[Federal Register Volume 76, Number 18 (Thursday, January 27, 2011)]
[Notices]
[Pages 4940-4944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1693]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Algirdas J. Krisciunas, M.D.; Revocation of Registration
On January 19, 2010, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and Immediate
Suspension of Registration (Order) to Algirdas J. Krisciunas, M.D.
(``Registrant''), of Lauderdale Lakes, Florida. The Order proposed the
revocation of Registrant's DEA Certificate of Registration, BK4015334,
and the denial of any applications for renewal or modification of his
registration, on the ground that his ``continued registration is
inconsistent with the public interest, as that term is defined in 21
U.S.C. Sec. 823(f).'' Order, at 1. Based on the allegations presented,
I also concluded that Registrant's continued registration during the
pendency of this proceeding ``constitutes an imminent danger to the
public health and safety'' and immediately suspended his registration.
Id. at 2.
The Order alleged that Registrant was the ``owner of Social Medical
Center (SMC), a pain clinic located at [his] registered location'' and
that he ``issue[d] many purported prescriptions for controlled
substances'' from there. Id. at 1. The Order further alleged that
Registrant ``prescribed and dispensed controlled substances, including
oxycodone \1\ and alprazolam,\2\ to two undercover law enforcement
officers on five different occasions from July 13 through September 10,
2009, in violation of 21 U.S.C. Sec. Sec. 841(a)(1) and 846.'' Id. at
2. The Order also alleged that Registrant and his staff ``falsified
medical records for the two undercover officers'' and that Registrant
``advised the undercover officers how to falsify medical records to
make it appear that they had legitimate medical conditions warranting
the use of controlled substances.'' Id. The Order next alleged that
Registrant and his staff ``sold the medical records of others to an
undercover officer so that the records could be altered to appear that
they were the medical records of the undercover officer.'' Id.
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\1\ Oxycodone is a schedule II controlled substance. 21 CFR
1308.12(b)(1)(xiii).
\2\ Alprazolam is a schedule IV controlled substance. 21 CFR
1308.14(c)(1).
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The Order further alleged that ``[b]ased on [his] consultations
with, and examinations of, the two undercover officers,'' Registrant
``knew, or should have known, that neither of the undercover officers
had a legitimate medical condition warranting the prescribing of
controlled substances'' because the ``undercover officers provided
inconsistent statements regarding the nature of their alleged injuries
and gave negative answers when queried about any pain they were
experiencing.'' Id. The Order thus alleged that Registrant ``issu[ed]
[controlled substance] prescriptions outside the usual course of
professional practice or for other than a legitimate medical purpose,''
in violation of Federal law. Id. (citing 21 U.S.C. 823(f)(4); 21 CFR
1306.04).
Finally, the Order alleged that on July 1, 2009, Registrant's
``office staff sold 53 oxycodone 30 mg pills to an undercover officer
for $500, in violation of 21 U.S.C. Sec. [] 841(a)(1),'' and that
``[t]his transaction occurred at [his] office during regular business
hours while [he was] on the premises.'' Id. The Order thus alleged that
Registrant ``failed to exercise proper oversight of [his] office staff
or take proper measures to ensure the safeguarding of controlled
substances stored at [his] office.'' Id.
Based on the above, I made the ``preliminary finding that
[Registrant's] continued registration is inconsistent with the public
health and safety.'' Id. (citing 21 U.S.C. 823(f), 824(a)(4)). Having
concluded that Registrant's ``continued registration while these
proceedings are pending constitutes an imminent danger to the public
health and safety because [he has] repeatedly displayed a willingness
to prescribe widely abused controlled substances for other than a
legitimate medical purpose,'' I further ordered the immediate
suspension of his registration. Id. (citing 21 U.S.C. 824(d); 21 CFR
1301.36(e); 28 CFR 0.100). Id.
On January 20, 2010, the Order, which also notified Registrant of
his rights to either request a hearing or submit a written statement in
lieu of a hearing, the procedures for doing either, and the
consequences for failing to do either, was personally served on
Registrant by a DEA Diversion Investigator. Since the date of service
of
[[Page 4941]]
the Order, more than thirty days have passed and neither Registrant,
nor anyone purporting to represent him, has requested a hearing on the
allegations or submitted a written statement. 21 CFR 1301.43(a)-(c). I
therefore find that Registrant has both waived his right to a hearing
and to submit a written statement, and I issue this Decision and Final
Order based on relevant evidence contained in the Investigative Record
submitted by the Government.\3\ 21 CFR 1301.43(d)-(e). I make the
following findings.
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\3\ In its Request for Final Agency Action, the Government
argues that revocation is warranted under the additional ground that
Registrant ``has been convicted of a felony under subchapter 1 of
chapter 13, Title 21, United States Code.'' Request for Final Agency
Action, at 4. Thereafter, the Government submitted a First
Supplement to Request for Final Agency Action which argued that
revocation was also warranted because on August 20, 2010, the State
of Florida issued an Order of Emergency Suspension, which
immediately suspended Registrant's medical license and that he no
longer has authority under State law to dispense controlled
substances. First Supplement to Request for Final Agency Action, at
1 (citing 21 U.S.C. 824(a)(3)). Attached to the filing was a copy of
the State order.
Finally, the Government submitted a Second Supplement to
Request for Final Agency Action, which noted that on October 13,
2010, the U.S. District Court for the Southern District of Florida
entered a judgment, which adjudicated Registrant guilty of six
felony counts under the Controlled Substances Act. Attached to the
filing was a copy of the Judgment.
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Findings
Registrant holds DEA Certificate of Registration, BK4015334, which
authorizes him to dispense as a practitioner controlled substances in
schedules II through V. Cert. of Reg. Hist. (March 18, 2010).
Registrant is registered at the address of 3401 West Oakland Park
Blvd., Lauderdale Lakes, Florida 33311; this address was the location
of a pain clinic which was owned by his wife, Maria Bulich, and which
did business under the name of ``Social Medical Center'' (SMC). Id.;
Aff. of Task Force Officer (TFO) 1, at 1, 3.
On July 1, 2009, a Broward County Sheriff's Office detective
assigned to a DEA Task Force attempted an undercover buy at SMC. Using
the name Bill Rix,\4\ the detective posed as a personal trainer who had
recently moved to the area and who ``needed a supplier of pain medicine
due to discomfort from an old auto accident.'' \5\ Aff. of TFO1, at 1.
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\4\ Throughout this decision, each TFO's assumed name is used
interchangeably with the titles of TFO 1 and TFO 2.
\5\ The officer wore a wire during the visit to record it; the
recording was later transcribed.
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Immediately on entering SMC, Rix met both Registrant and his
receptionist, M.L.A. Id. M.L.A told Rix that, to obtain controlled
substances from Registrant, he would need an MRI report (to show ``the
nature and location of chronic pain-causing injuries'') and a pharmacy
drug profile (to ``show the drugs the patient has been receiving'').
Registrant stated that this was because state regulations required that
a chronic pain patient first undergo a thirty-day regimen with non-
controlled pain medications and that controlled substances could only
be prescribed upon a determination that the non-controlled medications
were not effective. Id. at 2; Tr. 3-4 (July 1, 2009). When Rix told
Registrant and M.L.A. that his most recent MRI was from 2002, both
Registrant and M.L.A. told Rix that he needed a newer MRI and referred
him to a mobile MRI, which could probably perform the exam the same day
and would charge $250. Tr. 6 (July 1, 2009). Registrant further
explained that he needed to have documentation on file to adequately
justify his prescribing of controlled substances in the event that DEA
investigators inspected the clinic. Id. at 9.
After Registrant exited the room, Rix asked M.L.A. and another
female, M.R., whether he could just change the date on his old MRI. Id.
at 11. In response, M.L.A. offered to sell Rix an MRI, on which he
could change the name and date, as well as a pharmacy record. Id. at
11-12. M.R. then asked Rix whether he currently had controlled
substances or needed some, and offered to sell him oxycodone 30 mg
pills for $10 per pill; Rix and M.R. agreed that he would buy 50 pills.
Id. at 13-16. M.R. then counted out 53 oxycodone 30 mg pills, put them
in a prescription bottle, and sold them to Rix for $500. Aff. of TFO 1,
at 2. Rix confirmed with M.L.A. and M.R. that he would take the MRI and
change the date, but then asked whether someone would be calling the
radiologist to verify the study. Tr. 17 (July 1, 2009). M.L.A. assured
him that there would be no problem with the verification, as she was
the individual who verified MRIs. Id. She also stated that she would
take care of the pharmacy report and that Rix just needed to alter the
name and date on the MRI and bring it back. Id. at 21.
Rix then stated, ``I'm glad you guys came back up here[.] I was
like you got to be kidding me with what he was telling me, I'm like to
go through all that [b.s.], are you kidding.'' Id. M.L.A. replied: ``I
know I wish you would have talked to me first, but he was there.'' Id.
Later, M.L.A. stated that ``[Registrant] knows, he knows. He'll write
you whatever you want, but he has to cover his ass too.'' Id. at 22.
She then added that Registrant would give Rix up to 240 oxycodone
pills. Id.
On July 13, 2009, Rix returned to SMC with the altered MRI and an
altered pharmacy profile. Aff. of TFO 1, at 3. Rix handed the records
to M.L.A. and then met with Registrant in the presence of his wife,
Maria Bulich. Id. Registrant examined the records and inquired as to
the type of accident that had caused Rix's pain. Id. Rix responded that
he had been in a car accident. Id. With regard to the pharmacy profile,
Registrant told Rix that he would have to reduce the amount of Xanax he
was taking because it could cause memory loss. Id. Registrant then
stated that he could not provide that much oxycodone in 80 mg doses;
Rix replied that oxycodone 30 mg would suffice. Id.
After that, M.L.A. gave Rix a form to complete, which included a
diagram for specifying the location of his pain and blanks for noting
his pain levels. Id. Rix did not complete either of these sections. Id.
In the examining room, Registrant noticed the incomplete form and asked
Rix to complete it. Id. Although Rix's MRI indicated that he had back
pain, on the diagram Rix noted that he had neck pain. Id. Registrant
noticed the discrepancy and changed the marking on the diagram,
explaining that the medical record needed to match the MRI to satisfy
any inspectors who might examine the records. Id.
Registrant and Rix then discussed the number of oxycodone 30 mg
pills Registrant would need to prescribe to provide the equivalent of
the dosages noted in Rix's pharmacy profile. Id.; Tr. 31 (July 13,
2009). While Rix's profile indicated that he had been taking two 80 mg
pills a day (totaling 160 mg per day), Registrant offered to prescribe
six tablets of oxycodone 30 mg per day (totaling 180 mg per day). Tr.
31 (July 13, 2009). The conversation then turned to Xanax, with Rix
stating that he was not ``especially interested'' in the drug. Aff. of
TFO 1, at 3-4; Tr. 32-33 (July 13, 2009).
Rix then asked Registrant what he should write on the forms so that
his medical record would look legitimate to the inspectors. Aff. of TFO
1, at 4. According to Rix, Registrant instructed him to write false
information, such as that Rix could not lift more than twenty pounds
even though he had told Registrant that he was a personal trainer who
frequently lifted weights. Id.; Tr. 36 (July 13, 2009). As to a
question regarding whether he exercised, Registrant told Rix that ``you
don't want to compromise yourself'' and to ``just put down swimming and
walking'' because ``any kind of catch word * * * they get hang [sic] up
on.'' Tr. 37 (July 13, 2009).
Registrant and Rix then went through the questions on the form
together, and
[[Page 4942]]
Registrant conducted a brief physical examination of Rix. Id. at 35-45,
48-49. Rix deliberately followed Registrant's instructions without
complaining of any problems and said that he felt ``stiff'' but that he
had no pain. Aff. of TFO 1, at 4. As to his pain rating, Registrant
explained that ``nine is after you had an operation, right after.'' Tr.
36 (July 13, 2009). After Rix responded, ``Okay so I don't have an
operation,'' Registrant stated, ``I'd say about seven or eight maybe
you know * * * Ah without the medicines.'' Id.
Rix then read one of the form's questions to Registrant: ``Rate
your pain by circling the number that best describes your pain at its
worst at the last of the month'' and asked ``is that where I put seven
or eight?'' Id. at 38. Registrant stated, ``actually no.'' Id. He then
explained, ``you were helped with medication so.'' Id. Proceeding to
the next question, which asked about his pain level ``on average,'' Rix
asked whether that should be ``four.'' Id. Registrant answered, ``Yeah
five or something like that.'' Id.
When Registrant asked whether he had pain radiating down his legs,
Rix replied ``no.'' Id. at 40. Registrant then told Rix that ``I would
not want to put down good or poor, just fair.'' Id. Next, Registrant
had Rix bend at his waist and said, ``Okay this is the important thing,
are you on medicines now?''; Rix answered in the affirmative. Id. at
43. Registrant then stated: ``Because today you are in no pain bending
forward because you are on medicines.'' Id.
When Registrant had Rix bend to one side, he stated that he did not
have any pain but was ``[j]ust tight.'' Id. at 44. Registrant had Rix
place his arms on his hips and then turn, at which point Rix again
reported having ``[t]ightness.'' Id. Registrant then coached Rix: ``No
use the correct word, pain,'' and explained that tightness ``does not
qualify pain medicine.'' Id. Rix then reported pain, and Registrant
commented, ``Don't confuse the inspectors with anything.'' Id.
Registrant and Rix then discussed the latter's occupation as a
personal trainer. When Rix asked ``Can we scratch that out[?],''
Registrant replied, ``No that's fine * * * but ah you must say that you
don't do anything, any heavy lifting.'' Id. at 45. Rix then said ``I
just instruct,'' and Registrant replied, ``Yeah you instruct.'' Id.
As the appointment neared its end, Rix asked Registrant whether he
had a referral program and suggested that he could refer people to him.
Id. at 53. Registrant said ``sure,'' but that ``they have to qualify of
course.'' Id.
At the conclusion of the visit, Registrant issued Rix three
prescriptions: One for 180 oxycodone 30 mg, One for 90 oxycodone 15 mg,
and one for 30 alprazolam (Xanax) 2 mg. Aff. of TFO 1, at 4. Registrant
then gave the prescriptions to his wife, who filled them and collected
$740 from Rix for both the examination and the medication. Id. Ms.
Bulich indicated that she would pay Rix $20 for each new patient he
referred. Id.; Tr. 61 (July 13, 2009). In his affidavit, the TFO
summarized his visit stating that ``[t]he entire process was one in
which [Registrant] coached or led me into giving answers that would
qualify me to receive pain medication, not as an examination oriented
toward determining my medical condition and needs.'' Aff. of TFO 1, at
4.
On July 30, 2009, another TFO visited Registrant using the name of
Keith E. Anderson. Aff. of TFO 2, at 1. On entering the clinic,
Anderson met M.L.A. and told her that ``Bill'' had referred him. Aff.
of TFO 2, at 1-2. Anderson brought with him an MRI report and a
pharmacy profile which were copies of the ones that Rix had received
from M.L.A. on July 1, 2009, but which were altered to state that they
were Anderson's. Id. at 2. Another female employee, whose name is
unknown, then gave Anderson a medical form to complete; however, he
left much of it blank. Id.
While in Registrant's office, Registrant asked Anderson what kind
of accident he had had; Anderson stated that he had been in a car
accident. Id. Anderson then told Registrant that he wanted his help in
completing the medical form ``so that [they] would not get in trouble
with the inspectors.'' Id. As the two discussed the forms, Registrant
asked Anderson what drugs he had been taking and advised him to stop
taking Soma and to reduce the amount of Xanax. Id.
Registrant filled out the form and told Anderson ``you do not lift
more than 15 pounds'' and that ``no heavy lifting [was] allowed.'' Id.
He also calculated ``how many oxycodone 30 mg pills he should prescribe
to be equivalent to the 80 mg pills reflected in the pharmacy
profile.'' Id. Registrant further ``commented about being careful about
inspectors who would look at the paperwork.'' Id.
During the visit, Registrant administered several movement tests on
Anderson. Id. Anderson stated that ``[w]hen [he] said [he] had `a
little pain,' or `no pain,' [Registrant] said that `if you had no
medicines, you would have pain?' '' Id. According to the TFO, ``[t]he
effect of the conversation was to coach me on how to respond in order
to receive the pain killers I wanted.'' Id.
Registrant issued Anderson prescriptions for 60 oxycodone 30 mg, 30
Xanax 2 mg, and 120 Percocet 10/325 mg. Id. at 2-3. Registrant then
gave the prescriptions to his wife, who filled the oxycodone and Xanax.
Id. at 3. However, because the clinic did not have Percocet, Anderson
was given the prescription to fill elsewhere. Id. Anderson mentioned to
both Registrant and his wife that he had been referred by ``Bill,''
``who `should get a kickback' '' for the referral; Registrant's wife
noted that she would ``take care of it.'' Id. Anderson paid a total of
$320 for the visit and the controlled substances. Id.
On August 6, 2009, Rix returned to SMC, and noted on the medical
form that he ``felt no pain and no interference with [his] daily
activities.'' Aff. of TFO 1, at 4-5; Tr. 1 (Aug. 6, 2009). Rix asked
Registrant what he could put on the form to obtain larger quantities of
the drugs. Aff. of TFO 1, at 5. Registrant told him that his timing was
bad because DEA was increasing its scrutiny of pain clinics and even
sending in undercover operatives. Id.
Rix and Registrant continued their discussion of the possibility of
increasing the quantity of the drugs. Registrant told Rix to fill in a
response to a certain question as ``maybe two or three you know some
back pain'' so it would support an increase at the next visit. Tr. 14
(Aug. 6, 2009). Later, Rix sought to confirm that circling two or three
on the form ``would give us a reason to increase [the medications] a
little bit.'' Id. at 19. Registrant responded, ``Yeah a little bit but
not necessarily * * * and in case, depending on the finding in you
[sic] case you know you need.'' Id. Registrant then stated that Rix did
``have arthritis,'' ``disk dislocation,'' ``signs of * * * trauma,'' as
well as ``pressure on the nerves,'' specifically an ``S1 * * * nerve
root abutment'' that was ``almost a reason for [an] operation.'' Id. at
20.
When Rix asked whether he should have an operation, Registrant said
that he ``wouldn't do it,'' and added that ``general statistics show
that you should wait as long as you can before the surgery because even
after the surgery some things don't work out'' and that the surgery is
done when the ``indication is loss of nerve * * * showing muscle
atrophy.'' Id. at 20-21. When Rix explained that he had not marked that
area on the medical form, Registrant replied, ``well I'll put lower
back pain.'' \6\ Id. at 22. As the TFO stated in his Affidavit, ``it
was obvious that my
[[Page 4943]]
medical records would contain false information about fictitious
pain.'' Aff. of TFO 1, at 5.
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\6\ By that point, Registrant had apparently taken over the task
of completing the medical form. See Tr. 15 (Aug. 6, 2009), at 15.
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The visit concluded with Registrant issuing prescriptions for 180
oxycodone 30 mg pills, 90 oxycodone 15 mg pills, and 30 alprazolam 2 mg
pills, which Registrant's wife filled for Rix. Id. Rix paid
Registrant's wife $600 after deducting $20 for referring Anderson. Id.
On August 19, 2009, Anderson returned to the clinic (eleven days
before his prescriptions should have run out) and sought more pain
medication. Aff. of TFO 2, at 3; Tr. 1 (Aug. 19, 2009). Registrant
advised him to ``[t]ry next week'' because if the police caught him
with the drugs ``they can make a big issue * * * out of it.'' Tr. 1
(Aug. 19, 2009). Anderson stated that he would be going to Georgia the
next day, to which Registrant stated that ``if they catch you on the
road to Georgia that's even worse.'' Id. at 2. Registrant referred to
the investigation of Michael Jackson's doctor and stated that there had
been two recent overdose deaths in Broward County. Id. Registrant also
expressed his concern that the police would follow Anderson from the
clinic and stop him. Id. At this visit, Registrant did not write any
prescriptions and told Anderson that he could come back a few days
early, but he could not come back as early as he had this time. Aff. of
TFO 2, at 3; Tr. 4 (Aug. 19, 2009).
Anderson returned to SMC on August 27, 2009. Aff. of TFO 2, at 3;
Tr. 1 (Aug. 27, 2009). Anderson stated that he had not gone to Georgia,
but that he would be leaving for Georgia imminently and that he wanted
to increase his medications. Tr. 18 (Aug. 27, 2009). Registrant replied
that it was the ``[w]rong time,'' and that in the aftermath of Michael
Jackson's death and the two recent overdose deaths in Broward County,
``they have * * * extra workers inspecting, they got a lot of money
from the government so they're scrutinizing.'' Id. at 19.
Anderson told Registrant that he only wanted oxycodone and Xanax,
but not Soma or Percocet. Id. Anderson further stated that he had run
out of oxycodone two weeks early and had bought additional oxycodone
from a friend. Id. at 20-21.
Notwithstanding Anderson's statement, Registrant neither counseled
him on the danger of addiction and abuse or that his purchase of
oxycodone from a friend was illegal. Registrant agreed to give Anderson
90 oxycodone 30 mg, which was 30 more pills than he had given him the
previous month, and 60 oxycodone 15 mg, which Anderson had not received
at his first appointment. Id. at 22. Although Registrant stated that he
would like to reduce Anderson's consumption of Xanax from 2 mg to 1 mg
per day, when Anderson stated that he ``would rather have the 2 mill,''
Registrant relented and agreed to prescribe the 2 mg strength. Id. at
23-24.
Registrant then told Anderson that he needed to complete the
medical form, and Anderson asked ``[w]hat numbers do I need'' to put
down for his pain levels. Id. While Registrant told Anderson that he
should ``[b]e honest,'' Registrant then advised him as to the value of
the various numbers and agreed to sign after Anderson stated he would
put down seven or eight for his pain level in the last week. Id. at 25-
26. The visit concluded with Registrant giving Anderson prescriptions
for 90 oxycodone 30 mg, 60 oxycodone 15 mg, and 30 alprazolam 2 mg,
which were filled by Registrant's wife and for which he paid $400. Aff.
of TFO 2, at 4. In his Affidavit, the TFO stated that Registrant did
not do ``any physical tests for pain response or movement
restrictions'' at this visit. Id.
On September 10, 2009, Rix returned to Registrant for the fourth
time. Aff. of TFO 1, at 5; Tr. 1 (Sept. 10, 2009). Rix told Registrant
that he had been out of town training to become a stunt man, ``a job
obviously incompatible with chronic pain.'' Aff. of TFO 1, at 5; Tr. 16
(Sept. 10, 2009). Registrant laughed and said: ``You better keep a
secret.'' Tr. 16 (Sept. 10, 2009). Rix then told Registrant that he had
left the medical form ``blank'' so that ``we can increase the
medications because last time I didn't fill it out right,'' to which
Registrant did not directly respond. Id. However, shortly thereafter
Registrant wrote on the form that Rix stated that he ``ran out of
medication'' and Registrant offered to increase the prescription for
oxycodone 30 mg from 180 to 210 pills. Id. at 17. Registrant then
stated that while he would increase the oxycodone, he would decrease
the Xanax from 2 mg pills to 1 mg pills because ``that makes [you] look
reasonable.'' Id. at 18.
Next, Rix stated that he would refer a female client with knee
pain. Id. at 19. Registrant stated that low back pain would be more
``substantial'' and that she could get an MRI done for just $250 at a
couple of places. Id. Registrant told Rix that a new law passed in
February would require that she be put on non-controlled substances
unless she could present a pharmacy profile that showed she was already
receiving controlled substances. Id. at 19-20.
Rix replied that the woman had said she had used controlled
substances and that he had given her several of his oxycodone 15 mg
pills, which she ``tried'' and reported feeling ``good.'' Id. at 20.
Registrant did not, however, tell Rix not to share his medication. See
id. Rix then stated that he had only given the woman five oxycodone 15
mg pills, that he did not know ``how she took em when she did it,'' and
that ``she said they helped.'' Id. at 21. Registrant replied, ``No of
course we will cover you, you know, but the question is does she * * *
need that much.'' Id.
Registrant then noticed that Rix had left blank a certain question
on the medical form and mentioned it to Rix. Id. at 23. Rix responded,
``No remember you told me last time to leave that blank because I
filled it out incorrectly where you said it couldn't increase the
medicines.'' Id. at 24. Registrant replied: ``If you could be thinking,
insomnia.'' Id. Although Rix stated that he absolutely did not have
insomnia, Registrant stated, ``With Xanax, let's put down'' insomnia.
Id.
Registrant then asked Rix to rate numerically how his pain had
affected his general activity in the prior week. Id. Rix answered that
his pain did not interfere, ``but that's where you told me we had to be
careful because we couldn't increase'' the drugs. Id. Continuing, Rix
stated that ``I put it didn't interfere at all last time and you said
you could not increase [the drugs] because it said it does not
interfere [and] I think you said last time to put three or four.''
Registrant responded, ``Okay so three, mood about two?'' Id.
The conversation then returned to Rix's having gone to a school for
stunt men and his purported bad back. Registrant stated, ``Oh I'm
telling you * * * I shouldn't even know about it.'' Id. at 26.
Registrant then said that ``sometimes there will be people coming in
here,'' specifically undercover officers. Id. at 28. Laughing, he
stated that the undercover officers were ``trying to provoke'' him. Id.
As they continued to discuss Rix's work as a stunt man, Rix assured
Registrant that he would not do any such work in Florida. Id.
Registrant then stated that ``they could accuse'' Rix of something and
that the authorities might say that ``your MRI is fake.'' Id. at 30.
Registrant then issued Rix prescriptions for 210 oxycodone 30 mg,
90 oxycodone 15 mg, and 30 Xanax (alprazolam) 1 mg, which were
dispensed by the former's wife. Aff. of TFO 1, at 5. Rix paid $678 for
the controlled substances and the visit. Id. at 5-6.
On January 7, 2010, a Federal Grand Jury indicted Registrant.
United States v. Algirdas Krisciunas et al., No. 10-60007-CR (S.D. Fla.
Jan. 7, 2010)
[[Page 4944]]
(Indictment). The indictment charged Registrant with one count of
conspiring with M.L.A. and M.I.R. (two of the clinic's staff) to
distribute oxycodone, a controlled substance, ``[f]rom on or before
June 29, 2009 to on or about September 9, 2009,'' in violation of 21
U.S.C. 841(a)(1) and 846. Id. The indictment further charged Registrant
with five counts of dispensing oxycodone (on July 13 and 30, August 6
and 27, and September 9, 2009), a controlled substance, in violation of
21 U.S.C. 841(a)(1). Id.
On March 11, 2010, a Federal Grand Jury issued a superseding
indictment. United States v. Algirdas Krisciunas and Maria Teresa
Bulich, Superseding Indictment (S.D. Fla. Mar. 11, 2010), No. 10-60007-
CR-HURLEY(s). The new indictment charged Registrant and his wife with
conspiring to unlawfully dispense oxycodone; it also charged Registrant
and his wife with unlawfully dispensing oxycodone on each of the five
dates as charged in the initial indictment. Id. at 1-3 (citing 21
U.S.C. 841(a)(1), 846).
Thereafter, Registrant went to trial. On July 6, 2010, a jury found
Registrant guilty on all six counts. U.S. v. Algirdas Krisciunas,
Verdict (July 6, 2010). On October 13, 2010, the District Court entered
its Judgment adjudicating Registrant guilty on all six counts and
sentenced him to 97 months imprisonment to be followed by three years
of supervised release. U.S. v. Algirdas Krisciunas, Judgment (Oct. 13,
2010).
Based on Registrant's convictions, on August 20, 2010, the Florida
Surgeon General ordered the summary suspension of his medical license.
Order of Emergency Suspension of License, at 2-3 (citing Fla. Stat.
Sec. 456.074(1)).
Discussion
Section 304(a) of the CSA provides that a ``registration pursuant
to section 823 of this title to * * * dispense a controlled substance *
* * may be suspended or revoked by the Attorney General upon a finding
that the registrant * * * has been convicted of a felony under this
subchapter or subchapter II of this chapter * * * relating to any
substance defined in this subchapter as a controlled substance.'' 21
U.S.C. 824(a)(2). Section 304(a) further provides that a registration
may be revoked or suspended where a registrant ``has had his State
license or registration suspended, revoked, or denied by competent
State authority and is no longer authorized by State law to engage in
the * * * dispensing of controlled substances.'' \7\ Id. Sec.
842(a)(3).
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\7\ Section 304(a)(4) also provides for the suspension or
revocation of a registration ``upon a finding that the registrant *
* * has committed such acts as would render his registration * * *
inconsistent with the public interest as determined under * * *
section'' 823(f). 21 U.S.C. 824(a)(4). In light of my finding that
Registrant has been convicted of six felony counts of violating the
CSA, I conclude that it is not necessary to discuss the
applicability of this provision to his misconduct.
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As found above, the United States District Court has adjudicated
Registrant guilty of one count of conspiring to unlawfully distribute
oxycodone, a schedule II controlled substance, in violation of 21
U.S.C. 846, and five counts of unlawfully dispensing oxycodone, in
violation of 21 U.S.C. 841(a)(1). Both provisions are felonies under
the CSA. See 21 U.S.C. 841(b)(1)(C) (except as otherwise provided,
``[i]n the case of a controlled substance in schedule I or II * * *
such person shall be sentenced to a term of imprisonment of not more
than 20 years''); id. Sec. 846 (``Any person who * * * conspires to
commit any offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense, the commission of
which was the object of the * * * conspiracy.''). Registrant's
convictions for these offenses provide reason alone to revoke his
registration and denied any pending applications. 21 U.S.C. 824(a)(2).
I further conclude that Registrant's registration should be revoked
on the ground that the State of Florida has suspended his State medical
license and thus, he no longer has authority to dispense controlled
substances in the State. 21 U.S.C. 824(a)(3). The CSA defines the term
``practitioner'' as a person ``licensed, registered, or otherwise
permitted, by the United States or the jurisdiction in which he
practices * * * to distribute, dispense * * * [or] administer * * * a
controlled substance in the course of professional practice.'' Id.
Sec. 802(21). Likewise, the CSA limits registration to an applicant
who is ``authorized to dispense * * * controlled substances under the
laws of the State in which he practices.'' Id. Sec. 823(f). Based on
these provisions, DEA has held repeatedly that a practitioner whose
State authority to dispense controlled substances has been suspended or
revoked is not entitled to maintain his CSA registration. See John B.
Freitas, 74 FR 17524, 17525 (2009); Worth S. Wilkinson, 71 FR 30173
(2006); Stephen J. Graham, 69 FR 11661, 11662 (2004); Dominick A.
Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 11920
(1988). I therefore conclude that Registrant's loss of his State
authority provides a further ground to revoke his registration and to
deny any pending application to renew or modify his registration.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as by 28 CFR 0.100(b) and 0.104, I order that DEA
Certificate of Registration, BK4015334, issued to Algirdas J.
Krisciunas, M.D., be, and it hereby is, revoked. I further order that
any pending application of Algirdas J. Krisciunas, M.D., to renew or
modify his registration be, and it hereby is, denied. This Order is
effective immediately.\8\
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\8\ For the same reason that I ordered the immediate suspension
of Registrant's registration, I conclude that the public interest
requires that this Order be effective immediately. 21 CFR 1316.67.
Dated: January 18, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-1693 Filed 1-26-11; 8:45 am]
BILLING CODE 4410-09-P