[Federal Register Volume 60, Number 198 (Friday, October 13, 1995)]
[Notices]
[Pages 53434-53437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25339]



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DEPARTMENT OF JUSTICE

Drug Enforcement Administration
[Docket No. 94-6]


Marta I. Blesa, M.D., Continuation of Registration

    On October 14, 1993, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Snow Cause to Marta I. Blesa, M.D., (Respondent) of Temple 
City, California, notifying her of an opportunity to show cause as to 
why DEA should not revoke her DEA Certificate of Registration, 
AB8787799, and should not deny any pending application for renewal of 
her registration, under 21 U.S.C. 823(f) and 824(a)(4), as being 
inconsistent with the public interest. Specifically, the Order to Show 
Cause alleged that: (1) On at least five occasions in February and 
March 1991, the Respondent provided prescriptions for controlled 
substances to undercover agents without a legitimate medical purpose 
and not in the usual course of professional treatment; and (2) on March 
13, 1992, in the Superior Court of California, County of Los Angeles, 
the Respondent pled nolo contendere to, and was convicted of, three 
felony counts of willfully and unlawfully issuing a prescription for a 
controlled substance without a legitimate medical need and not in the 
usual course of professional treatment in violation of California 
Health and Safety Code Section 11153. On November 4, 1993, the 
Respondent, through counsel, filed a timely request for a hearing, and 
following prehearing procedures, a hearing was held in Los 

[[Page 53435]]
Angeles, California, on June 14 and 15, 1994, before Administrative Law 
Judge Mary Ellen Bittner. At the hearing both parties called witnesses 
to testify and introduced documentary evidence, and after the hearing, 
counsel for both sides submitted proposed findings of fact, conclusions 
of law and argument. On December 14, 1994, Judge Bittner issued her 
Opinion and Recommended Ruling, recommending that the Respondent's DEA 
registration not be revoked, subject to specified conditions. Neither 
party filed exceptions to her decision, and on January 17, 1995, Judge 
Bittner transmitted the record of these proceedings to the Deputy 
Administrator.
    The Deputy Administrator has considered the record in its entirety, 
and pursuant to 21 CFR 1316.67, hereby issues his final order based 
upon findings of fact and conclusions of law as hereinafter set forth. 
The Deputy Administrator adopts, in full, the Opinion and Recommended 
Ruling, Findings of Fact, Conclusions of Law and Decision of the 
Administrative Law Judge, and his adoption is in no manner diminished 
by any recitation of facts, issues and conclusions herein, or of any 
failure to mention a matter of fact or law.
    The Deputy Administrator finds that a Special Agent of the 
California Department of Justice, Bureau of Narcotic Enforcement, as a 
result of information received from an informant, conducted an 
investigation of the Respondent. The informant told the Special Agent 
that he abused opiates, specifically Dilaudid, which is a Schedule II 
controlled substance, and that he was addicted to heroin. He also 
stated that he had obtained triplicate prescriptions from the 
Respondent using his own and several other names, and that he had paid 
the Respondent for these prescriptions. Judge Bittner noted that 
California law requires that prescriptions for most Schedule II 
controlled substances be written on triplicate forms. The Special Agent 
then contacted California's triplicate prescription database and 
obtained information showing that between July 1987b and April 1990, 
the Respondent had issued triplicate prescriptions in the names 
provided by the informant, for over 3,400 dosage units, the majority of 
which were for Dilaudid or Percodan, also a Schedule II controlled 
substance.
    Next, the informant placed a recorded phone call to the 
Respondent's office on January 25, 1991, advised a member of the 
Respondent's staff that he wanted to purchase two triplicate 
prescriptions for two named individuals, neither of which was the 
informant, and that the informant would pick up the prescriptions later 
that day. In the presence of the Special Agent, the informant obtained 
four prescriptions that day in the name of the two previously 
identified individuals, and two of these prescriptions were for 
Dilaudid. The Special Agent testified that about $96 was paid for these 
prescriptions. On January 29, 1991, February 5, 1991, March 4, 1991, 
March 8, 1991, March 22, 1991, and March 27, 1991, the Special Agent 
either observed the informant pay for and receive triplicate 
prescriptions for controlled substances in the name of other 
individuals, or he actually paid for and received triplicate 
prescriptions for controlled substances for himself or on behalf of 
other named individuals, all issued by the Respondent. The 
prescriptions were for various drugs containing controlled substances, 
to include Dilaudid, Percodan, Valium, a Schedule IV controlled 
substance, and Tylenol No. 4 which contains codeine, a Schedule III 
controlled substance. At all times, neither the informant nor the 
Special Agent complained, of presented symptoms for, a medical 
condition.
    On May 8, 1991, the Special Agent served a search warrant at the 
Respondent's office and obtained a number of patients' records. He then 
forwarded those records to Dr. Escondon, who reviewed them, the Special 
Agent's reports of his undercover visits, and transcripts of his 
conversations with the Respondent. By letter dated July 16, 1991, Dr. 
Escondon advised the Special Agent that in his opinion none of the 
prescriptions reviewed were for legitimate medical purposes, that the 
Respondent knowingly wrote prescriptions for fictitious individuals, 
that the patient records indicated that the Respondent had failed to 
take adequate medical histories or perform appropriate physical 
examinations, and that she did not attempt to determine the etiology of 
the patients' conditions. He also wrote that in his opinion the 
Respondent was aware that the drugs she prescribed were not being used 
for legitimate medical reasons. This letter was made part of the record 
over the Respondent's objection and was considered by the Deputy 
Administrator with the Judge's noted caveat that Dr. Escondon's only 
qualification of record was his M.D. degree.
    On May 3, 1991, a complaint was issued based upon the prescriptions 
the Respondent had issued to the Special Agent, charging her with ten 
felony counts of unlawful prescribing in violation of Section 11153 of 
California's Health and Safety Code. In March 1992, the Respondent 
entered a plea of nolo contendere, and, among other things, she was 
sentenced to surrender her triplicate prescription blanks.
    At the hearing before Judge Bittner, the Respondent testified about 
her professional credentials and about her family, to include two young 
daughters. She also testified concerning specific instances in which 
the informant, a man over six feet tall, had intimidated her by 
harassing and threatening her and her family. She testified that there 
was no police department in Temple City, but that she had talked to 
someone at the Sheriff's Department on two occasions, and on both 
occasions she had not received any assistance. She also testified that 
in September 1989 her home had been burglarized, that the police had 
told her that the burglary was drug-related, but that there was no 
proof that the informant had been involved. The Respondent testified 
that in late 1988 or in early 1989, she believed that the informant was 
armed with an Army knife, and she was afraid he might kill someone to 
obtain the prescriptions. However, the Respondent stated that in 1990 
she stopped issuing triplicate prescriptions to the informant.
    The Respondent also testified that, prior to issuing the informant 
triplicate prescriptions for Dilaudid, she had never prescribed 
Dilaudid to any other patient, and that in total she had issued 
triplicate prescriptions no more than two or three times to two 
patients, both of whom had cancer. However, the Respondent testified 
that she did not think her triplicate prescription practices pertaining 
to the informant and others associated with the informant were 
appropriate, and that in order to prevent further situations such as 
those involving the informant, she had undergone therapy and had taken 
seminars about issuing prescriptions and medications. Respondent 
testified that she was shy, but that her experience with the informant 
and resulting therapy made her confident that such a situation would 
not happen again. She emphasized that she knew the correct procedures 
to use to issue triplicate prescriptions.
    The record also contains testimony from the Respondent's staff and 
patients, corroborating the Respondent's description of the informant's 
intimidating and harassing manner in his treatment of her, her staff 
members, and patients. These witnesses provided descriptions of 
specific instances of the informant's aggressive and threatening 
behavior, to include staff members' testimony about waiting after work 
to go to their cars together if the informant 

[[Page 53436]]
was in the vicinity, because they were afraid of him. The Respondent's 
office manager testified about letters the Respondent gave or mailed to 
the informant, advising him that she would no longer issue 
prescriptions to him and that he should consult another physician for 
treatment. However, she testified that, unlike other patients 
Respondent so advised, the informant merely ignored the letters.
    The record also contains testimony from the Respondent's colleagues 
who had covered the Respondent's practice in her absence. One colleague 
testified that she had had a threatening confrontation with the 
informant after he had followed her to her home. This colleague further 
testified about the Respondent's practice, and gave her opinion that 
the Respondent was a competent doctor. Another colleague also testified 
about the Respondent's practice, having had first-hand experience in 
covering for the Respondent in her absence, and he gave his opinion 
that the Respondent was conscientious in prescribing controlled 
substances. Finally, the Respondent introduced into evidence 
approximately fifty letters from colleagues, patients, friends, and 
acquaintances attesting to her abilities as a physician and the 
contribution her medical practice made to the community.
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy 
Administrator may revoke a DEA Certificate of Registration and deny any 
application for such registration, if he determines that the continued 
registration would be inconsistent with the public interest. Section 
823(f) requires 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, or conducting 
research with respect to 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 or 
safety. These factors are to be considered in the disjunctive; the 
Deputy Administrator may rely on any one or a combination of factors 
and may give each factor the weight he deems appropriate in determining 
whether a registration should be revoked or an application for 
registration denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42, 
54 FR 16422 (1989).
    In this case, factors two, three, and four are relevant in 
determining whether the Respondent's continued DEA registration would 
be inconsistent with the public interest. First, the record clearly 
establishes that part of the Respondent's experience in dispensing 
controlled substances includes dispensing such substances on numerous 
occasions between 1987 and 1990 to the informant and his associates 
without legitimate medical purpose and not in the usual course of 
professional treatment. The lack of adequate treatment record 
documentation of clinical justification for continued dispensing of 
controlled substances over a long period of time in individual patient 
treatment plans, the issuing of prescriptions without medical 
examination, and the knowing issuance of prescriptions for fictitious 
individuals are documented examples of Respondent's experience in 
dispensing controlled substances. Further, the record also establishes 
that, during January through March 1991, the Respondent had dispensed 
controlled substances to a Special Agent on several occasions, again 
without legitimate medical purpose or in the usual course of 
professional treatment. However, the Respondent testified that prior to 
issuing prescriptions to the informant and his associates, she had 
never prescribed Dilaudid, and in fact had only issued triplicate 
prescriptions on no more than two or three occasions. These acts relate 
to factor two, demonstrating the Respondent's experience in dispensing 
controlled substances.
    As to factor three, the Respondent's plea of nolo contendere and 
resulting conviction on three counts of willfully and unlawfully 
issuing a prescription for a controlled substance in violation of 
California Health and Safety Code Section 11153, establishes a basis 
for revoking the Respondent's registration by demonstrating her 
inability to comply with state laws relating to the distribution of 
controlled substances. See, e.g., Noell v. Bensinger, 586 F.2d 554, 557 
(5th Cir. 1978) (holding that a federal conviction based on a plea of 
nolo contendere was a sufficient basis for revocation of a DEA 
certificate of registration).
    Finally, the Respondent's conduct in dispensing controlled 
substances to the informant, his associates, and the Special Agent 
without legitimate medical purpose establishes that the Respondent did 
not issue triplicate prescriptions in compliance with applicable State 
law, and did not dispense controlled substances in compliance with 
Federal law. This conduct is clearly relevant as to factor four.
    The record contains other evidence which does not justify the 
Respondent's misconduct, but is appropriately considered in determining 
the public interest. Specifically, the Respondent acknowledged that her 
conduct in response to the informant's demands was inappropriate, and 
that she had taken corrective action in seeking therapy and 
professional training about dispensing controlled substances. Further, 
the record contains multiple letters recording observations of her 
colleagues and patients as to the nature of her practice, her 
professional level of medical competency, and her high level of ethical 
and moral conduct. Also evidence of the extremely intimidating nature 
of the informant and corroborated instances of threatening conduct 
provides additional factors which do not justify the Respondent's acts, 
but impact upon an analysis of the Respondent's conduct. Finally, 
testimony given which described the medical services provided by the 
Respondent to her community impacts upon the need for her continued 
medical contributions to that community. Therefore, the Deputy 
Administrator finds that the public interest is best served by not 
revoking the Respondent's registration under 21 U.S.C. 823(f) and 
824(a)(4) subject to the following restrictions: (1) The Respondent 
shall not dispense directly or administer any controlled substance 
except in a hospital setting; (2) the Respondent shall not issue 
prescriptions for any Schedule II controlled substances unless another 
physician has reviewed the patient record and concurs that the 
prescription is medically necessary; (3) the Respondent shall transmit 
quarterly to the Special Agent in Charge of DEA's Los Angeles Field 
Division or his designee a list of all controlled substance 
prescriptions she has issued; and (4) the Respondent shall consent to 
inspections of her registered premises pursuant to notices of 
inspection as described in 21 U.S.C. 880. These restrictions shall 
remain in place for three years beginning on the date of this order.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 21 CFR 0.100(b) and 0.104, hereby orders that DEA 
Certificate of Registration, AB8787799, issued to Marta I. Blesa, M.D., 
be, and it hereby is, continued subject to the conditions enumerated 
above. This order is effective November 13, 1995.


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    Dated: October 6, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-25339 Filed 10-12-95; 8:45 am]
BILLING CODE 4410-09-M