[Federal Register Volume 73, Number 135 (Monday, July 14, 2008)]
[Notices]
[Pages 40378-40380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15923]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Randall Relyea, D.O.; Denial of Application

    On July 25, 2007, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Randall Relyea, D.O. (Respondent), of Price, Utah. The 
Show Cause Order proposed the revocation of Respondent's DEA 
Certificate of Registration, BR8899809, as a practitioner, on the 
ground that Respondent's ``continued registration is inconsistent with 
the public interest.'' Show Cause Order at 1.
    The Show Cause Order specifically alleged that in February 2007, 
Respondent had engaged in a scheme to have one of his patients obtain 
narcotic controlled substances for his personal use. Show Cause Order 
at 1. The Show Cause Order also alleged that during the previous year, 
Respondent had engaged in ``a similar scheme * * * to acquire 
narcotics,'' and that Respondent had been charged with multiple felony 
narcotics offenses under Utah law with respect to both schemes. Id.
    The Show Cause Order further alleged that in 1999, Respondent had 
been ``charged with felonies [under Missouri law] involving [his] 
obtaining hydrocodone under a fictitious name.'' Id. The Show Cause 
Order alleged that while these charges were later reduced to 
misdemeanors and that Respondent had surrendered his DEA registration, 
he had ``continued to abuse narcotics at levels indicating recurrent or 
habitual use.'' Id.
    The Show Cause Order, which notified Respondent of his right to a 
hearing or to submit a statement in lieu of a hearing, was served on 
him by certified mail to his registered location as evidenced by the 
signed return receipt card.\1\ Since that time, neither Respondent nor 
his counsel has requested a hearing on the allegations of the Show 
Cause Order. Because more than thirty days have passed since service of 
the Show Cause Order and neither Respondent nor his counsel has 
requested a hearing, I conclude that Respondent has waived his right to 
a hearing. See 21 CFR 1301.43(d). I therefore issue this Decision and 
Final Order without a hearing based on relevant material contained in 
the investigative file and make the following findings.
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    \1\ The Return Receipt Card does not indicate the date of 
delivery. The card does, however, indicate that DEA received the 
card back on August 13, 2007.
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Findings

    Respondent was the holder of DEA Certificate of Registration, 
BR8899809, which authorized him to handle controlled 
substances in schedules II through V as a practitioner. Respondent's 
registration expired on April 30, 2007, and Respondent did not file a 
renewal application until May 30, 2007. I thus find that Respondent did 
not file a timely renewal application as required to maintain his 
registration and thus does not have a current registration with the 
Agency. See 5 U.S.C. 558(c). Respondent's renewal application is, 
however, pending before the Agency.
    Respondent previously held another DEA registration. In December 
1999, however, Respondent was arrested in Brentwood, Missouri, and 
charged with fraudulently attempting to obtain Vicodin Tuss, a schedule 
III controlled substance which contains hydrocodone. Respondent was 
allowed to plead guilty to the misdemeanor charge of engaging in 
deceptive business practices and received a suspended sentence. On 
November 22, 2000, Respondent also surrendered his DEA registration.\2\
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    \2\ On May 22, 2004, Respondent applied for a new registration. 
On his application, Respondent disclosed the criminal proceeding, 
his prior drug abuse, and that he had surrendered his earlier 
registration. Respondent also stated that he had completed inpatient 
rehab and a four-year monitoring program. Upon determining that the 
State of Utah has issued Respondent both a medical license and a 
controlled substance license, Respondent was granted a new 
registration.
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    According to the investigative file, at approximately 1 p.m. on 
February 8, 2007, Respondent contacted one of his patients and asked 
her to assist him in obtaining a narcotic controlled substance for his 
wife, who he claimed had torn her anterior cruciate ligament (ACL). 
Respondent asserted that other area physicians were out to get him and 
that he therefore needed to write the prescription in the patient's 
name. Several hours later, Respondent met with the patient at her place 
of employment (an Albertson's supermarket) and gave her a prescription 
for 90 pills of oxycodone 30 mg and $100 to pay for the prescription.
    Later that evening, Respondent returned to the supermarket to 
obtain the prescription. The patient told

[[Page 40379]]

Respondent that she did not like the situation and was scared. 
Respondent told her that nothing would happen. The patient then gave 
the oxycodone and $94 to Respondent. The patient again told Respondent 
that she did not feel the situation was right; Respondent told her 
``nothing happened.'' After a brief conversation, Respondent left.
    Nine days later, another police officer received information 
regarding a July 2006 incident involving Respondent and another of his 
patients. According to the investigative file, Respondent had performed 
shoulder surgery on this patient and issued her a prescription for 60 
pills of Percocet 10/650, a schedule II controlled substance which 
contains oxycodone. When the patient became ill taking the Percocet, 
she saw Respondent to get a prescription for a different drug.
    During this visit, Respondent told the patient that the pharmacy 
had given her the wrong pills. Respondent took the Percocet from the 
patient and gave her a new prescription for a smaller dose.
    Subsequently, the patient asked the pharmacy about the alleged 
error in the prescription. The pharmacy told her that the error was on 
Respondent's part. The pharmacy also told her that the Percocet should 
have been returned to the pharmacy and that the return should have been 
documented. The pharmacy, however, had no documentation of the Percocet 
having been returned.
    Moreover, according to the investigative file, on two separate 
dates in December 2006, Respondent induced a physician's assistant (PA) 
student to fill prescriptions for 90 tablets of oxycodone (30 mg) and 
120 tablets of oxycodone (30 mg). Respondent wrote the first 
prescription in his wife's name and represented to the student that his 
wife had dislocated her patella tendon. The student filled the 
prescription and gave it to Respondent.
    The second incident occurred on the last day of the student's 
rotation. During a conversation in which Respondent and the student 
discussed the possibility of his employing her, Respondent wrote out a 
prescription and gave it to the student. Upon seeing the prescription, 
the student remarked ``Oxycodone?'' Respondent told the student to 
``chill out'' because it was Percocet with Tylenol. The student then 
commented about the 30 mg strength of the pills; Respondent stated: 
``you'd think if you double the strength you get double the effect, but 
that isn't the case at all.'' When the student also commented about the 
number of pills (120), Respondent stated that ``it would last him all 
year.'' The student proceeded to fill the prescription and provided the 
oxycodone to Respondent.
    In late February 2007, Respondent approached another PA student 
stating that his wife had injured her ACL, and that he was trying to 
get her in to see a physician. Over the next several days, Respondent 
kept telling the student that his wife was in pain and that he was 
frustrated because he had forgotten to ask one of his colleagues to 
write a prescription. Respondent also stated that because of bad 
feelings, he did not believe that other physicians would write his wife 
a prescription for a pain medication. Respondent eventually induced the 
student to fill a prescription for 60 tablets of oxycodone (30 mg).
    Local law enforcement subsequently interviewed a nurse who worked 
in the recovery room at a hospital where Respondent performed 
surgeries. In late July 2006, Respondent approached her, represented 
that he had severe knee pain, and asked her to fill a prescription for 
Percocet. The nurse agreed. Respondent wrote the prescription, which 
was for 90 tablets of Percocet (10 mg), in her name. The nurse filled 
the prescription and provided the drugs to Respondent.
    Over the ensuing seven months, Respondent used additional scams to 
induce her to fill prescriptions for him such as stating that he had 
back pain, and that his wife had torn her ACL and that he could not 
find a doctor to perform surgery on her. On other occasions, Respondent 
told the nurse that he had wrecked his vehicle and could barely walk. 
He also told her that his wife's prescription had been stolen or lost 
down the drain.
    Using this person, Respondent obtained a total of fifteen 
prescriptions for either Percocet (10 mg) or Oxycodone (30 mg).\3\ The 
size of the prescriptions was either 90 or 120 tablets.
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    \3\ In one instance, the strength of the Oxycodone was 15 mg.
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    On March 14, 2007, Respondent was arrested. Thereafter, on May 9, 
2007, the Carbon County Attorney filed six informations against 
Respondent. As relevant here, the County Attorney charged Respondent 
with numerous counts of distributing or arranging the distribution of a 
controlled substance, a felony offense under Utah law. See Utah Code 
Ann. Sec.  58-37-8(1)(a)(ii). The state criminal proceedings remain 
pending as of the date of this Order.\4\
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    \4\ The investigative file also includes a copy of the report of 
a random drug test performed on Respondent on March 28, 2006. 
According to the report, Respondent tested positive for both 
hydrocodone and oxycodone; the levels of both drugs exceeded 5000 
ng./ml. A document, which is dated March 30, 2007, and which is 
attached to the report states: ``excessively high quantitative 
random urine values do not reflect one time use, occasional use, or 
one time therapeutic use. Such values are consistent with long 
standing use and habituation.'' While the investigative file 
establishes that these documents were provided by a hospital where 
Respondent performed surgeries, the file does not establish the 
source of the statement. Accordingly, while I accept the results of 
the drug test, which showed that both hydrocodone and oxycodone were 
present in Respondent, I do not rely on the statement as to what the 
quantitative values establish.
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Discussion

    Section 303(f) of the Controlled Substances Act provides that 
``[t]he Attorney General may deny an application for [a practitioner's] 
registration if he determines that the issuance of such registration 
would be inconsistent with the public interest.'' 21 U.S.C. Sec.  
823(f). In making the public interest determination, the Act requires 
the consideration of the following factors:
    (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 M.D., 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 a registration should be revoked.'' 
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).
    Having considered the entire record and all of the factors, I 
conclude that Respondent's experience in dispensing controlled 
substances (factor two) and his record of non-compliance with 
applicable Federal law (factor four) demonstrate that granting 
Respondent's application for a new registration would be ``inconsistent 
with the public interest.'' 21 U.S.C. 823(f).\5\ Accordingly, 
Respondent's application will be denied.
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    \5\ In light of my findings with respect to factors two and 
four, I conclude that it is unnecessary to make findings with 
respect to the remaining factors.
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    Respondent's experience in dispensing controlled substances is

[[Page 40380]]

characterized by his criminal behavior in issuing numerous fraudulent 
prescriptions for such highly abused controlled substances as oxycodone 
and Percocet. While the record contains no information as to whether 
under Utah law and regulations, a physician can ever lawfully prescribe 
a controlled substance to a family member or himself, it is clear that 
Respondent issued numerous fraudulent prescriptions because the 
prescriptions were written in the names of persons who had no medical 
need for the controlled substance, and who were, after filling the 
prescription, to turn the drugs over to him.
    Moreover, the stories that Respondent told to induce others to 
assist him were so implausible (e.g., that no doctor would write a 
prescription for, or perform surgery on, his wife) or were consistent 
with classic scams engaged in by persons who seek controlled substances 
for illicit purposes (e.g., that his wife's prescription had been 
stolen or lost down the drain), that it is clear that the prescriptions 
were written with fraudulent intent. See Randi M. Germaine, 72 FR 
51665, 61666 (2007) (noting expert testimony regarding use of scams by 
drug abusers seeking additional drugs such as early refill attempts and 
claiming that one's drugs have been stolen).
    This conduct violated Federal law. See 21 U.S.C. 843(a)(3) 
(rendering it ``unlawful for any person knowingly or intentionally * * 
* to acquire or obtain possession of a controlled substance by 
misrepresentation, fraud, forgery, deception, or subterfuge''); id. 
Sec.  844(a) (``It shall be unlawful for any person knowingly or 
intentionally to possess a controlled substance unless such substance 
was obtained directly, or pursuant to a valid prescription or order 
from a practitioner, while acting in the course of his professional 
practice, or except as otherwise authorized by this subchapter * * 
*.''). Indeed, it is particularly disturbing that Respondent was aided 
in his schemes by several health care professionals.
    There is also substantial evidence that Respondent was personally 
abusing the drugs he obtained through his various schemes. The 
urinalysis results indicated that Respondent was using both hydrocodone 
and oxycodone. Moreover, when one of the PA students commented about 
his seeking oxycodone, Respondent told her to ``chill out,'' because it 
was Percocet with Tylenol. Moreover, when the student commented about 
the strength of the pills, Respondent stated that ``you'd think if you 
double the strength you get double effect, but that isn't the case,'' 
and also said that the 120 pills ``would last him all year.'' It is 
thus clear that Respondent was once again abusing controlled 
substances.
    Respondent's experience in dispensing controlled substances and his 
record of non-compliance with Federal controlled substance laws is thus 
characterized by his issuance of numerous fraudulent prescriptions and 
his personal abuse of controlled substances. These findings amply 
demonstrate that Respondent cannot be entrusted with a new registration 
and that granting his application would be ``inconsistent with the 
public interest.'' 21 U.S.C. 823(f).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well 
as 28 CFR 0.100(b) & 0.104, I order that the application of Randall 
Relyea, D.O., for a DEA Certificate of Registration as a practitioner 
be, and it hereby is, denied. This order is effective August 13, 2008.

    Dated: June 27, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-15923 Filed 7-11-08; 8:45 am]
BILLING CODE 4410-09-P