[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Notices]
[Pages 24808-24813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12231]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 94-59]
Robert M. Golden, M.D.; Revocation of Registration
On May 25, 1994, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Robert M. Golden, M.D., (Respondent) of Roswell,
Georgia, notifying him of an opportunity to show cause as to why DEA
should not revoke his Certification of Registration, AG6243125, under
21 U.S.C. 824(a), and deny any pending applications for renewal of such
registration as a practitioner under 21 U.S.C. 823(f), for the reason
that his continued registration would be inconsistent with the public
interest.
On July 18, 1994, the Respondent, through counsel, filed a timely
request for a hearing, and following prehearing procedures, a hearing
was held in Atlanta, Georgia, on April 4-6, 1995, before Administrative
Law Judge Paul A. Tenney. 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 August 4, 1995, Judge Tenney issued his
Findings of Fact, Conclusions of Law, and Recommended Ruling,
recommending that the Respondent's registration be suspended for one
year, and after the one-year period of suspension, that the
registration be limited to prescribing Schedules IV and V controlled
substances only, ``perhaps in an institutional setting.'' Both parties
filed exceptions to his decision, and on September 13, 1995, the record
of these proceedings and Judge Tenney's opinion were transmitted to the
Deputy Administrator. On February 26, 1996, the Respondent filed with
the Deputy Administrator a Motion to Reopen Evidence. By letter dated
February 27, 1996, the Deputy Administrator afforded the Government an
opportunity to respond to the Respondent's motion, and on March 27,
1996, the Government filed a response to the motion.
The Deputy Administrator has fully considered the record, to
include the Respondent's Motion to Reopen, in its entirety, and
pursuant to 21 C.F.R. 1316.67, hereby issues his final order based upon
findings of fact and conclusions of law as hereinafter set forth. The
Deputy Administrator adopts the Findings of Fact, Conclusions of Law,
and Recommended Ruling of the Administrative Law Judge, with
specifically noted exceptions, 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 on September 6, 1990, the
Respondent was issued a DEA Certificate of Registration, number
AG6243125, authorizing him to handle controlled substances in Schedules
IV and V as a practitioner. This registration was due to expire on
September 30, 1993, and on August 17, 1993, the Respondent filed an
application to renew his registration. In block 2b of that application,
the Respondent wrote that in 1986 his Georgia license had been acted
upon concerning his handling of Schedules II and III controlled
substances, but that he was ``currently off probation.''
Further investigation disclosed that disciplinary action was taken
against the Respondent by the Georgia State Board of Medical Examiners
(Board) pursuant to a Consent Order dated April 1, 1987. Although the
order noted that ``[t]his agreement is not an admission of wrongdoing
for any purpose other than resolving the matters pending before the
Board,'' and noted that the ``Respondent waives any further findings of
fact,'' the matters resolved included, among other things, allegations
of recordkeeping violations, the prescribing or dispensing of
controlled substances while not acting in the usual course of
professional practice, and the prescribing or ordering of controlled
substances for an illegitimate medical purpose. As a result of the
consent order, the Respondent's medical license was placed on probation
for a period totalling four years, with terms and conditions of
probation to include: (1) That the Respondent would not prescribe,
administer, or dispense, in the course of his office practice, any
Schedule II, IIN, III, or IIIN controlled substances; (2) that the
Respondent would personally maintain a daily log of all Schedule IV
controlled substances prescribed, administered, or dispensed in his
office for at least one year; (3) that the Respondent participate in a
program of continuing education with at least 100 hours focusing on
drug abuse and/or pharmacology; (4) that the Respondent abide by all
State and Federal laws relating to drugs with the Respondent's license
subject to revocation; and (5) that the Respondent pay a fine of
$5,000.00.
Before Judge Tenney, the Respondent testified that his state
probation ended in 1990 or 1991, but that he had never requested
reinstatement of his authorization to handle Schedule II or III
controlled substances. No evidence to the contrary was presented by the
Government. Therefore, the Deputy Administrator finds that the
Respondent is currently authorized by the State of Georgia to handle
only controlled substances in Schedules IV and V.
A Special Agent (Agent) for the DEA testified before Judge Tenney
concerning an undercover operation he conducted involving the
Respondent in 1985. Specifically, the Agent described three visits he
made to the Respondent's office between April 9, 1985, and May 7, 1985.
The parties do not dispute that the Respondent refused to prescribe
Percodan for the Agent during the first visit. However, during the
second visit the Respondent prescribed Halcion 0.5 mg, and during the
third visit the Respondent prescribed Valium, 10 mg, with one refill.
Both Halcion and Valium are Schedule IV controlled substances. The
Government asserted that the Respondent issued these prescriptions to
the Agent without a legitimate medical purpose.
In the Fall of 1992, a Roswell Police Department Detective
contacted a DEA Division Investigator (Investigator) and requested
assistance in investigating the Respondent's prescribing activities.
The Investigator testified before Judge Tenney that he was asked to
interview a cooperating individual (CI), and he participated in a
telephone conversation
[[Page 24809]]
with this individual on November 3, 1992. The CI told the Investigator
that she was obtaining Xanax prescriptions from the Respondent, but
that he would write these prescriptions in the names of other people
``so he wouldn't create suspicion as to over prescribing.'' The parties
stipulated that Xanax is a Schedule IV controlled substance. In a
subsequent conversation with the CI, she told the Investigator that the
prescriptions were issued in the names of two individuals, DT and AP.
Subsequently, a search warrant was obtained, and the patient
records of, among others, the CI, AP, DT, and a Roswell Police Officer
(Officer), who also participated in the investigation, were obtained
from the Responsdent's office. Also, the Investigator visited local
pharmacies and obtained prescriptions from them. Specifically, the
Investigator testified that he did not locate any prescriptions for
Xanax written in the CI's name during the relevant time period.
However, he did obtain prescriptions in the name of AP dated in May of
1992, June 2, 1992, June 15, 1992, and September 17, 1992, (this date
was stipulated to by the parties before Judge Tenney, for the
prescription in question appears to be dated 7-17-92), for 2 mg Xanax,
in an amount totalling 180 dosage units. The Investigator also
retrieved prescriptions in the name of DT, one dated April 27, 1992,
for 30 dosage units of Xanax 1 mg, and three others dated July 21,
1992, July 31, 1992, and August 20, 1992, for a total of 150 dosage
units of Xanax, 2 mg.
The Investigator also testified that in March of 1993, he
telephonically interviewed DT. DT told the Investigator that he had
visited the Respondent one time in April of 1992, and that the CI was
with him during that visit. DT stated that his purpose in seeing the
Respondent in April of 1992 was to receive a prescription for the CI
written in DT's name. He further stated that he had not seen the
Respondent since that April 1992 visit to this office. DT told the
Investigator that the Respondent ``delivered, hand delivered,
[subsequent prescriptions] in his name to [the CI] down at Kroger
parking lot.'' DT then told Investigator that the CI would pick him up,
``and they would go get the prescription filled for the [Xanax].''
However, the Investigator testified that he did not ask DT what
happened to the pills after the prescriptions were filled, although the
Investigator testified that since DT told him the purpose of his visit
with the Respondent was to obtain prescriptions for the CI, he assumed
the pills were also for the CI. The Investigator was also aware that DT
worked for the CI's husband.
The CI testified consistently with DT's testimony concerning this
practice. Furthermore, a Roswell Police Officer (Officer) also
testified before Judge Tenney, stating that in November of 1992, she
had interviewed DT. DT had told her that, after his initial visit,
accompanied by the CI, with the Respondent, the CI would hen ``just
have to call [the Respondent,] and he would write a prescription in
[DT's] name and [the CI] would meet [DT] and they would get the
prescriptions filled together.'' DT also told the Officer that after
the prescriptions were filled, he ``would take a portion of the
prescription, 8 to 10 tablets, and then [the CI] would get the rest of
them.''
Further, DT's patient chart obtained from the Respondent's office
consisted of a medical history form dated April 27, 1992, on which was
noted that the reason for the visit was ``anxiety.'' Attached to the
medical history form was a medical evaluation form, also dated April
27, 1992, which noted a medical treatment plan of prescribing Xanax, 1
mg, without refill. The third page of DT's chart contains annotations
dated August 20, 1992, and September 23, 1992, noting ``recurrent
anxiety.'' On August 20, 1992, a prescription for 30 dosage units of
Xanax, 2 mg with one refill was authorized, and on September 23, 1992,
the chart notes that a prescription for 30 dosage units of Xanax, 2 mg
with one refill was also issued. The August entry also contains a
notation of ``130/80.'' However, there are no chart entries dated July
21 or 31, 1992. When asked if he saw DT on those dates, the Respondent
answered, ``if I wrote the prescriptions, handwritten, then I did see
him.'' However, Judge Tenney noted that ``[t]he testimony of the
Respondent concerning [DT's] anxiety is sketchy, and his statement was
said with little sincerity.'' The Deputy Administrator agrees that the
record supports Judge Tenney's credibility finding on this point.
Finally, the Deputy Administrator notes that DT was present and
available at the hearing before Judge Tenney, but that neither party
called him to be a witness.
The CI testified before Judge Tenney, stating that she had been a
patient of the Respondent's since approximately 1986 or 1987. Sometime
prior to 1992, she entered a drug rehabilitation program, and she
testified that her husband had informed the Respondent that she ``was a
drug addict and told him not to ever see [her] again.'' However, the CI
testified that she resumed seeing the Respondent, and in April of 1992,
she asked the Respondent to write prescriptions for her in the name of
other people in order to avoid problems with her husband. Specifically,
she asked him to write Xanax prescriptions in DT's name, and later, in
AP's name. The CI testified that the Respondent did not maintain a
patient chart for her during this time, and he did not do any medical
examinations or tests. The CI's patient chart obtained from the
Respondent's office contains no entries dated later than July 2, 1991.
However she stated that she was present when the Respondent gave her
prescriptions in the name of other people, and that the Respondent had
written her prescriptions in the name of DT approximately four or five
times.
Further, the CI testified about contacts she had made with the
Respondent under surveillance by the police on October 1, 1992, and on
October 20, 1992. As to the visit on October 20, 1992, the CI testified
that she accompanied AP into the Respondent's office, that she wore a
concealed transmitter, that a tape and transcript were made of the
meeting, and that the transcript offered into evidence was an accurate
version of the transaction. The Respondent had no objection to the
admission into evidence of the transcript.
Further, a detective with the Roswell Police Department (Detective)
testified before Judge Tenney that on October 20, 1992, he monitored
through the concealed transmitter AP and the CI enter the Respondent's
office. During the course of this visit, the CI remained in the
treatment room with AP and the Respondent, and the CI told the
Respondent ``I brought [AP] so we could get a script.'' The Respondent
asked `` * * * uh, so you need like Xanax?'' Then AP stated ``[t]hat
would be cool,'' and the CI added ``[y]ea.'' During the course of the
conversation AP informed the Respondent, ``I don't have any cash on me
today,'' and the CI told the Respondent, ``Umm, well I'm pay'in ya. * *
*.'' The CI stated, ``[n]ow you won't have to see [AP] again if you
want to give another refill?'' The Respondent replied, ``Well I put a
refill on it so you['re] all good with that,'' to which the CI replied,
``OK OK but, alright how much is that[?]''. The Respondent replied,
``uh, thirty.'' The CI asked again, ``[s]o what do I owe you?'' The
Respondent then said ``Uh, one hundred even.'' The transaction took
approximately 15 minutes, and a prescription for 30 dosage units of
Xanax, 2 mg, with one refill authorized, was written in AP's name. The
prescription was recorded in AP's patient chart with a notation of
``recurrent anxiety.'' However, the
[[Page 24810]]
Detective testified that, after the CI and AP left the Respondent's
office, the CI actually gave the Xanax prescription to the police. The
CI's testimony concerning these events was consistent with the
Detective's testimony. The CI also testified that the Respondent had
handed the prescription to her.
On cross-examination, the CI reviewed prescription survey materials
presented by the Respondent, including a summary of prescriptions which
the CI had received from other physicians or dentists between January
of 1991 and October 28, 1992. The CI testified that she had filled
these prescriptions and had consumed the medications, denying that she
had sold any of the substances. The CI also stated that the prescribing
physicians had conducted physical examinations prior to issuing the
listed prescriptions, and that the dentists had prescribed the
medication because of numerous root canal procedures she had undergone.
Finally, she testified that ``[t]he only doctor I ever used was [the
Respondent] because he made it easy.''
As to the October 1, 1992 incident, the Detective testified that
the CI, wearing a transmitter, met with the Respondent in the parking
lot of a Dunkin' Dounuts, as had been prearranged. Although a tape
recording was made of this visit, the Detective testified that the tape
recording was misplaced. However, the Detective testified that the CI
was trying to obtain a prescription for Xanax from the Respondent, and
that he had refused to give her such a prescription. The CI's testimony
agreed with the Detective's version of these events.
However, the Detective also testified that on that date the CI did
obtain a bottle of a non-controlled substance, Fioricet, which she
turned over to the Detective's assistant just after the meeting with
the Respondent. However, this bottle of pills was also misplaced by the
Roswell Police Department. Further, the Respondent testified concerning
the Fioricet, denying that he had given the CI this bottle of pills.
Unlike Judge Tenney's finding on this point, the Deputy Administrator
finds the evidence concerning the Fioricet inconclusive.
The Detective also testified that he had interviewed AP, and that
she had agreed to assist the Roswell Police with their investigation.
The Detective testified that he was aware that AP was a ``drug dealer''
or ``drug user,'' or ``drug abuser,'' prior to using her in an
undercover capacity in this investigation. The Detective also testified
that he was aware that AP ``had a previous criminal history.''
The record revealed that AP prepared a patient history form for the
Respondent dated May 19, 1992, and that she had received prescriptions
for Xanax from the Respondent during the course of her treatment in
May, June, and September of 1992. AP's patient chart contains an entry
dated September 17, 1992, noting a Xanax prescription and ``anxiety
recurrent,'' and an entry dated October 20, 1992, noting a Xanax
prescription, and also noting ``recurrent anxiety.''
Further, a Roswell Police Officer (Officer) testified before Judge
Tenney, stating that on September 23, 1992, she accompanied AP into the
Respondent's office for the purpose of obtaining a prescription for
Xanax. AP wore a transmitter during this visit. The Officer testified,
and the Respondent's counsel stipulated to, the accuracy of the
transcription made of the tape recording of this visit.
Further, although the Officer did not wear a transmitter, she
testified concerning her transaction with the Respondent, stating that
the Respondent did not ask her questions about her medical condition or
history, although this was her first visit to the Respondent's office.
The Officer testified that she had told the Respondent that she was
``adjusting to moving back in with [her] parents,'' but that she did
not discuss any psychological problems. The Officer also testified that
she did not exhibit any behavior such as trembling or shaking,
restlessness, or shortness of breath, but rather maintained a calm
demeanor. Her blood pressure was taken, and the Respondent told her
``it was good.'' The entire transaction took ``no more than five to ten
minutes.'' The Respondent gave the Officer a prescription for Xanax. 1
mg, 30 dosage units, without a refill. The Officer also testified that
she paid forty dollars for this visit.
Next, the Officer testified that on October 15, 1992, she returned
to the Respondent's office wearing a transmitter. Her transaction with
the Respondent was recorded, and a transcription of the recording was
entered into the record without objection and stipulated to by the
Respondent's counsel. The Officer testified that during this
transaction, in which she spent five to seven minutes with the
Respondent, she was not exhibiting any signs of nervousness, but rather
maintained a calm and relaxed demeanor. The Officer told the Respondent
that she was feeling fine. However, she asked that the Xanax dosage be
increased to the 2 milligram strength. Without conducting any form of
medical examination or test, or without discussing the medical basis
for the Officer's request for a stronger dosage (i.e. change in
physical or psychological condition that might justify the new dosage),
the Respondent gave her a prescription for 30 Xanax, 2 mg. However,
when he was asked to put a refill on the prescription, he stated ``um,
on this type of drug I generally don't like to because it's a
controlled drug. * * * And because you're getting the two, that's like
double strength. * * * If you got the one, I would probably refill it.
* * * What you could do is just split them in half (inaudible).'' The
Officer paid the Respondent forty dollars at the conclusion of this
transaction.
The Officer's medical chart retrieved from the Respondent's office
showed an entry dated September 23, 1992, noting that the Officer had a
history of personal problems, and the Xanax prescription was entered.
Further, a second entry for October 15, 1992, noted that she was
``doing well on meds.'', and the Xanax prescription was noted.
The Respondent testified before Judge Tenney. First, as to his
treatment of AP, he stated that he had diagnosed AP as being moderately
obese and with ``generalized anxiety disorder.'' He also stated that he
had no information, when he began treating her, that she might be
deceiving him. Rather, he testified that he prescribed Xanax for AP for
``[i]t is clearly the drug of choice for any anxiety.'' He also
testified that the prescriptions he gave AP for Xanax were medically
necessary, and he denied having any arrangements to give her
prescriptions for substances ``without any medical necessity.'' For
example, he testified that during the September 23, 1992 visit, AP had
described herself as ``a nervous wreck,'' consistent with previous
expressions of her condition. Based upon his observation of her
behavior and her comments, he prescribed Xanax for her, for it was
medically necessary. He also recalled that on one occasion AP came into
his office with the CI, but that on that visit, he had given the Xanax
prescription to AP, and that that prescription was also medically
necessary based on her condition. He denied having any idea that AP was
going to give that prescription to the CI or divide the medications
with her.
Concerning the visit of October 20, 1992, the Respondent testified
that, at the time, he did not question the CI's statement ``I brought
[AP] so we could get a script,'' and even though the CI paid for AP and
herself, the Respondent interpreted that as ``she was paying for her
friend also * * * which is not
[[Page 24811]]
unusual. I have people paying for other people all the time.'' The
Respondent testified that he thought AP was truthful and genuine.
The Respondent also testified about his treatment of DT. He stated
that DT had the classic symptoms for generalized anxiety disorder,
which was consistent with DT's complaint recorded on his patient intake
form. The Respondent also stated that he did not have any knowledge
that DT ``was faking his condition,'' or that he was dividing pills
with the CI. Rather, the Respondent found DT to be truthful and
genuine. The Respondent opined that the prescriptions he had given to
DT were medically necessary. However, the Respondent acknowledged that
the prescriptions written to DT on July 21, 1992, and July 31, 1992, do
not appear in his patient chart. Further, when Government counsel asked
him if he could tell whether he actually saw DT on July 21 and July 31,
the Respondent replied, ``[i]f I wrote the prescriptions, handwritten,
then I did see him.''
The Respondent testified that he had reviewed all of the taped
transactions between himself and AP, DT, the CI, and the Officer. He
testified that the taped transactions showed that he had not discussed
using drugs for recreational purposes with any of these individuals.
Next, the Respondent testified about his treatment of the CI,
noting that the CI first became his patient in approximately 1985, that
he became aware that the CI had undergone treatment for drug addiction,
and that from 1991 to the date of the hearing, he had not written
prescriptions for controlled substances for the CI. He denied having
any arrangement with the CI or providing her with prescriptions for
controlled substances either directly or indirectly.
The Respondent also offered into evidence a prescription profile
pertaining to the CI. After he collected the survey from local
pharmacies, he contacted two of the doctors concerning their
prescribing practices to the CI. The Respondent testified that he
wanted to determine whether the doctors were aware that the CI was
obtaining controlled substances from various other doctors during this
time period. He testified that, prior to 1993, he had assumed the CI
was not seeing other doctors. However, other than these two doctors,
the Respondent testified he did not contact any of the other doctors
listed on the prescription profile.
The Respondent also testified about treating the Officer. He stated
that when the Officer presented herself as a patient, he was unaware
that she was not telling him the truth. Rather, she appeared to be
truthful and genuine. After taking her history and observing her, he
diagnosed her with general anxiety disorder. Also, he recalled that she
had told him, ``that she either was unemployed or had lost her job. She
had a lot of stress at home, a lot of family stress, a lot of job
stress. That she was going to be forced to * * * move back home because
of her lack of employment. She was very upset, very nervous.''
Further, the Respondent testified that during the visit on October
15, he had no idea that he was giving the Officer a prescription for a
drug for other than medical use. The Respondent also opined that, when
the Officer told him she was feeling fine, she meant that she was
feeling fine on the medication. He denied that the Officer was
exhibiting drug seeking behavior, and he opined that her request for a
stronger dosage of Xanax, despite ``feeling fine'' on the previous
prescription, was not suspect behavior.
Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy
Administrator may revoke the Respondent's DEA Certificate of
Registration, and deny any pending applications, if he determines that
the continued registration would be inconsistent with the public
interest. Section 823(f) provides the following relevant factors for
consideration in determining the public interest:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, 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, all five factors are relevant. As to factor one,
``recommendation of the appropriate State licensing board,'' in 1987,
the Board took disciplinary action in response to allegations of
wrongdoing by the Respondent related to controlled substances. However,
under the terms of the consent order between the Respondent and the
Board, the agreement was not an admission of wrongdoing, and further
fact finding was waived. The probation period ordered by the Board
expired in approximately 1991. Further, the Deputy Administrator notes
that there is no evidence of any recommendation by the Board responsive
to the matters raised in this proceeding.
As to factor two, the Respondent's ``experience in dispensing * * *
controlled substances,'' and factor four, the Respondent's
``[c]ompliance with applicable State, Federal, or local laws relating
to controlled substances,'' it is significant that, to be effective, a
prescription for a controlled substance ``must be issued for a
legitimate medical purpose by an individual practitioner acting in the
usual course of his professional practice.'' 21 CFR 1306.04(4). Also, a
prescription for a controlled substance ``shall bear the full name and
address of the patient. * * * '' 21 CFR 1306.05.
Despite the Respondent's testimony and arguments to the contrary,
Judge Tenney found that the ``evidence proves that the Respondent
prescribed Xanax in [AP's] name on October 20, 1992, with full
knowledge that [the CI] was an intended recipient of that controlled
substance.'' Judge Tenney found, and the Deputy Administrator agrees,
that the transcript of that transaction revealed the following: (1)
That the CI stated, ``I brought April so we could get a script''; (2)
that both the CI and AP affirmatively responded to the Respondent's
question, ``so you need like Xanax. (unintell)?''; (3) that the CI paid
for the Xanax prescription; and (4) that the CI inquired as to whether
AP would have to be seen again in order for the Xanax prescription to
be refilled, with the Respondent explaining that he had put a refill on
the prescription ``so you['re] all good with that.'' Further, both the
CI and the Detective testified that, after the CI and AP left the
Respondent's office, it was the CI who handed the Xanax prescription to
the police. Therefore, the Deputy Administrator agrees with Judge
Tenney's conclusion that ``[a]ll of these excerpts indicate knowledge
on the part of the Respondent that [the CI] was to receive the Xanax,''
not the patient actually named on the prescription. The Deputy
Administrator also agrees with Judge Tenney, that such a prescribing
practice violates DEA regulations.
However, the Deputy Administrator also finds relevant the
Respondent's prescribing practices pertaining to DT and the Officer.
The Respondent
[[Page 24812]]
testified that his prescribing to DT and the Officer were for
legitimate medical purposes responsive to their medical conditions.
Assuming, arguendo, that the Respondent prescribed Xanax for DT's use
and not the CI's, then the Deputy Administrator makes the following
findings. First, after the initial office visit of DT and the Officer,
the Respondent prescribed 30 dosage units of Xanax, 1 mg strength,
without refill. However, in subsequent instances involving both
individuals, the Respondent increased the Xanax strength to the 2 mg
strength without providing a medical purpose other than the fact that
the patient asked for an increased dosage. Neither patient's chart
reflects a contemporaneous entry of a medical indication which would
justify the increased strength of the medication, either from medical
tests performed, or from a change in medical history provided by the
patient. Also, DT testified that the Respondent increased his dosage
strength without DT actually seeing him.
When questioned before Judge Tenney, the Respondent failed to
provide any medical justification for such prescribing. Although DT's
medical chart fails to note any entries on July 21, 1992, or July 31,
1992, the Respondent issued prescriptions to DT on July 21, 1992, July
31, 1992, and August 20, 1992, which, including authorized refills,
totalled 150 dosage units of Xanax, 2 mg. Further, the record contains
the following dosage information about Xanax from the Physicians' Desk
Reference at page 2370:
Treatment for patients with anxiety should be initiated with a
dose of 0.25 to 0.5 mg given three times daily. The dose may be
increased to achieve a maximum therapeutic effect, at intervals of 3
to 4 days, to a maximum daily dose of 4 mg, given in divided doses.
The lowest possible effective dose should be employed and the need
for continued treatment reassessed frequently. The risk of
dependence may increase with dose and duration of treatment.
Yet in this 30 day period of time, the Respondent provided DT with
prescriptions for 150 dosage units of Xanax 2 mg., which, if consumed
in ``divided doses'', would equal 10 mg a day, over twice that
recommended.
Although no expert medical evidence was presented to assist the
Deputy Administrator in reaching a conclusion concerning the legitimate
medical purpose for such prescribing in either the case of DT or the
Officer, the Deputy Administrator finds significant that the Respondent
has failed to provide any medical purpose for increasing the dosage
strength. Thus, the evidence merely demonstrates that the increase is a
result of his patients' requests, rather than the result of the
application of the physician's medical judgment. Under these
circumstances, the Deputy Administrator previously has found that such
a prescribing practice, when a patient's demands replace the
physician's judgment, equated to issuing prescriptions without a
legitimate medical purpose. See Robert L. Dougherty, Jr., M.D., 60 FR
55047 (1995); Harland J. Borcherding, D.O., 60 FR 28796 (1995).
As to factor three, the Respondent's ``conviction record under
Federal or State laws relating to the * * * dispensing of controlled
substances,'' the Deputy Administrator notes that there is no evidence
of any ``conviction record'' pertaining to the Respondent.
Finally, as to factor five, ``[s]uch other conduct which may
threaten the public health or safety,'' the Deputy Administrator finds
it relevant that the Respondent, knowing that the CI had been treated
for drug abuse, facilitated her access to controlled substances.
Further, he did not investigate whether the CI had received other
prescriptions for controlled substances at the same time that he was
providing her access to such medications until 1993, and arguably then
only out of his own self-interest. Therefore, the Deputy Administrator
agrees with Judge Tenney in concluding that the Government has provided
preponderating evidence that a basis exists to find the Respondent's
continued registration inconsistent with the ``public interest.''
Yet Judge Tenney found that the Respondent's violations concerning
the CI involved isolated misconduct, and he found that the ``limited
nature of the Respondent's conduct mitigates in his favor.'' However,
the Deputy Administrator disagrees with this conclusion. The
Respondent's conduct relating to the CI, a known drug abuser, coupled
with his prescribing practices for DT and the Officer, demonstrate
cavalier behavior regarding controlled substances. Further, throughout
the proceedings before Judge Tenney, the Respondent did not acknowledge
any possibility of questionable conduct in his prescribing practices,
to include his treatment of the CI, DT, or the Officer. The Deputy
Administrator was provided no basis to conclude that the Respondent
would lawfully handle controlled substances in the future. Revocation
is the appropriate remedy under such circumstances. See Leo R. Miller,
M.D., 53 FR 21932 (1988) (noting that the revocation of a DEA
Certificate of Registration ``is a remedial measure, based upon the
public interest and the necessity to protect the public from those
individuals who have misused * * * their DEA Certificate of
Registration and who have not presented sufficient mitigating evidence
to assure the Administrator that they can be trusted with the
responsibility carried by such a registration''); see also Konstantin
v. DEA, 1955 U.S. App. Lexis 3005 (9th Cir. 1995) (holding that the
Administrator did not abuse his discretion in increasing the sanction
imposed on Dr. Konstantin); River Forest Pharmacy, Inc. v. DEA, 501
F.2d 1202 (7th Cir. 1974), (holding that the Acting Administrator's
increase of sanction over that recommended by the Administrative Law
Judge was not an abuse of discretion).
Further, the Deputy Administrator notes that he has discretionary
authority to request that the Administrative Law Judge reopen the
record to receive newly discovered evidence on the basis that a final
order must be issued based upon a full and fair record. See 5 U.S.C.
556; 21 U.S.C. 824(c); 21 CFR 1316.67. However, to prevail on such a
motion, the moving party must show that the evidence sought to be
introduced (1) was previously unavailable and (2) would be material and
relevant to the matters in dispute. See, e.g., I.N.S. v. Abudu, 485
U.S. 94, 108 S.Ct. 904, 99 L.Ed. 2d 90 (1988) (finding that a motion to
reopen an administrative record is analogous to ``a motion for a new
trial in a criminal case on the basis of newly discovered evidence, as
to which courts have uniformly held that the moving party bears a heavy
burden''); see generally, Charles H. Koch, Jr., Administrative Law and
Practice, 6.74 (1995 & Supp. 1996) and cases cited therein.
Here, the Respondent has requested to reopen the record so that he
can submit enumerated items of evidence. Yet he does not assert whether
or not any of this evidence was unavailable to him prior to the closing
of the record, and he does not provide any assertions as to the
relevancy of the proposed evidence. However, the Deputy Administrator
has considered these issues and makes the following findings.
As for the request to reopen the record so that the Respondent can
explore the credibility of DT and AP, the Deputy Administrator finds
that the Respondent had adequate notice and opportunity prehearing to
explore their credibility. DT was even available at the hearing, but
the Respondent did not call him. As to AP's criminal record, the
Detective testified that AP had such a record. Also, the Respondent was
notified prehearing that AP could be contacted through her probation
officer. Given the
[[Page 24813]]
Respondent's prehearing opportunities, the Deputy Administrator finds
that the Respondent has failed to satisfy the burden necessary to
reopen the record on this basis.
Next, the Respondent seeks to reopen the evidence in order to cross
examine a witness, HH, concerning her drug dealing activities during
her association with the Respondent in the summer of 1992. However, the
facts concerning her involvement, and subissues involving other
employees of the Respondent, were not relied upon by Judge Tenney nor
by the Deputy Administrator in reaching a determination of this case.
Further, the Respondent does not provide a basis for asserting that
HH's credibility would be material in resolving this matter. Therefore,
the Deputy Administrator concludes that such impeachment evidence would
not be relevant so as to provide a basis to reopen the record.
Next, the Respondent seeks to reopen the evidence in order to
present testimony from other physicians, whom he claims will testify
about being deceived by the CI when they prescribed controlled
substances to her during the relevant period of 1992. The Deputy
Administrator notes that the Respondent had access to this information
prehearing, for he introduced into the record the prescription survey
which identified the prescribing physicians, and he testified
concerning his interview of some of these physicians. Further, the
Respondent did not assert that the testimony of these physicians was
previously unavailable. Therefore, the Respondent has failed to meet
the requirements to reopen the record on this basis.
The Respondent also asserted that the Roswell police intentionally
destroyed or disposed of exculpatory evidence, to include a tape
recording of the CI's and the Respondent's telephone conversations on
September 17, 1992, and on October 1, 1992, and the transcript of the
transaction that occurred on October 1, 1992, when the Respondent
refused to provide the CI with a prescription for Xanax. Yet the Deputy
Administrator notes that there is no dispute that the Respondent
refused to provide the CI with a Xanax prescription on October 1, 1992.
Further, the Respondent presented no evidentiary basis for his belief
of intentional destruction of evidence. He also failed to demonstrate
how the evidence he now proposes to introduce into the record on this
point would be material. Therefore, the Respondent failed to meet his
burden in reopening the record on this basis.
Finally, the Respondent asserts that the transcripts of the tape
recordings from the September 23, 1992, transaction were not accurate.
Yet the Respondent had access to the tape recordings and the
transcripts well before the hearing in this matter. Again, the
Respondent failed to establish the requisite basis for reopening the
record. Accordingly, the Deputy Administrator denies the Respondent's
motion to reopen the record.
Both the Respondent and the Government filed exceptions to Judge
Tenney's opinion, and the Deputy Administrator has considered these
exceptions. The exceptions were extensive, are a part of the record,
and accordingly shall not be restated at length herein.
However, the Deputy Administrator finds no merit in the
Respondent's exceptions, for the Respondent merely reargued his case
and his interpretation of the credibility and sufficiency of the
evidence of record. For example, as to the incident on October 20,
1992, involving the Respondent, AP, and CI, the Respondent takes
exception to Judge Tenney's conclusion that the Respondent provided a
prescription in the name of AP for the CI's use. The Respondent argues
that it is significant that the transcript reflects that all of the
statements relied upon by Judge Tenney originated from the CI, not the
Respondent. What is significant is the Respondent's actions in light of
the CI's statements, not his dialogue. Specifically, despite the CI's
language indicating her intent regarding the prescription, the
Respondent issued the prescription in AP's name, thus providing the CI
with the means to facilitate her intention. As previously written, the
Deputy Administrator has considered the Respondent's arguments and
found that they were not persuasive.
Likewise, the Deputy Administrator finds that the Government's
exception to Judge Tenney's finding concerning the Agent in 1985 also
lacked merit. The Deputy Administrator notes that the conversations
between the Agent and the Respondent, and the interpretation of the
meaning of those conversations, were strongly contested issues. Since
the transactions occurred over ten years prior to the hearing in this
matter, the Record demonstrates that the Agent's recollection and
resulting testimony before Judge Tenney understandably lacked
precision. Although tape recordings and transcripts were made at the
time, the DEA destroyed them in the normal course of business.
Therefore, the Deputy Administrator agrees with Judge Tenney, that
``[a] tape or transcript of the undercover visits, revealing the
precise language used by [the Agent] and the Respondent would be
critical in determining whether the medication was legitimately
prescribed.'' Given the state of the record, Judge Tenney concluded,
and the Deputy Administrator concurs, that ``a preponderance of the
evidence does not support a finding that the medication was prescribed
to the Agent for an illegitimate purpose.''
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823, and 28 CFR 0.100(b) and 0.104, hereby orders that DEA Certificate
of Registration, AG6243125, previously issued to Robert M. Golden, M.D.
be, and it hereby is, revoked, and any pending applications are hereby
denied. This order is effective June 17, 1996.
Dated: May 10, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-12231 Filed 5-15-96; 8:45 am]
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