[Federal Register Volume 76, Number 69 (Monday, April 11, 2011)]
[Notices]
[Pages 20025-20032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8543]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 09-2]
Alan H. Olefsky, M.D.; Denial of Application
On August 22, 2008, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Alan H. Olefsky, M.D. (Respondent), of Chicago, Illinois.
The Show Cause Order proposed the denial of Respondent's application
for a DEA Certificate of Registration as a practitioner, ``for reason
that [Respondent's] registration would be inconsistent with the public
interest, as that term is used in 21 U.S.C. 823(f).'' ALJ Ex. 1, at 1
(citing 21 U.S.C. 823(f) & 824(a)(4)).
The Show Cause Order specifically alleged that in 1989, Respondent
issued ``two false prescriptions for [the] controlled substances
[Percocet and Halcion (triazolam), schedule II and schedule IV drugs,
respectively] in the names of others and attempted to have them filled
at a pharmacy in Florida.'' Id. The Show Cause Order alleged that on
January 9, 1992, and after a hearing, the Administrator revoked
Respondent's then-existing DEA registration having found the
allegations proved and that Respondent had lied during the hearing
regarding ``the circumstances surrounding [his] misconduct.'' Id.
Next, the Show Cause Order alleged that ``[f]rom at least December
2002, through October 2004,'' Respondent ``again issued false
prescriptions for various controlled substances in the names of [M.G.,
V.G., and T.C.]'' and that ``[t]hese prescriptions were for
[Respondent's] personal use.'' Id. The Show Cause Order then alleged
that on May 25, 2005, ``DEA issued an Order proposing to revoke
[Respondent's] DEA registration * * * based upon [his] issuing false
prescriptions,'' and that on July 20, 2007, the Deputy Administrator
issued a final order denying Respondent's application (his registration
having expired), having found that he ``had issued the prescriptions
for [his] personal use and that such conduct violated federal law.''
Id. at 1-2 (citing 21 U.S.C. 843(a)(3)). Finally, the Order alleged
that Respondent has ``also exhibited a pattern of abusing alcohol''
that includes a June 2004 arrest for driving under the influence and a
January 2007 hospitalization ``with a blood alcohol level of .327,''
and that his ``history of abusing controlled substances and alcohol
shows that granting [his] application for a DEA registration would be
inconsistent with the public interest.'' Id. at 2.
By letter of October 6, 2008, counsel for Respondent requested a
hearing on the allegations, ALJ Ex. 2, and the matter was placed on the
docket of the Agency's Administrative Law Judges (ALJs). Following
prehearing procedures, an ALJ conducted a hearing on June 2-3, 2009, in
Chicago, Illinois. Both parties called witnesses to testify and
introduced documentary evidence. After the hearing, both parties filed
proposed findings of fact, conclusions of law, and argument.
On February 22, 2010, the ALJ issued her Opinion and Recommended
Ruling, Findings of Fact, Conclusions of Law and Decision (also ALJ or
Recommended Decision). Therein, the ALJ considered the evidence
pertinent to the five public interest factors and concluded that
granting Respondent's application ``would be inconsistent with the
public interest.'' ALJ at 43.
As to the first factor--the recommendation of the appropriate State
licensing board--the ALJ noted that Respondent's State licenses as a
physician and as a handler of controlled substances ``remain on
indefinite probation and are subject to the restrictions stated in the
May 22, 2007, consent order.'' ALJ at 35. Noting that Respondent is
``currently authorized to handle controlled substances in Illinois,''
the ALJ concluded that ``this factor weighs in favor of a finding that
Respondent's registration would not be inconsistent with the public
interest.'' Id. at 35-36. However, because ``state licensure is a
necessary but not sufficient condition for DEA registration,'' the ALJ
concluded that ``this factor is not dispositive.'' Id. at 36.
As to the second and fourth factors--Respondent's experience in
handling controlled substances and his compliance with applicable
Federal, State or local laws--the ALJ first noted that Respondent
testified ``in the instant proceeding that the explanation he offered
in the 1991 hearing'' about the Halcion and Percocet prescriptions
``was true.'' Id. The ALJ did not, however, find his ``explanation
credible.'' Id.
[[Page 20026]]
Next, the ALJ found that ``on numerous occasions between 2002 and
2004, Respondent issued prescriptions for alprazolam in other persons'
names, had the prescriptions filled, and kept the drugs for his own
use.'' Id. While the ALJ recognized that both Respondent and a
psychiatrist who was involved in his treatment maintained that his
``abuse of alprazolam was limited to the manner of acquiring it,'' she
nonetheless concluded that his ``fraudulent prescriptions for
alprazolam indicate his willingness to misuse a DEA registration.'' Id.
The ALJ thus found that Respondent's conduct in both 1989 and from
2002 to 2004 violated 21 U.S.C. 843(a)(3), which prohibits acquiring a
controlled substance by misrepresentation or fraud. Id. at 38. She also
found that the 2002 to 2004 alprazolam prescriptions violated 21 U.S.C.
829 and 21 CFR 1306.04, because Respondent was not ``acting in the
usual course of professional practice'' when he ``appropriated to his
own use the drugs he ostensibly prescribed to others.'' Id. Moreover,
the ALJ found that Respondent violated 21 U.S.C. 841(a)(1) in that
Respondent distributed controlled substances without a valid
prescription. Id. Finally, the ALJ concluded that ``[b]ecause
Respondent issued controlled substance `prescriptions' knowing that the
person other than the one named on the prescription was the intended
recipient of the controlled substances,'' he violated 21 CFR 1306.05,
which requires that a prescription ``bear the full name and address of
the patient.'' Id. The ALJ thus concluded that ``Respondent's handling
of controlled substances and lack of compliance with law and
regulations weigh[] in favor of a finding that his registration would
not be consistent with the public interest.'' Id. at 39.
As to the third factor--Respondent's conviction record for offenses
related to the distribution or dispensing of controlled substances--the
ALJ noted that in 1989, Respondent had been charged with two state law
counts of obtaining controlled substances by fraud but that ``no
conviction resulted from those proceedings.'' Id. The ALJ likewise
noted that Respondent had not been convicted of a controlled substance
offense based on his conduct during the 2002 to 2004 period. Id. The
ALJ thus concluded that ``this factor, although not dispositive, weighs
against a finding that Respondent's registration would be inconsistent
with the public interest.'' Id.
With respect to the fifth factor--other conduct which may threaten
the public health and safety--the ALJ reviewed Respondent's history of
arrests for various offenses, his history of alcohol abuse, as well as
the evidence pertaining to his recovery and acceptance of
responsibility. Id. at 39-41. The ALJ specifically found that
``Respondent's criminal history advises against granting him a
registration.'' Id. at 41. Based on his having misrepresented to a law
firm that he held an unrestricted medical license when he did not and
his testimony that he could not recall the circumstances surrounding
various arrests which appeared on his criminal record, the ALJ also
found that Respondent had ``willing[ly] misrepresent[ed] the truth,''
and that this ``extends beyond his handling of controlled substances.''
Id.
While the ALJ further noted that ``Respondent has demonstrated that
he is committed to his recovery from alcoholism [and] has taken steps
to ensure that he remains sober,'' she nonetheless found that ``his
past behavior poses serious questions as to whether he is capable of
handling controlled substances responsibly and is willing and able to
adhere to all applicable laws and regulations by which DEA registrants
must abide.'' Id. at 42. Also noting that Respondent ``has [not] fully
addressed other behavioral issues, nor does he seem fully to recognize
the extent of his misconduct in falsifying prescriptions,'' id. at 43,
the ALJ thus concluded that this factor supports ``a finding that
granting Respondent's application would not be consistent with the
public interest'' and recommended ``that his pending application for
registration be denied.'' Id.
Thereafter, Respondent filed Exceptions to the ALJ's Recommended
Decision. On March 23, 2010, the ALJ forwarded the record to me for
final agency action.
Having considered the record as a whole, I agree with the ALJ's
ultimate conclusion that granting Respondent's application ``would be
inconsistent with the public interest'' and her recommendation that his
application be denied.\1\ As the ultimate fact finder, 5 U.S.C. 557(b),
I make the following findings.
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\1\ For reasons explained throughout this decision, I reject the
various arguments raised by Respondent in his exceptions.
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Findings
Respondent is a physician licensed to practice medicine in Illinois
and Indiana. RX 1, at 5 & 7. Respondent, however, has been no stranger
to disciplinary proceedings brought by both this Agency and state
licensing authorities. This matter is the third time he has been the
subject of a DEA proceeding. See GX 3 (2007 Final Order denying
Application), GX 4 (1992 Final Order revoking registration). Moreover,
he has been subject to multiple proceedings brought by the Illinois
Department of Financial and Professional Regulation including a 1995
proceeding (which was based on the first DEA proceeding), GX 1, at 7; a
2005 proceeding in which the State imposed a suspension because his
``actions constitute[d] an immediate danger to the public,'' GX 10, at
1, a March 2007 suspension based on Respondent's having violated a
November 2006 consent order which had restored his medical license, GX
12, at 1-2, GX 13; and a December 2007 consent order which, while
restoring his Illinois Physician and Surgeon License and Controlled
Substance License, placed him on probation for a minimum of five
years.\2\ GX 1, at 9-10, 13.
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\2\ Based on the Illinois proceeding, Medical Licensing Board of
Indiana brought a proceeding against Respondent; the Indiana Board
placed Respondent's license on ``indefinite probation.'' RX 6, at 1
& 5.
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On February 24, 2005, Respondent submitted an untimely renewal
application, his previous registration having expired on December 31,
2004. GX 3, at 3. Thereafter, based on Respondent's loss of his state
authority and evidence that he had obtained controlled substances by
calling in fraudulent prescriptions, the Deputy Assistant Administrator
issued an Order to Show Cause to him which proposed the denial of any
pending applications. Id. at 2. Respondent did not timely request a
hearing. Id. at 2-3. While Respondent's application was treated as an
application for a new registration, I found the allegations proved and
issued a Final Order denying Respondent's application for a DEA
registration. Id. at 9. On January 21, 2008, Respondent submitted a new
application for registration; it is this application which is the
subject of this proceeding. GX 1.
The 1989 Incident
On January 4, 1989, Respondent was arrested at Huntington Drug
Depot, a pharmacy in Fort Lauderdale, Florida, after he presented two
forged prescriptions for controlled substances: one for 60 dosage units
of Percocet, a schedule II narcotic controlled substance which contains
oxycodone, the other for 30 dosage units of Halcion .25 mg.
(triazolam), a schedule IV controlled substance. GX 4, at 1. Both
prescriptions were written on pre-printed forms of an HMO named
[[Page 20027]]
``Health America''; the prescriptions were dated January 3, 1989,
listed the patient as ``Chris Pulin,'' and bore the DEA registration
number and purported signature of Evan K. Newman, M.D. Id.; see also GX
14, at 3-4. Respondent had previously worked at Health America but had
resigned his position in November 1988. Id. at 3.
Upon reviewing the prescriptions, a pharmacist became suspicious
because they were ``too legible,'' and having been written on the HMO's
forms, could have been filled for a fraction of the price at one of the
HMO's participating pharmacies. GX 14, at 4-5. His suspicions aroused,
the pharmacist called Dr. Newman, who told him that he did not have a
patient named ``Chris Pulin'' and that he did not recall issuing the
prescriptions. Id. at 5 n.6. The pharmacist then called the police;
upon their arrival, both the owner of the store and his son, who was
working as a pharmacy clerk, identified Respondent as the person who
had presented the prescriptions and Respondent was arrested. Id. at 4-
5. Moreover, a subsequent ``search of Broward County and Fort
Lauderdale records failed to disclose any record regarding a Chris
Pulin.'' Id. at 9.
Respondent was then taken to the police station and interviewed. GX
4, at 1. There, he refused to give his name or date of birth, stated
that the incident could jeopardize his life and career, and insisted
that someone else had presented the prescriptions and that the police
had arrested the wrong person.\3\ Id. Respondent had no response when
the officer told him that both pharmacists had identified him as the
individual who had presented the prescriptions.\4\ GX 15, at 20.
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\3\ At the time of his arrest, Respondent was wearing sunglasses
and a hat which was ``pulled down over his head.'' GX 14, at 4. When
the police attempted to interview him at the station, Respondent
refused to take off his sunglasses claiming he had glaucoma; he also
initially refused to take off his hat claiming he was bald. Id. at
6. However, when Respondent eventually took off his hat for a brief
moment, he was not bald. Id.
\4\ Respondent was charged with attempting to obtain a
controlled substance by fraud in violation of state statute, but the
charges were dismissed because ``the information was filed
incorrectly as to the charge.'' GX 14, at 6-7.
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At his hearing, Respondent testified that he had received a phone
call from a Ms. Schwartz, whom he did not know, and that she had asked
him if he could help out an elderly friend of hers who had sustained a
fall and lacked health insurance. GX 4, at 2; GX 15, at 100, 148.
Respondent claimed that he told Ms. Schwartz to take her friend to
Health America, where he could be examined. GX 4, at 2; GX 15, at 101.
According to Respondent, several days later, Ms. Schwartz called
again stating that her friend had received a couple of prescriptions
and asked Respondent if he could ``have them filled at a reduced
price.'' GX 15, at 102. In his testimony, Respondent claimed that later
that day, an envelope was slipped under his door which contained a note
with Chris Pulin's name and address and the two prescriptions. Id. at
103-04. In his testimony, Respondent maintained that he went to the
pharmacy intending to have the prescriptions filled and handed the
piece of paper and the prescriptions to the pharmacist who was working
as the clerk. Id. at 108. Respondent testified that he did not
intentionally or knowingly take the two prescriptions for Halcion and
Percocet to the pharmacy knowing that they were forged. Id. at 113. In
the instant matter, he also testified that he had never taken Halcion,
Percocet, or generic oxycodone. Tr. 18.
In her 1991 Recommended Ruling, the ALJ found that Respondent was
``a less than candid witness'' and was not ``generally credible.'' GX
14, at 12. She further explained that ``Respondent's explanation of his
conduct is most charitably described as inherently implausible,'' as a
physician agreeing ``to obtain a highly abused medication such as
Percocet for a total stranger is * * * totally at odds with any
rational notion of professional responsibility.'' Id.
On January 2, 1992, the Honorable Robert C. Bonner, DEA
Administrator, himself no stranger to tall tales having previously
served as a United States District Judge, adopted the ALJ's findings of
fact and legal conclusions in their entirety and revoked Respondent's
registration. GX 4, at 3 (57 FR 928 (1992)). The Administrator
expressly found ``that Respondent refuses to accept responsibility for
his actions and does not even acknowledge the criminality of his
behavior.'' Id. at 2. The Administrator further found that
``Respondent's version of the incident is simply unworthy of belief.''
Id. He then noted that, although the state charges against Respondent
had been dismissed, ``Respondent's conduct demonstrates an absolute
disregard for Federal and state law and nothing presented during
Respondent's case persuades the Administrator that the Respondent is
now willing to carefully abide by the laws and regulations relating to
controlled substances.'' \5\ Id. at 3.
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\5\ DEA granted Respondent a new registration in July 1993.
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On both his recent application for a new DEA registration and in
his testimony in the instant proceeding, Respondent maintained that his
1991 story was true. For example, on his application, Respondent wrote:
``From February 10, 1992 until February 10, 1993, my DEA registration
was revoked based on allegations that in 1989, in Florida, I attempted
to fill two prescriptions, which were allegedly forged to try to help a
person who did not have insurance.'' GX 1, at 7 (emphasis added).
Moreover, in his testimony in the instant proceeding, Respondent
told the exact same story of having been called ``out of the blue'' by
Ms. Schwartz, whom he did not know and had never spoken to before, and
was asked by her to help her elderly friend who had fallen down some
stairs; how several days later, Ms. Schwartz had called him back and
stated that her friend had obtained two prescriptions and asked if he
would get them filled for her friend; how the prescriptions were
slipped under his door; and how he had not forged the prescriptions and
that the only thing he had done wrong was to ``not look[] more into the
authenticity of the prescriptions and doing what I did.'' Tr. 25-32.
While the Administrator's (and ALJ's) findings that Respondent's story
was not credible are res judicata, the ALJ explained that she did not
find his story any more credible now than she had in 1991. ALJ at 36.
The 2002--2004 Incidents
In October 2004, an Investigator with the Illinois Department of
Financial and Professional Regulation (IDFPR), Division of Professional
Regulation (DPR), received an anonymous complaint, which alleged that
Respondent was calling in to pharmacies false prescriptions for Xanax
(alprazolam), Dilaudid (hydromorphone) and Viagra (a non-controlled
prescription drug), under the names of M.G., V.G., and T.C., and that
Respondent was going to the pharmacies and picking up the prescriptions
for his personal use. GX 5, at 1. The informant further stated that
Respondent paid cash for the drugs to avoid them being traced to him
and identified three Chicago pharmacies where the prescriptions were
being filled.\6\ Id. The informant also reported
[[Page 20028]]
that Respondent had been arrested for DUI on June 22, 2004 and was
driving ``on a suspended license while under the influence of
alcohol.'' Id. at 6.
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\6\ The informant also reported that Respondent had been
arrested for DUI on June 22, 2004 and was driving ``on a suspended
license while under the influence of alcohol.'' GX 5, at 6. At the
hearing, Respondent admitted that he had been convicted of the DUI
charge. Tr. 95. According to the report of a psychiatrist who
evaluated him for the IDPFR, Respondent told her that the police
officer thought he was drunk because he had difficulty walking due
to a sprained ankle. Tr. 116-17. At the hearing, however, Respondent
acknowledged that he had failed a breathalyzer test. Id. at 117.
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Upon receipt of this information, the DPR Investigator and a DEA
Diversion Investigator (DI) went to the pharmacies and obtained at each
of them, a profile which listed the prescriptions Respondent had
written in the names of M.G., V.G. and T.C. GX 7. Subsequently, the DPR
Investigator prepared a spreadsheet of the prescriptions. Id. The
Investigators confirmed the informant's report that Respondent had
issued prescriptions for alprazolam .5 mg. in the names of T.C., M.G.,
and V.G.
More specifically, Respondent issued alprazolam prescriptions in
V.G.'s name for 60 tablets on April 4, May 17, and June 8, 2004. Id. 4.
He issued prescriptions in T.C.'s name for 30 tablets on April 21 and
May 7, 2004, as well as 60 tablets on September 8 and October 7, 2004.
Id. at 3. Finally, he issued prescriptions in M.G.'s name for 60
tablets on July 8 and July 28, 2004. Id. at 4. Thus, between April 4
and October 7, 2004, Respondent called in prescriptions for a total of
480 tablets of alprazolam.
Moreover, in the order Respondent entered into with the Medical
Licensing Board of Indiana, Respondent admitted that ``from December
2002 to October 2004, [he] prescribed Xanax, Dilaudid, and Viagra using
other individuals' names'' and he ``subsequently admitted that he
consumed these drugs himself.'' RX 6, at 2.
Thereafter, the Chief of Medical Prosecutions for the IDFPR filed a
complaint and a petition for temporary suspension of his medical
license on the ground that Respondent's continued practice of medicine
was ``a danger to the public interest, safety and welfare.'' GX 9, at
1. The petition was supported by the affidavit of Larry G. McLain,
M.D., Chief Medical Coordinator of the IDFPR, which stated that
Respondent had ``repeatedly issued false prescriptions for Xanax,
Dilaudid and Viagra,'' that Respondent ``call[ed] in these
prescriptions in the names of [M.G., V.G., and T.C.],'' and that he
paid cash for the drugs which he was obtaining for ``personal use.'' GX
9, at 5. Dr. McClain further noted Respondent's June 2004 DUI arrest
and that he had an extensive criminal history.
On February 18, 2005, the DPR's Acting Director ordered that
Respondent's medical license be suspended pending a hearing. GX 10.
Thereafter, on May 25, 2005, the Deputy Assistant Administrator of the
DEA Office of Diversion Control issued an Order to Show Cause to
Respondent which proposed the revocation of his registration (and the
denial of any renewal application) based on his having issued false
controlled-substance prescriptions and his lack of authority under
State law to dispense controlled substances, the latter being a
requirement for holding a registration under Federal law. GX 3, at 2.
Regarding the events of this time period, Respondent testified that
his drinking first became problematic around 2003 to 2004, when he
switched from primarily drinking beer to drinking more wine and vodka.
Tr. 10. Respondent stated that his drinking increased at this stage in
conjunction with marital troubles, id. at 13, and that at the height of
his abuse of alcohol, he consumed ``[m]aybe a 750 ml bottle [of vodka]
a [sic] week, maybe three-quarters of that.'' Id. at 12.
In the spring of 2006, Respondent underwent treatment at Lutheran
General Hospital. Tr. 86. In June, Respondent completed inpatient
treatment and signed an Aftercare Agreement with Illinois Professionals
Health Program (IPHP).\7\ Id. at 124, 137.
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\7\ The IPHP is ``a statewide program sponsored by Advocate
Medical Group, the Illinois State Medical Inter-Insurance Exchange,
and other health professional organizations.'' RX 1, part 3. It
``provides support and advocacy for health care professionals who
have difficulties with stress management, substance abuse, medical
or psychiatric illness or other issues that may impact the
professional's health, wellbeing, or ability to practice his or her
profession.'' Id.
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In September 2006, Respondent entered into a consent order with the
IDFPR. The order, which became effective on November 21, 2006, restored
Respondent's medical license and placed him on ``Indefinite
Probation.'' Alan H. Olefsky, M.D., 72 FR 42127 (2007) (GX 3B, at 1).
Among the conditions imposed by the order were that Respondent comply
with the terms of an Aftercare Agreement and that he abstain from the
use of alcohol and ``mood altering and/or psychoactive drugs,'' except
as prescribed by another physician. Id. at 42128. In the meantime,
Respondent had been ``discharged from Caduceus on [October 5, 2006] due
to missing five consecutive group sessions,'' had ``discontinued
individual therapy with'' a psychologist, and had missed five urine
drug screens between September 20 and December 13, 2006. RX Group 11,
at 1.
Within one month of the State's restoration of his license,
Respondent resumed his drinking.\8\ Tr. 14. In January 2007, Respondent
was hospitalized with a blood alcohol content of .327. GX 12, at 2. On
or about March 30, 2007, the IDFPR again petitioned for and obtained a
temporary suspension of Respondent's medical license.\9\ GXs 3A, at 3;
12 & 13.
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\8\ Respondent testified that he relapsed because he didn't
``have the sponsor set up'' and did not attend Alcoholics Anonymous
(AA) meetings regularly; the relapse occurred while he was nursing
his terminally ill mother and experiencing ``licensing issues'' and
``a sense of isolation living in Des Plaines.'' Tr. 86-87.
\9\ Following the DPR's March 30, 2007 order which imposed a
second suspension of Respondent's medical license, the second DEA
proceeding, which had been held in abeyance (after the DPR's
November 2006 order restoring Respondent's medical license) was
forwarded to me for final agency action. GX 3A, at 3. While I found
that Respondent did not have a current registration, I found that he
had an application pending before the Agency. Id. I denied the
application for two independent reasons: (1) That Respondent lacked
authority under Illinois law to dispense controlled substances,
which is an essential prerequisite for obtaining a DEA registration,
and (2) that Respondent had violated Federal law by ``repeatedly
issu[ing] false prescriptions'' for alprazolam and Dilaudid, which
he then filled and ``personally abused.'' See 72 FR at 42128 (citing
21 U.S.C. 802(21), 823(f), and 843(a)(3)).
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Following his relapse, Respondent entered a treatment program for
impaired professionals run by Resurrection Behavioral Health. GX 1, at
18. On April 10, 2007, Respondent ``successfully completed treatment,''
id., and the following day, Respondent entered into a second Aftercare
Agreement. Id. at 25, 27. The Aftercare Agreement, which was in effect
for a period of twenty-four months, required him to enroll in his
``state Professional's Assistance Program,'' undergo random toxicology
screens, attend Caduceus Aftercare meetings following completion of his
long-term treatment program, attend AA meetings, and abstain from the
``use of all mood-altering chemicals, except as prescribed by [his]
primary or treating physicians.'' Id. at 25-26.
On April 10, 2007, Respondent also entered into a consent order
with the IDFPR, which the latter approved on May 22, 2007. GX 1, at 16.
The Consent Order ``indefinitely suspended'' Respondent's medical
license ``for a minimum of 6 months'' from the March 30, 2007
suspension order but allowed him to regain his license by providing
proof to an informal conference of the Medical Disciplinary Board that
he had ``successfully participated in a substance abuse treatment
program for a minimum of 6 months.'' Id. at 13.
The Consent Order also provided that upon the restoration of his
medical license, Respondent would be placed on probation for a minimum
of five years subject to various conditions. Id. at 13-14. These
conditions include that he
[[Page 20029]]
comply with his Aftercare Agreement; that he abstain from use of
alcohol and mind altering/psychoactive drugs unless prescribed to him
by another physician; that he submit to random urine screens; that he
not prescribe any controlled substances to himself, his family or
friends; that his primary care physician file quarterly reports with
the IDFPR regarding his ``condition, prognosis, and any medication
prescribed''; that he be ``prohibited from ordering or maintain
inventories of any controlled substance''; that he ``be prohibited from
administering or writing prescriptions for controlled substances
outside of his worksite''; and that, if practicing as a physician, he
do so where he was not ``the only physician actively involved in the
practice of medicine.'' Id. On December 5, 2007, the IDFPR restored
Respondent's license to active status and placed it on probation
subject to the conditions set forth in the May 2007 Consent Order.\10\
GX 1, at 9-10.
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\10\ In addition to the 1989 Florida and 2004 DUI arrests, the
Government also introduced records showing he had been arrested in
May 1993 in Chicago for criminal damage to property; in March 1994
in Galena, Illinois for aggravated battery and criminal damage to
property; in December 1995 for aggravated assault with a firearm;
and in both December 1995 and November 2001 in Chicago for violation
of a protective order. GX 6, at 1-2, 8-9; Tr. 45-46.
With the exception of the 1989 incident, the 2004 arrest for
DUI, and one of the charges of having violated a protective order
(which Respondent admitted having been convicted of, but then
proceeded to minimize his culpability for, by claiming he had never
been served with the protective order), the Government did not
produce evidence apart from the arrest records and testimony based
on the arrest records establishing that Respondent had committed any
of these other offenses. As the Supreme Court has long noted,
``[t]he mere fact that a man has been arrested has very little, if
any, probative value in showing that he has engaged in any
misconduct. An arrest shows nothing more than that someone probably
suspected the person apprehended of an offense.'' Schware v. Board
of Bar Exam'rs, 353 U.S. 232, 241 (1957). Accordingly, I do not
consider any of the arrests, by themselves, to establish that
Respondent committed the underlying conduct.
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Respondent's Evidence Regarding the Post-2002 Incidents
At the hearing, Respondent testified that while he was an alcoholic
he had never been addicted to controlled substances and denied that he
had ever taken a controlled substance for other than a legitimate
medical purpose. Tr. 16. While Respondent acknowledged that he had
written between 20 and 50 prescriptions in other persons' names in
order to obtain alprazolam, id. at 18 & 21, and that he had not
obtained the drug ``correctly,'' id. at 36, he maintained that he was
not abusing the drug but ``was using it to sleep'' as he ``was not
taking it in the amount over the recommended dose to use it for sleep
purposes.'' Id. Respondent also claimed that he had never had a problem
with the abuse of controlled substances. Id.
Subsequently, Respondent testified that he took the alprazolam only
when he had ``trouble sleeping'' after having worked the night shift in
the emergency room. Id. at 100. Respondent further explained that there
``were just four or five shifts in the emergency room for a month. And
it wasn't all the time, it was occasionally.'' Id. When further
questioned as to how many tablets he took a day, Respondent testified
that ``I would take a half of one in the morning when I needed to fall
asleep.'' Id. at 101.
Continuing, Respondent contended that ``the amounts were common. A
lot of the people * * * the person who evaluated me in terms of this
case * * * found that the amount over the period of time was not a
matter of abuse, in terms of the number of * * * Xanax.'' Id.
Respondent then noted that a psychiatrist who had evaluated him for the
IDFPR had ``made a comment * * * that considering the amount of
medications in my evaluation I did not suffer from any substance abuse
problem. I'm just reflecting off of that report. They substantiated
that, this psychiatrist in that department.'' Id. at 102. See also id.
at 105 (``Her conclusion * * * was that I did not suffer from a drug
problem, an addiction to drugs based on her interviewing me and the
Xanax that was prescribed.'').
As part of his case, Respondent submitted a copy of the psychiatric
evaluation done on him for the IDPFR. RX 12. With respect to his use of
substances, the report noted that Respondent ``stated that over the
last one and one half years, his consumption [of alcohol] increased to
one or two ounces every few days. He reported occasional use of
alprazolam 0.25 mg for sleep for the past two to three years. He denied
use of any other medications or illicit substances.'' Id. at 3. While
the psychiatrist also noted that she had reviewed pharmacy records
(which showed that between April 4 and October 7, 2004, Respondent had
issued alprazolam prescriptions totaling 180 tablets to T.C., 120
tablets to M.G., and 180 tablets to V.G.), she noted that the
prescriptions ``would have provided approximately 1 mg. daily of the
substances during the time it was prescribed. Use of several milligrams
at one time, especially if used with alcohol, could be dangerous and
constitute abusive use. However, this examiner does not know who used
the substance or how it was used.'' Id. at 6. Noting that no records
had been submitted to her substantiating the claim that Respondent had
also prescribed and used Dilaudid, the psychiatrist concluded that
``[a]side from the allegations of [his] ex-wife, there is no clear
evidence that [Respondent] demonstrated abuse of or dependence upon
alcohol, prescription medications, or illicit substances.'' Id.
Respondent did not call the psychiatrist to testify and I decline
to give weight to her report (which apparently was based largely on her
interview of him) for several reasons. First, she concluded that
Respondent was not even abusing alcohol, yet even Respondent
acknowledges that he is an alcoholic and was so at the time in
question. Tr. 111-16; RX Group 11, at 1.
Second, with respect to whether he was abusing alprazolam, while it
is true that the total amount of alprazolam prescriptions noted above
(480 tablets obtained between April 4 and October 7, 2004) would
provide slightly more than 1 milligram per day, Respondent, during both
his evaluation by the psychiatrist and in his testimony, claimed that
he took only .25 mg. of alprazolam and that he did so only
occasionally. RX 12, at 3; Tr. 100-01. Were Respondent's story true
that he took half of a tablet five times a month to sleep following the
night shift, over the approximately six to seven-month period in which
he wrote the prescriptions,\11\ he would have required no more than
eighteen tablets in total, an amount 1/26th of the quantity he
obtained. Notably, in her report, the psychiatrist did not even
acknowledge the glaring inconsistency between the amount of alprazolam
Respondent had obtained and his claimed rate of usage.\12\
---------------------------------------------------------------------------
\11\ While Respondent actually wrote the prescriptions during
slightly more than a six month period, I assume that the October 7,
2004 prescription would have lasted for several weeks.
\12\ As noted above, the psychiatrist's report noted that
Respondent ``denied use of any other medications.'' RX 12, at 3. Yet
in the Indiana Consent Order, he stipulated that he had also
obtained Dilaudid and that he had ``consumed these drugs himself.''
RX 6, at 2.
The psychiatrist did, however, diagnose Respondent as having
adult antisocial behavior. Id. at 6. While she concluded that
Respondent's ``behavior may be deemed inappropriate, illegal, or
dangerous by the IDFPR,'' and that the IDFPR could ``revoke his
medical license or place restrictions upon it,'' she concluded that
his behavior was not ``due to a mental disorder.'' Id. Dr. Angres, a
psychiatrist and addiction specialist who was involved in treating
Respondent, explained that while he engaged in antisocial behavior,
this happened ``historically when [he was] under the influence'' and
that such behavior ``often occur[s] with alcoholism.'' Tr. 202.
---------------------------------------------------------------------------
As for his evidence of rehabilitation, Respondent introduced into
evidence various letters written by Dr. Daniel H. Angres, Director,
Resurrection Behavioral Health Addiction Services Division, Rush
University Medical
[[Page 20030]]
Center, and Russell Romano, Jr., Respondent's case manager at IPHP.\13\
Respondent also called both Dr. Angres and Mr. Romano to testify.
---------------------------------------------------------------------------
\13\ Respondent submitted three letters written by Dr. Angres,
all of which indicated that he had been in compliance with his after
care program. RXs 1, part 6; 3 and 4. Respondent also submitted two
letters from Mr. Romano, both of which stated that his ``substance
use disorder is in sustained, full remission which indicates to us
that his petition to restore his DEA license is appropriate at this
time.'' RX 2 (letter of April 8, 2008), RX 11, at 2 (letter of April
10, 2009).
Respondent also submitted letters supporting his application
from an individual attesting to his work for Mobile Doctors, see RX
5, as well as from the social services directors at two nursing/
rehabilitation centers. RXs 9 and 10.
---------------------------------------------------------------------------
At the time of the hearing, Dr. Angres, who is board-certified in
Psychiatry Neurology and Addiction Medicine, served as Medical
Director, Resurrection Behavioral Health, Addiction Services Division.
Tr. 179, 181, 187. Respondent was Dr. Angres' patient in the ``partial
step-down outpatient program,''\14\ and during this portion of
Respondent's treatment would see him ``several times a week'' both in a
group setting and individually.\15\ Id. at 200.
---------------------------------------------------------------------------
\14\ Dr. Angres testified that Resurrection Addiction Services
Behavioral Health runs a day hospital program and that most patients
live in an ``independent living setting that [it] supervise[s].''
Id. at 189. The day hospital program is a ``form of intensive
outpatient treatment'' and is followed by an ``intensive outpatient
step-down program,'' which averages seven weeks in length and is
then followed by a 20-month to 2-year period of ``weekly aftercare
monitoring.'' Id. The Caduceus Aftercare Program in which Respondent
was participating typically lasts for two years, with facilitated
weekly monitoring groups and random urine sampling by IPHP. Id. at
191. Aftercare in general usually lasts five years, during which
time there is an expectation of continued 12-step/AA recovery and
``appropriate sponsorship.'' Id. at 192.
\15\ While Dr. Angres testified that he attended some of the
Caduceus aftercare groups and would have patients come in at
different intervals, he did not specify the frequency with which he
was seeing Respondent. Tr. 200-01.
---------------------------------------------------------------------------
Dr. Angres testified that while Respondent ``would act in ways
[that] might be described as an anti-social type of way * * * he
doesn't present with any severe personality disorder.'' Id. at 202. Dr.
Angres further testified that Respondent was in compliance with his
Aftercare Agreement, that his urine screens were negative, and that his
recovery was ``[v]ery solid, it's very solid.'' Id. at 207-08.
According to Dr. Angres, Respondent's primary problem is alcohol
dependence and that while Respondent was also diagnosed as having
abused benzodiazepines (the class of drugs which includes alprazolam),
the latter was based on the manner in which Respondent had obtained the
drugs and not on the amount he was using. Id. at 199-200. Dr. Angres
asserted that Respondent was using alprazolam ``as [a] prescribed
quantity for sleep,'' and benzodiazepine dependence was ruled out as a
diagnosis because his ``use was of the level of what's often
prescribed.'' Id. In Dr. Angres' view, Respondent's issuance of
fraudulent prescriptions ``sounded like [it] was more a matter of
convenience.'' Id. at 200. However, on cross-examination, Dr. Angres'
admitted that his knowledge as to how much alprazolam Respondent was
using was based on what the latter had told him. Id. at 220.
Mr. Romano testified that he has known Respondent since the spring
of 2006, when after the latter's admission to Lutheran General
Hospital, the Hospital contacted Dr. Doot, the IPHP's medical director,
to do a substance abuse consultation. Id. at 137. Dr. Doot recommended
that Respondent undergo some ``treatment for alcohol and chemical
dependency'' at the Advocate Addiction Treatment Program''; Respondent
completed treatment and signed an Aftercare Agreement with IPHP. Id.;
RX Group 11, at 1.
Mr. Romano testified that he had known Respondent throughout the
period which included his relapse and admission to the Resurrection
Behavioral Health treatment program. Id. at 141. Mr. Romano testified
that since April 2007, when Respondent signed his second Aftercare
Agreement, he had seen Respondent on a monthly basis. Id. at 140; RX 1,
parts 4 and 5. Mr. Romano testified that ``since that January 2007
treatment * * * [t]here's been a remarkable turnaround as far as
[Respondent's] acceptance and understanding of his addiction'' and that
Respondent has shown ``commitment'' to his recovery. Id. at 142-43. Mr.
Romano reported that Respondent's urine tests had been reported as
negative. Id. at 144.
Respondent also testified concerning his rehabilitation efforts. At
the time of hearing, Respondent had been in his current job for a year
and a half which involves ``doing group therapy and group treatment
with nursing home patients that have mental illness, and actually also
substance abuse problems.'' Tr. 79-80. In addition, he was working as a
``general physician'' in a clinic with other physicians. Id. at 81.
Respondent was also attending Alcoholics Anonymous (AA) meetings three
to four times per week, id. at 81-82, talked with his AA sponsor
between two and four times a week, id. at 83, and on Saturdays,
attended his Caduceus group. Id. at 84.
Respondent testified that a DEA registration ``[i]s a privilege''
and that he had ``done a lot of wrong things.'' Tr. 94. According to
Respondent, he was ``totally sorry for the things [he had] done.'' Id.
Respondent stated that he ``know[s]'' ``what [he has] done'' so that
he's ``not sure on terms of what level * * * of * * * horrific
punishment [he] need[s] to go through anymore.'' Id.
Discussion
Section 303(f) of the Controlled Substances Act (CSA) provides that
the Attorney General ``may deny an application for such registration if
he determines that the issuance of such a registration is inconsistent
with the public interest.'' 21 U.S.C. 823(f). In making the public
interest determination, the CSA directs that the following factors be
considered:
(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, 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 to revoke an existing registration
or to deny an application for a registration. 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).
Where the Government has met its prima facie burden of showing that
issuing a new registration to the applicant would be inconsistent with
the public interest, the burden then shifts to the applicant to
``present sufficient mitigating evidence'' to show why he can be
entrusted with a new registration. Medicine Shoppe-Jonesborough, 73 FR
364, 387 (2008) (quoting Samuel S. Jackson, 72 FR 23848, 23853 (2007)
(quoting Leo R. Miller, 53 FR 21931, 21932 (1988))). ``Moreover,
because `past performance is the best predictor of future performance,'
ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th Cir.1995), [DEA] has
repeatedly held that where a registrant has committed acts inconsistent
with the public interest, the registrant must accept responsibility for
[his] actions and demonstrate that [he]
[[Page 20031]]
will not engage in future misconduct.'' Medicine Shoppe, 73 FR at 387;
see also Jackson, 72 FR at 23853; John H. Kennedy, 71 FR 35705, 35709
(2006); Cuong Tron Tran, 63 FR 64280, 64283 (1998); Prince George
Daniels, 60 FR 62884, 62887 (1995). Because of the authority conveyed
by a registration and the extraordinary potential for harm caused by
those who misuse their registrations, DEA places significant weight on
an applicant/registrant's candor in the proceeding. See also Hoxie v.
DEA, 419 F.3d at 483 (``admitting fault'' is ``properly consider[ed]''
by DEA to be an ``important factor[]'' in the public interest
determination).
Having considered all of the factors, I hold that the Government
has met its prima facie burden of showing that Respondent has committed
acts which render his registration inconsistent with the public
interest. Indeed, the Government satisfied its prima facie burden
simply by introducing the 1992 and 2007 Agency Orders. While I have
carefully considered Respondent's evidence as to his rehabilitation, as
explained below, I hold that Respondent has not rebutted the
Government's prima facie case because he has failed to accept
responsibility for his misconduct and gave false testimony in this
proceeding.
Factor One--The Recommendation of the State Licensing Board
As an initial matter, while the IDFPR has restored Respondent's
medical and controlled substances licenses and placed them on active
but indefinite probation, it has made no recommendation as to whether
Respondent's application should be granted. While under 21 U.S.C.
823(f), the possession of authority under state law to dispense
controlled substances is an essential requirement for obtaining a
registration, as the ALJ recognized, DEA has long held that a
practitioner's possession of state authority is not dispositive under
the public interest standard. ALJ at 36.
In his Exceptions, Respondent argues that the ALJ ``failed to give
proper consideration and weight to the circumstances'' which led the
IDFPR to restore his licenses as well as ``the level of oversight and
control'' it has placed on his license. Resp. Exceptions at 3-4. DEA
has long held, however, that it has `` `a separate oversight
responsibility with respect to the handling of controlled substances
and has a statutory obligation to make its independent determination as
to whether the granting of [a registration] would be in the public
interest.' '' Jeri Hassman, M.D., 75 FR 8194, 8227 (2010) (quoting
Mortimer B. Levin, 55 FR 8209, 8210 (1990)). See also Alvin Darby, 75
FR 26993, 27000 n.32 (2010); Edmund Chein, 72 FR 6589, 6590 (2007),
aff'd Chein v. DEA, 533 F.3d 828 (DC Cir. 2008) (The authority to
determine whether the issuance of a registration is consistent with the
public interest has been granted to the Attorney General and
``delegated solely to the officials of this Agency.'').
Contrary to Respondent's contention, this case is best decided
based on the record compiled in this proceeding and not in the IDPFR
matter. The record in this matter shows that Respondent has violated
Federal criminal laws related to the dispensing of controlled
substances (in multiple instances no less) and has now lied about it in
two separate agency proceedings. ALJ at 36. Moreover, the record
establishes a glaring inconsistency between Respondent's testimony as
to his purported rate of alprazolam usage and the quantities of drugs
he was obtaining. Whatever the IDPFR's reasons were for ignoring this,
I decline to do so. I thus conclude that while the IDPFR's restoration
of his state medical and controlled substances licenses renders him
eligible to hold a DEA registration, it is not dispositive of whether
his registration would be consistent with the public interest.\16\
---------------------------------------------------------------------------
\16\ I concur with the ALJ's finding that there is no evidence
that Respondent has been convicted of crimes related to the
manufacture, distribution or dispensing of controlled substances.
However, DEA has held that a finding that an applicant has not been
convicted of such an offense is not dispositive. See, e.g., Edmund
Chein, 72 FR 6580, 6593 n.22 (2007).
---------------------------------------------------------------------------
Factors Two, Four, and Five--Respondent's Experience in Dispensing
Controlled Substances, Compliance With Laws Related to Controlled
Substances, and Such Other Conduct Which May Threaten Public Health and
Safety
As found in two previous Agency Orders, Respondent has on multiple
occasions either attempted to obtain, or successfully obtained,
controlled substances ``by misrepresentation, fraud, forgery,
deception, or subterfuge,'' in violation of 21 U.S.C. 843(a)(3). See
also 21 U.S.C. 846 (CSA's attempt provision). More specifically, on
January 4, 1989, Respondent attempted to fill forged prescriptions for
60 tablets of Percocet, a schedule II narcotic, and 30 tablets of
Halcion, a schedule IV benzodiazepine, at a Fort Lauderdale pharmacy
but was arrested. See GX 4.
When questioned by the police, Respondent lied claiming that
someone else had presented the prescriptions and that they had arrested
the wrong person. At the 1991 hearing, however, Respondent changed his
story claiming that he had been called out of the blue by a person he
did not know who had asked him to fill the prescriptions for a friend
and that several days later, the prescriptions were slid under his
door. Then, as now, the ALJ found the story to be ``inherently
implausible'' and the then-Administrator found that it was ``simply
unworthy of belief.'' Notwithstanding that in this proceeding,
Respondent had a fresh opportunity to acknowledge his criminal behavior
and accept responsibility for his misconduct, he repeated his lies.
Moreover, as I found in my 2007 Decision and Order, which denied
his previous application, on multiple occasions during 2002 through
2004, Respondent called in fraudulent prescriptions in the names of
three persons for alprazolam and Dilaudid (hydromorphone, a schedule II
controlled substance) to obtain drugs for his personal abuse. While in
this proceeding the Government primarily focused on Respondent's
prescribing and use of alprazolam, my finding that Respondent issued
fraudulent prescriptions for both alprazolam and Dilaudid is res
judicata. See University of Tennessee v. Elliot, 478 U.S. 788, 797-98
(1986) (``When an administrative agency is acting in a judicial
capacity and resolves disputed issues of fact properly before it which
the parties have had an adequate opportunity to litigate, the courts
have not hesitated to apply res judicata[.]''). While Respondent waived
his right to contest the allegations, see 72 FR 42127, he nonetheless
had a full and fair opportunity to litigate these issues in that
proceeding.\17\
---------------------------------------------------------------------------
\17\ In addition, in a proceeding brought by the Medical
Licensing Board of Indiana, Respondent admitted that he had consumed
Dilaudid (in addition to the Xanax). RX 6, at 2. In the instant
matter, Respondent offered no explanation as to his use of Dilaudid.
---------------------------------------------------------------------------
While at the hearing Respondent acknowledged that he had issued at
least twenty fraudulent prescriptions for alprazolam during the 2002
through 2004 period, his testimony regarding his rate of usage of the
drug is glaringly inconsistent with the amount of the drug he obtained.
As found above, between April 4 and October 7, 2004, Respondent
obtained a total of 480 tablets of this drug. Yet in his testimony he
maintained that he used the drug only four to five times a month (to
help him sleep) and that he cut the tablets in half. Were this true, he
would have used at most only eighteen tablets. Respondent offered no
explanation to
[[Page 20032]]
account for the other 460 tablets he obtained during this period. The
inconsistency between the amounts he obtained and his testimony
supports the conclusion that Respondent lied about his rate of usage
and likely did so to portray himself as being only an alcoholic and not
a drug abuser.\18\
---------------------------------------------------------------------------
\18\ To make clear, in light of the inconsistency between the
amount of alprazolam Respondent obtained and his claimed rate of
usage, I reject the ALJ's conclusion ``that Respondent's abuse of
alprazolam was limited to his manner of acquiring it.'' ALJ at 36.
---------------------------------------------------------------------------
Thus, while Respondent produced extensive evidence of his
rehabilitation from alcohol abuse, there is ample reason to be
skeptical of his claim that he is not a drug abuser and that he has
learned from his mistakes. Moreover, even assuming the good faith of
those who have treated (and/or evaluated) him, and that the treatment
he received for his alcoholism would be efficacious in treating
prescription drug abuse notwithstanding his apparent unwillingness to
acknowledge the extent of his alprazolam misuse, it is nonetheless
clear that Respondent has a serious aversion to telling the truth. I
therefore hold that Respondent has failed to accept responsibility for
his misconduct and has failed to rebut the Government's prima facie
case.
In his Exceptions, Respondent contends that he ``cannot eradicate
his past criminal history'' and that the ALJ's recommendation that his
application be denied ``is tantamount to a permanent revocation * * *
especially since the DEA considered most of the same information'' in
my 2007 order which denied his previous application. Exceptions, at 14.
Respondent also contends that because the issues litigated in ``the
1992 hearing before DEA are res judicata [they] should not be
considered in any determination in this matter.'' Id. at 6. Finally, he
contends that he has been adequately punished for his past misconduct
and that the proper focus should have been ``whether the circumstances
in existence at the time of the prior denial in July 20, 2007 have
sufficiently changed to warrant the issuance of Respondent's DEA
registration.'' Exceptions, at 6-12.
Contrary to Respondent's view, Congress expressly directed the
Agency to consider an ``applicant's experience in dispensing * * *
controlled substances.'' 21 U.S.C. 823(f). Respondent's previous
incidents of presenting fraudulent prescriptions are thus properly
considered in this proceeding. Moreover, while it is true that
Respondent ``cannot eradicate his past criminal history,'' he could
have testified truthfully in this proceeding and accepted
responsibility for his misconduct.\19\ See Robert Leslie, 68 FR 15227
(2003) (denying application based on physician's continued
unwillingness to accept responsibility for criminal conduct he engaged
in seventeen years earlier). I am therefore wholly unpersuaded by
Respondent's contention that the circumstances have sufficiently
changed to warrant granting his application.
---------------------------------------------------------------------------
\19\ In arguing that he has been adequately punished for his
past misconduct, Respondent misapprehends the nature of this
proceeding. This is a remedial proceeding aimed at protecting the
public interest. See, e.g., Samuel S. Jackson, 72 FR at 23853
(citing Leo R. Miller, 53 FR 21931, 21932 (1988)). My decision to
deny Respondent's application is not based on a determination that
he needs to be punished but on the fact that his unwillingness to
accept responsibility and testify truthfully establishes that he
cannot be entrusted with a registration notwithstanding his efforts
at rehabilitation.
Respondent also argues that ``it has been over three years since
[he] engaged in any conduct that would suggest that it would be
against the public interest to issue'' him a new registration.
Exceptions at 15. This argument ignores that Respondent's testimony
at the proceeding is itself conduct which demonstrates that granting
his application would be inconsistent with the public interest. In
addition, that three years have passed without further incident is
hardly impressive given that he has been without a registration
during this period, thus denying him of the means to issue more
fraudulent prescriptions.
---------------------------------------------------------------------------
Respondent cites Azen v. DEA, 76 F.3d 384 (tablet) (9th Cir. 1996),
an unpublished decision, as support for his contention that in light of
his evidence of rehabilitation, it would be ``unduly harsh'' to deny
his application. Putting aside that the Ninth Circuit upheld the
Agency's decision to revoke Dr. Azen's registration, Respondent ignores
that in 1993, the Agency previously gave him a second chance to
demonstrate that he could be entrusted with a registration, yet he
again breached this trust. Respondent also ignores under the Agency's
rules, he had a way back to regaining his registration. That he could
not testify truthfully about either the 1989 episode or his more recent
criminal behavior and abuse of alprazolam makes clear that,
notwithstanding his rehabilitation efforts, he cannot be entrusted with
a new registration.\20\ Accordingly, Respondent's application will be
denied.
---------------------------------------------------------------------------
\20\ I find it unnecessary to give any weight to the 2005
incident in which Respondent represented to a Chicago law firm that
he had an active and unrestricted medical license when his licensed
had been suspended. See GX 8. Between his presentation of the two
fraudulent prescriptions in 1989, his false statement to the police
following his arrest, his false testimony in the 1991 proceeding,
and the more recent incidents of his calling in numerous fraudulent
prescriptions, there is more than ample evidence to question his
credibility.
---------------------------------------------------------------------------
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well
as by 28 CFR 0.100(b) and 0.104, I hereby order that the application of
Alan H. Olefsky, M.D., be, and it hereby is, denied. This Order is
effective May 11, 2011.
Dated: April 1, 2011.
Michele M. Leonhart,
Administrator.
[FR Doc. 2011-8543 Filed 4-8-11; 8:45 am]
BILLING CODE 4410-09-P