[Federal Register Volume 70, Number 108 (Tuesday, June 7, 2005)]
[Notices]
[Pages 33207-33209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11250]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Robert A. Smith, M.D., Revocation of Registration

    This order serves as a correction of the final order previously 
issued in this matter and published on May 10, 2005. On September 29, 
2004, the Deputy Administrator, Drug Enforcement Administration (DEA), 
issued an Order to Show Cause/Immediate Suspension of Registration to 
Robert A. Smith, M.D. (Dr. Smith) who was notified of an opportunity to 
show cause as to why DEA should not revoke his DEA Certificate of 
Registration AS6932669 under 21 U.S.C. 824(a)(4) and deny any pending 
applications for renewal or modification of that registration under 21 
U.S.C. 823(f). Dr. Smith was further notified that his registration was 
being immediately suspended under 21 U.S.C. 824(d) as an imminent 
danger to the public health and safety.
    The Order to Show Cause alleged in relevant part, that Dr. Smith 
diverted controlled substances for a substantial time by knowingly 
issuing fraudulent prescriptions to individuals, without a bona fide 
doctor-patient relationship or legitimate medical purpose. The Order to 
Show Cause also notified Dr. Smith that should no request for a hearing 
be filed within 30 days, his hearing right would be deemed waived.
    On October 20, 2004, a DEA investigator personally served the Order 
to Show Cause/Immediate Suspension of Registration on Dr. Smith's 
attorney at Respondent's medical office in Philadelphia, Pennsylvania. 
Since that date, DEA has not received a request for a hearing or any 
other reply from Dr. Smith or anyone purporting to represent him in 
this matter.
    Therefore, the Deputy Administrator of DEA, finding that (1) thirty 
days having passed since personal delivery of the Order to Show Cause/
Immediate Suspension of Registration to the registrant and (2) no 
request for hearing having been received, concludes that Dr. Smith is 
deemed to have waived his hearing right. See David W. Linder, 67 FR 
12,579 (2002). After considering material from the investigative file 
in this matter, the Deputy Administrator now enters her final order 
without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
    The Deputy Administrator finds that Dr. Smith is registered with 
DEA as a practitioner under Certificate of Registration AS6932669 with 
a registered location at 1420 Locust Street, Suite 200, Philadelphia, 
Pennsylvania. In May 2003, DEA began investigating Dr. Smith as a 
result of complaints from area pharmacies that were encountering large 
numbers of young, seemingly healthy individuals, filling prescriptions 
issued by Dr. Smith for OxyContin and Percocet, both schedule II 
controlled substances. These individuals paid cash for their 
prescriptions and appeared to be traveling long distances to have them 
prescribed and filled.
    On June 27, 2003, Independence Blue Cross (IBC) insurance 
investigators interviewed IBC beneficiary ``H.B.'' regarding 
prescriptions for OxyContin, Percocet and Methadone which had been 
issued by Dr. Smith under her name and insurance data. H.B. had never 
seen or heard of Dr. Smith and had no medical conditions warranting the 
prescriptions. It was also established that H.B.'s son's father, 
``M.P.,'' was a heroin addict and that M.P.'s sister, ``L.P.,'' who 
also had a history of narcotic's abuse, worked for Dr. Smith as his 
office assistant.
    On July 9, 2003, NBC investigators interviewed ``C.P.,'' who was 
L.P.'s sister. IBC's records reflected that on May 10, 2003, Dr. Smith 
issued prescriptions for Percocet and Alprazolam (Xanax), a schedule IV 
controlled substance, using C.P.'s name and policy, which were then 
paid for by insurance company. Investigators determined C.P. had never 
met or been examined by Dr. Smith, that she did not receive the 
prescriptions written in her name and had no medical conditions 
warranting them.

[[Page 33208]]

    On November 6, 2003, DEA Diversion Investigators responded to the 
Lombard Apothecary in Philadelphia to interview ``D.N.,'' who had 
attempted to fill a prescription for OxyContin issued by Dr. Smith 
using D.N.'s mother's name and insurance. D.N. admitted that her mother 
had no knowledge of the prescription and was not a patient of Dr. 
Smith. D.N. had asked Dr. Smith to issue her fraudulent prescriptions, 
as she had no medical insurance of her own. He also had written her a 
prescription for OxyContin, using her brother's name and insurance 
data. D.N. then used the OxyContin to feed her personal narcotics 
addiction.
    On November 26, 2003, ``J. S.'' was interviewed by local law 
enforcement authorities, with DEA Diversion Investigators present. She 
admitted receiving seven to ten prescriptions for OxyContin from Dr. 
Smith, per visit, on a weekly basis. These prescriptions would be 
written in J.S.'s name, as well as her father's and fiancee's names. 
She paid $65.00 per visit and an additional $100.00, each time, to 
ensure Dr. Smith would continue providing her fraudulent prescriptions. 
Additionally, Dr. Smith would ask J.S. for sexual favors during her 
office visits. While she personally declined to fulfill his requests, 
as a substitute, she paid another woman $100.00 to perform a sexual act 
upon Dr. Smith. J.S. also reported that Dr. Smith's office assistant, 
L.P., had provided her blank prescriptions in return for $40.00 and 
OxyContin pills.
    Dr. Smith also wrote prescriptions for ``A.D.,'' who had heard of 
Respondent's ``street'' reputation for providing controlled substance 
prescriptions. A.D. was first seen by Dr. Smith in February 2003 and 
the only examination involved measuring A.D.'s blood pressure. In March 
and April 2003, Dr. Smith issued prescriptions for OxyContin and 
Percocet, using both A.D.'s and his wife's names. In February 2004, Dr. 
Smith also wrote ten prescriptions for A.D. using A.D.'s name, his 
wife's name and a friend's name.
    On February 22, 2004, ``S.K.'' was found, apparently unresponsive, 
by her mother-in-law, who called 911. S.K. died of a drug overdose and 
a few weeks later S.K.'s mother-in-law contacted DEA Diversion 
Investigators and advised that S.K. had been addicted to narcotics and 
Dr. Smith was the source of her prescriptions. The Philadelphia Medical 
Examiner's Office provided DEA investigators 31 prescription bottles 
recovered from S.K.'s residence. All of their labels indicated they 
were prescribed by Dr. Smith and the majority was for schedule II and 
IV controlled substances.
    On May 20, 2004, a Confidential Source (CS) was provided $400.00 to 
purchase fraudulent prescriptions written by Dr. Smith. The CS used 
that money to obtain twelve separate prescriptions from an individual 
who, in turn, had received them from Dr. Smith.
    On May 27, 2004, Diversion Investigators interviewed ``J.G.'' who, 
for six or eight months, had been seeing Dr. Smith on a weekly basis. 
J.G. would give Dr. Smith a list of fictitious names and types of 
controlled substances he desired and Dr. Smith would issue three 
prescriptions under each name, usually for Percocet, OxyContin and 
Xanax. Dr. Smith issued between nine and fifteen fraudulent 
prescriptions for controlled substances per visit and received $100.00 
for each set of three prescriptions. J.G. then sold the prescriptions 
to a third party who, in turn, sold the drugs on the street. Dr. Smith 
was aware of and knowingly participated in this scheme.
    On June 1, 17 and 19, 2004, a CS visited Dr. Smith's medical 
office. On each occasion, he obtained fraudulent prescriptions for 
Xanax, OxyContin and Percocet, paying Dr. Smith $500.00 for fifteen 
prescriptions, written under five different fraudulent identities.
    On June 29, 2004, Diversion Investigators were contacted by Family 
Meds, a mail order pharmacy in Connecticut. On June 22, 2004, the 
pharmacy received five prescriptions for controlled substances written 
by Dr. Smith for ``M.B.'' Family Meds had contacted Dr. Smith, who 
verified issuing the prescriptions. However, the pharmacy ultimately 
refused to fill them and verified that on June 6, 2004, M.B. had filled 
identical prescriptions issued by Dr. Smith at another pharmacy.
    A review of reports from the Pennsylvania Attorney General's 
Office, Bureau of Narcotics Investigation and Drug Control showed that 
from January 14, 2002, to April 30, 2004, Dr. Smith issued over 6,500 
prescriptions for schedule II narcotic controlled substances. These 
prescriptions constituted a significant portion of the total schedule 
II prescriptions filled in the Philadelphia and New Jersey area.
    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 
pending applications for renewal of such registration, if she 
determines that the continued registration would be inconsistent with 
the public interest. Section 823(f) requires that the following factors 
be considered 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, and 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 considered in the disjunctive; the Deputy 
Administrator may rely on any one or a combination of factors and may 
give each factor the weight she deems appropriate in determining 
whether a registration should be revoked or an application for 
registration denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16,422 
(1989).
    As to factor one, the recommendation of the appropriation state 
licensing board or professional disciplinary authority, there is no 
evidence in the investigative file that the State of Pennsylvania has 
yet taken adverse action against Dr. Smith's medical license. However, 
``inasmuch as State licensure is a necessary but not sufficient 
condition for a DEA registration* * * this factor is not dispositive.'' 
See Edson W. Redard, M.D., 65 FR 30,616, 30,619 (2000).
    With regard to factors two and four, Respondent's experience in 
handling controlled substances and his compliance with applicable 
controlled substance laws, the investigative file contains overwhelming 
evidence that Dr. Smith unlawfully prescribed and diverted controlled 
substances over an extensive period of time. He knowingly prescribed 
controlled substances to individuals without bona fide doctor-patient 
relationships and issued fraudulent prescriptions destined to feed the 
recipient's personal addiction or to be sold on the street. He did so 
in a calculated manner, for financial gain, violating multiple state 
and federal laws and abysmally failing to meet the rudimentary 
responsibilities of a physician and registrant. Thus, factors two and 
four weigh in favor of a finding that continued registration would be 
inconsistent with the public interest.
    Factor three, the applicant's conviction record under Federal or 
state laws relating to the manufacture, distribution, or dispensing of 
controlled substances, is not relevant for consideration, as there is 
no evidence Dr. Smith has yet been convicted of any

[[Page 33209]]

crime related to controlled substances. However, it is noted the 
investigation has been provided to Federal authorities for possible 
initiation of criminal charges.
    With respect to factor five, other conduct that may threaten the 
public health and safety, Respondent's actions discussed above are also 
relevant under this factor. The Deputy Administrator is particularly 
troubled by Dr. Smith's efforts to enrich himself at the expense of the 
public health and safety. Not only has a large quantity of controlled 
substances been diverted over an extensive period of time as a result 
of his illegal activities, at least one patient has died of a drug 
overdose after taken medications prescribed by Dr. Smith.
    The exact degree of suffering and costs, both social and economic, 
stemming from Dr. Smith's activities will never be known. Suffice it to 
say, his unprofessional and criminal conduct has resulted in the 
diversion of large quantities of controlled substances in the 
Philadelphia area for a lengthy period of time, with correspondingly 
severe consequences for public health and safety.
    In sum, Dr. Smith's cavalier disregard for the law and abandonment 
of his responsibilities as a physician and registrant cannot be 
tolerated. They weigh, irresistibly, in favor of a finding that 
continued registration would not be in the public interest.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in her by 21 U.S.C. 
823 and 28 CFR 0.100(b), and 0.104, hereby orders that DEA Certificate 
of Registration AS6932669, issued to Robert A. Smith, M.D., be, and it 
hereby is, revoked. The Deputy Administrator further orders that any 
pending applications for renewal or modification of such registration 
be, and they hereby are, denied. This order is effective July 7, 2005.

    Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-11250 Filed 6-6-05; 8:45 am]
BILLING CODE 4410-09-M