent or
habitual use.'' Id.
The Show Cause Order, which notified Respondent of his right to a
hearing or to submit a statement in lieu of a hearing, was served on
him by certified mail to his registered location as evidenced by the
signed return receipt card.\1\ Since that time, neither Respondent nor
his counsel has requested a hearing on the allegations of the Show
Cause Order. Because more than thirty days have passed since service of
the Show Cause Order and neither Respondent nor his counsel has
requested a hearing, I conclude that Respondent has waived his right to
a hearing. See 21 CFR 1301.43(d). I therefore issue this Decision and
Final Order without a hearing based on relevant material contained in
the investigative file and make the following findings.
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\1\ The Return Receipt Card does not indicate the date of
delivery. The card does, however, indicate that DEA received the
card back on August 13, 2007.
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Findings
Respondent was the holder of DEA Certificate of Registration,
BR8899809, which authorized him to handle controlled
substances in schedules II through V as a practitioner. Respondent's
registration expired on April 30, 2007, and Respondent did not file a
renewal application until May 30, 2007. I thus find that Respondent did
not file a timely renewal application as required to maintain his
registration and thus does not have a current registration with the
Agency. See 5 U.S.C. 558(c). Respondent's renewal application is,
however, pending before the Agency.
Respondent previously held another DEA registration. In December
1999, however, Respondent was arrested in Brentwood, Missouri, and
charged with fraudulently attempting to obtain Vicodin Tuss, a schedule
III controlled substance which contains hydrocodone. Respondent was
allowed to plead guilty to the misdemeanor charge of engaging in
deceptive business practices and received a suspended sentence. On
November 22, 2000, Respondent also surrendered his DEA registration.\2\
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\2\ On May 22, 2004, Respondent applied for a new registration.
On his application, Respondent disclosed the criminal proceeding,
his prior drug abuse, and that he had surrendered his earlier
registration. Respondent also stated that he had completed inpatient
rehab and a four-year monitoring program. Upon determining that the
State of Utah has issued Respondent both a medical license and a
controlled substance license, Respondent was granted a new
registration.
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According to the investigative file, at approximately 1 p.m. on
February 8, 2007, Respondent contacted one of his patients and asked
her to assist him in obtaining a narcotic controlled substance for his
wife, who he claimed had torn her anterior cruciate ligament (ACL).
Respondent asserted that other area physicians were out to get him and
that he therefore needed to write the prescription in the patient's
name. Several hours later, Respondent met with the patient at her place
of employment (an Albertson's supermarket) and gave her a prescription
for 90 pills of oxycodone 30 mg and $100 to pay for the prescription.
Later that evening, Respondent returned to the supermarket to
obtain the prescription. The patient told
[[Page 40379]]
Respondent that she did not like the situation and was scared.
Respondent told her that nothing would happen. The patient then gave
the oxycodone and $94 to Respondent. The patient again told Respondent
that she did not feel the situation was right; Respondent told her
``nothing happened.'' After a brief conversation, Respondent left.
Nine days later, another police officer received information
regarding a July 2006 incident involving Respondent and another of his
patients. According to the investigative file, Respondent had performed
shoulder surgery on this patient and issued her a prescription for 60
pills of Percocet 10/650, a schedule II controlled substance which
contains oxycodone. When the patient became ill taking the Percocet,
she saw Respondent to get a prescription for a different drug.
During this visit, Respondent told the patient that the pharmacy
had given her the wrong pills. Respondent took the Percocet from the
patient and gave her a new prescription for a smaller dose.
Subsequently, the patient asked the pharmacy about the alleged
error in the prescription. The pharmacy told her that the error was on
Respondent's part. The pharmacy also told her that the Percocet should
have been returned to the pharmacy and that the return should have been
documented. The pharmacy, however, had no documentation of the Percocet
having been returned.
Moreover, according to the investigative file, on two separate
dates in December 2006, Respondent induced a physician's assistant (PA)
student to fill prescriptions for 90 tablets of oxycodone (30 mg) and
120 tablets of oxycodone (30 mg). Respondent wrote the first
prescription in his wife's name and represented to the student that his
wife had dislocated her patella tendon. The student filled the
prescription and gave it to Respondent.
The second incident occurred on the last day of the student's
rotation. During a conversation in which Respondent and the student
discussed the possibility of his employing her, Respondent wrote out a
prescription and gave it to the student. Upon seeing the prescription,
the student remarked ``Oxycodone?'' Respondent told the student to
``chill out'' because it was Percocet with Tylenol. The student then
commented about the 30 mg strength of the pills; Respondent stated:
``you'd think if you double the strength you get double the effect, but
that isn't the case at all.'' When the student also commented about the
number of pills (120), Respondent stated that ``it would last him all
year.'' The student proceeded to fill the prescription and provided the
oxycodone to Respondent.
In late February 2007, Respondent approached another PA student
stating that his wife had injured her ACL, and that he was trying to
get her in to see a physician. Over the next several days, Respondent
kept telling the student that his wife was in pain and that he was
frustrated because he had forgotten to ask one of his colleagues to
write a prescription. Respondent also stated that because of bad
feelings, he did not believe that other physicians would write his wife
a prescription for a pain medication. Respondent eventually induced the
student to fill a prescription for 60 tablets of oxycodone (30 mg).
Local law enforcement subsequently interviewed a nurse who worked
in the recovery room at a hospital where Respondent performed
surgeries. In late July 2006, Respondent approached her, represented
that he had severe knee pain, and asked her to fill a prescription for
Percocet. The nurse agreed. Respondent wrote the prescription, which
was for 90 tablets of Percocet (10 mg), in her name. The nurse filled
the prescription and provided the drugs to Respondent.
Over the ensuing seven months, Respondent used additional scams to
induce her to fill prescriptions for him such as stating that he had
back pain, and that his wife had torn her ACL and that he could not
find a doctor to perform surgery on her. On other occasions, Respondent
told the nurse that he had wrecked his vehicle and could barely walk.
He also told her that his wife's prescription had been stolen or lost
down the drain.
Using this person, Respondent obtained a total of fifteen
prescriptions for either Percocet (10 mg) or Oxycodone (30 mg).\3\ The
size of the prescriptions was either 90 or 120 tablets.
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\3\ In one instance, the strength of the Oxycodone was 15 mg.
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On March 14, 2007, Respondent was arrested. Thereafter, on May 9,
2007, the Carbon County Attorney filed six informations against
Respondent. As relevant here, the County Attorney charged Respondent
with numerous counts of distributing or arranging the distribution of a
controlled substance, a felony offense under Utah law. See Utah Code
Ann. Sec. 58-37-8(1)(a)(ii). The state criminal proceedings remain
pending as of the date of this Order.\4\
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\4\ The investigative file also includes a copy of the report of
a random drug test performed on Respondent on March 28, 2006.
According to the report, Respondent tested positive for both
hydrocodone and oxycodone; the levels of both drugs exceeded 5000
ng./ml. A document, which is dated March 30, 2007, and which is
attached to the report states: ``excessively high quantitative
random urine values do not reflect one time use, occasional use, or
one time therapeutic use. Such values are consistent with long
standing use and habituation.'' While the investigative file
establishes that these documents were provided by a hospital where
Respondent performed surgeries, the file does not establish the
source of the statement. Accordingly, while I accept the results of
the drug test, which showed that both hydrocodone and oxycodone were
present in Respondent, I do not rely on the statement as to what the
quantitative values establish.
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Discussion
Section 303(f) of the Controlled Substances Act provides that
``[t]he Attorney General may deny an application for [a practitioner's]
registration if he determines that the issuance of such registration
would be inconsistent with the public interest.'' 21 U.S.C. Sec.
823(f). In making the public interest determination, the Act requires
the consideration of the following factors:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing * * * controlled
substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.
Id.
``[T]hese factors are * * * considered in the disjunctive.'' Robert
A. Leslie M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or a
combination of factors, and may give each factor the weight [I] deem[]
appropriate in determining whether a registration should be revoked.''
Id. Moreover, I am ``not required to make findings as to all of the
factors.''Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also
Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005).
Having considered the entire record and all of the factors, I
conclude that Respondent's experience in dispensing controlled
substances (factor two) and his record of non-compliance with
applicable Federal law (factor four) demonstrate that granting
Respondent's application for a new registration would be ``inconsistent
with the public interest.'' 21 U.S.C. 823(f).\5\ Accordingly,
Respondent's application will be denied.
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\5\ In light of my findings with respect to factors two and
four, I conclude that it is unnecessary to make findings with
respect to the remaining factors.
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Respondent's experience in dispensing controlled substances is
[[Page 40380]]
characterized by his criminal behavior in issuing numerous fraudulent
prescriptions for such highly abused controlled substances as oxycodone
and Percocet. While the record contains no information as to whether
under Utah law and regulations, a physician can ever lawfully prescribe
a controlled substance to a family member or himself, it is clear that
Respondent issued numerous fraudulent prescriptions because the
prescriptions were written in the names of persons who had no medical
need for the controlled substance, and who were, after filling the
prescription, to turn the drugs over to him.
Moreover, the stories that Respondent told to induce others to
assist him were so implausible (e.g., that no doctor would write a
prescription for, or perform surgery on, his wife) or were consistent
with classic scams engaged in by persons who seek controlled substances
for illicit purposes (e.g., that his wife's prescription had been
stolen or lost down the drain), that it is clear that the prescriptions
were written with fraudulent intent. See Randi M. Germaine, 72 FR
51665, 61666 (2007) (noting expert testimony regarding use of scams by
drug abusers seeking additional drugs such as early refill attempts and
claiming that one's drugs have been stolen).
This conduct violated Federal law. See 21 U.S.C. 843(a)(3)
(rendering it ``unlawful for any person knowingly or intentionally * *
* to acquire or obtain possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge''); id.
Sec. 844(a) (``It shall be unlawful for any person knowingly or
intentionally to possess a controlled substance unless such substance
was obtained directly, or pursuant to a valid prescription or order
from a practitioner, while acting in the course of his professional
practice, or except as otherwise authorized by this subchapter * *
*.''). Indeed, it is particularly disturbing that Respondent was aided
in his schemes by several health care professionals.
There is also substantial evidence that Respondent was personally
abusing the drugs he obtained through his various schemes. The
urinalysis results indicated that Respondent was using both hydrocodone
and oxycodone. Moreover, when one of the PA students commented about
his seeking oxycodone, Respondent told her to ``chill out,'' because it
was Percocet with Tylenol. Moreover, when the student commented about
the strength of the pills, Respondent stated that ``you'd think if you
double the strength you get double effect, but that isn't the case,''
and also said that the 120 pills ``would last him all year.'' It is
thus clear that Respondent was once again abusing controlled
substances.
Respondent's experience in dispensing controlled substances and his
record of non-compliance with Federal controlled substance laws is thus
characterized by his issuance of numerous fraudulent prescriptions and
his personal abuse of controlled substances. These findings amply
demonstrate that Respondent cannot be entrusted with a new registration
and that granting his application would be ``inconsistent with the
public interest.'' 21 U.S.C. 823(f).
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well
as 28 CFR 0.100(b) & 0.104, I order that the application of Randall
Relyea, D.O., for a DEA Certificate of Registration as a practitioner
be, and it hereby is, denied. This order is effective August 13, 2008.
Dated: June 27, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-15923 Filed 7-11-08; 8:45 am]
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