[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Notices]
[Pages 60922-60930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25238]


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 DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 10-77]


Kimberly Maloney, N.P.; Decision and Order

    On February 4, 2011, Administrative Law Judge Timothy D. Wing 
issued the attached recommended decision. Neither party filed 
exceptions to the decision.
    Having reviewed the entire record, I have decided to adopt the 
ALJ's ruling, findings of fact, conclusions of law (except as explained 
below), and recommended order. Accordingly, Respondent's application 
for a registration will be granted subject to a condition.
    In his discussion of factor three--Respondent's ``conviction record 
under Federal or State laws relating to the manufacture, distribution, 
or dispensing of controlled substances,'' 21 U.S.C. 823(f)--the ALJ 
found that she had pled guilty to a felony count of obtaining a 
narcotic drug by means of a forged prescription in violation of Cal. 
Health & Safety Code Sec.  11368. ALJ at 15-16.\1\ However, pursuant to 
Cal. Penal Code Sec.  1000.1, Respondent was allowed to participate in 
the deferred entry of judgment program, GX 10, and upon her successful 
completion of treatment, her guilty plea was set aside and the charge 
was dismissed. GX 11.
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    \1\ All citations to the ALJ's decision are to the slip opinion 
as issued by him.
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    Noting that California law provides that ``[a] defendant's plea of 
guilty pursuant to this chapter shall not constitute a conviction for 
any purpose unless a judgment of guilty is entered pursuant to'' Cal 
Penal Code Sec.  1000.3, and that Agency precedent holds that a 
deferred adjudication is nonetheless a conviction for purposes of the 
CSA, the ALJ explained that ``the fact that a finding of guilt was 
specifically not entered as to Respondent and the charges dismissed, 
leaves open the question as to whether Respondent's plea constitutes a 
conviction under 21 U.S.C. 823(f).'' ALJ at 17. The ALJ deemed it 
unnecessary to reach the issue, however, reasoning that the offense 
committed by Respondent ``does not `relate[] to the manufacture, 
distribution, or dispensing of controlled substances,' the standard 
embraced in'' 21 U.S.C. 823(f)(3). Id. (citing Super-Rite Drugs, 56 FR 
46014 (1995)).
    Contrary to the ALJ's understanding, the Agency has long since 
resolved both issues. In Edson W. Redard, 65 FR 30616 (2000), a 
practitioner, who was charged with three felony counts of obtaining and 
attempting to obtain hydrocodone by fraud under California law, pled 
nolo contendere to a single count and was allowed to participate in the 
State's deferred entry of judgment program (the same statutory scheme 
at issue here), which he successfully completed. Id. at 30617-18. 
Thereupon, the state court granted deferred entry of judgment and the 
charges were dismissed. Id. at 30618.
    Thereafter, the Agency proposed the revocation of the 
practitioner's registration on the ground that he had been convicted of 
a felony offense relating to controlled substances under state or 
Federal law. Id. (citing 21 U.S.C. 824(a)(2)). In opposition, the 
practitioner argued that he had not been ``convicted of a felony 
offense [because] no judgment was entered against him and the criminal 
proceedings were dismissed.'' Id.
    The Agency rejected the practitioner's argument, explaining that 
``there is still a `conviction' within the meaning of the Controlled 
Substances Act even if the proceedings are later dismissed. * * * [A]ny 
other interpretation would mean that the conviction could only be 
considered between its date and the date of its subsequent dismissal.'' 
Id. (int. quotations omitted). The Agency thus held that the 
practitioner had ``been convicted of a felony relating to controlled 
substances'' and that this was ground to revoke his registration under 
21 U.S.C. 824(a)(2). Id.
    In Harlan J. Borcherding, 60 FR 28796 (1995), a practitioner who 
had been indicted under Texas law on three counts of prescribing a 
controlled substance ``without a valid medical purpose,'' was allowed 
to plead guilty to a single misdemeanor count and was placed on 
probation; following the practitioner's completion of his probation, 
the proceeding was dismissed without an adjudication of guilt. Id. at 
28797. While the practitioner argued ``that he had not been `convicted' 
of any offense within the meaning of 21 U.S.C. 823(f)(3),'' the Agency 
rejected the argument, holding that ``[t]he law is well settled that a 
DEA registrant may be found to have been `convicted' within the meaning 
of the Controlled Substances Act, despite a deferred adjudication of 
guilt.'' Id. (citations omitted).
    More recently, in Pamela Monterosso, 73 FR 11146, 11148 (2008), a 
case in which an applicant pled guilty to a state law controlled 
substance offense but was granted probation before judgment and the 
charge was dismissed, I explained that ``DEA has long taken the view 
that even when a court withholds adjudication and ultimately dismisses 
the charge after the completion of probation, the proceeding is still a 
conviction within the meaning of the Controlled Substances Act.'' See 
also Thomas G. Easter II, 69 FR 5579, 5580-81 (2004) (``DEA has 
consistently held that a deferred adjudication of guilt following a 
guilty plea, is a conviction within the meaning of the Controlled 
Substances Act.''); Clinton D. Nutt, 55 FR 30992 (1990); Eric A. Baum, 
53 FR 47272 (1988); Stanley Granet Rosen, 50 FR 46844 (1985).
    Moreover, the Superior Court form evidencing Respondent's guilty 
plea includes the ``Court's Finding And Order.'' GX 9, at 3. This 
section of the form concludes by stating: ``The Court accepts the 
defendant's plea and admissions, and the defendant is convicted 
thereby.'' Id. For purposes of the CSA, including whether this action 
must be disclosed on an application for registration and whether it 
provides ground to deny an application or revoke a registration, see 21 
U.S.C. 824(a)(1) & (2), Respondent's plea and the Superior Court's 
finding constitutes a conviction notwithstanding that her plea was 
eventually set aside and the charge dismissed.
    As discussed above, the ALJ also concluded that Respondent's 
offense of obtaining a prescription for a controlled

[[Page 60923]]

substance by fraud ``does not relate to the manufacture, distribution, 
or dispensing of controlled substances.'' ALJ at 17 (quoting 21 U.S.C. 
823(f) and citing Super-Rite Drugs, 56 FR 46014, 46015 (1991)). 
However, the underlying offense at issue in Super-Rite Drugs was a 
state law offense of possession of cocaine and not possession with 
intent to distribute. See 56 FR at 46014. The case thus does not stand 
for the proposition cited by the ALJ.\2\
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    \2\ It is acknowledged that there are a number of older cases 
which held that convictions for the offense of simple possession of 
a controlled substance could be considered under factor three. 
However, in Alvin Darby, 75 FR 26993, 27000 (2009), I explained that 
a conviction for simple possession does not fall within factor 
three. However, as I also noted in Darby, such a conviction can be 
considered under factor five. Id.
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    Most significantly, in several cases, the Agency has held that the 
offense of obtaining controlled substances by using fraudulent 
prescriptions constitutes an offense related to the manufacture, 
distribution, or dispensing of controlled substances within the meaning 
of factor three. See Redard, 65 FR at 30619 (practitioner obtained 
controlled substances by issuing fraudulent prescriptions); Ronald D. 
Springel, 62 FR 67092, 67094 (1997) (holding that conviction for 
federal offense ``of obtaining a controlled substance by fraud'' was 
actionable under factor three); Rick's Pharmacy, Inc., 62 FR 42595, 
42597 (1997) (same); Ronald Phillips, 61 FR 15304, 15305-06 (1996) 
(same). Forging a prescription to obtain a controlled substance clearly 
relates to the ``distribution[] or dispensing of controlled 
substances,'' 21 U.S.C. 823(f)(3), whether the practitioner wrote the 
prescriptions on her own pad, or, as here, stole prescriptions from 
another practitioner's pad.
    However, aside from the ALJ's analysis of factor three, I agree 
with the ALJ's findings as to the remaining factors. Moreover, I agree 
with the ALJ that Respondent has ``credibly'' accepted responsibility 
for her misconduct and that she has put forward compelling and 
unrebutted evidence of her rehabilitation, thus demonstrating that 
``she will not engage in future misconduct.'' ALJ at 22. Because there 
is no evidence that Respondent harmed others or diverted the drugs she 
illegally obtained, and this episode is, in essence, a first offense, I 
conclude that consideration of the Agency's interest in deterrence is 
not warranted. Accordingly I will adopt the ALJ's recommended order and 
grant Respondent's application for registration subject to the 
following condition.
    (1) Any violation of either condition 13 or 14 of the California 
Board of Registered Nursing's Order shall be deemed an act inconsistent 
with the public interest and subject her registration to proceedings 
under 21 U.S.C. 824(a).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 
CFR 0.100(b), I order that the application of Kimberly Maloney, N.P., 
for a DEA Certificate of Registration as a mid-level practitioner be, 
and it hereby is, granted. This Order is effective immediately.

    Dated: September 19, 2011.
Michele M. Leonhart,
Administrator.

Paul E. Soeffing, Esq., for the Government.
Kimberly Maloney, N.P., Pro Se, for the Respondent.

Recommended Ruling, Findings of Fact, Conclusions of Law and Decision 
of the Administrative Law Judge

Introduction

    Timothy D. Wing, Administrative Law Judge. This proceeding is an 
adjudication pursuant to the Administrative Procedure Act (APA), 5 
U.S.C. 551 et seq., to determine whether the Drug Enforcement 
Administration (DEA) should deny a nurse practitioner's application for 
a Certificate of Registration (COR) as a mid-level \1\ practitioner. 
Without this registration the nurse practitioner, Kimberly Maloney, 
N.P. (Respondent), of Chula Vista, California, will be unable to 
lawfully handle controlled substances in the course of her practice.
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    \1\ See 21 CFR 1300.01(b)(28) (2010).
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    On September 10, 2010, the DEA Deputy Assistant Administrator, 
Office of Diversion Control, issued an Order to Show Cause \2\ (OSC) to 
Respondent, giving Respondent an opportunity to show cause why the DEA 
should not deny her application for a DEA COR, assigned Control No. 
W09131151M, pursuant to 21 U.S.C. 824(a)(4), and deny any other pending 
applications for a DEA COR, alleging that Respondent's registration 
would be inconsistent with the public interest, as that term is defined 
in 21 U.S.C. 823(f).
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    \2\ ALJ Ex. 1.
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    In substance, the OSC alleges that:

    1. On February 18, 2009, Respondent applied for a DEA COR 
(Control No. W09131151M) as a mid-level practitioner in Schedules II 
through V with a registered address of 3855 Health Sciences Drive, 
La Jolla, CA 92093-9191 and a mailing address of 1503 Apache Drive, 
Unit A, Chula Vista, CA 81910;
    2. In a letter dated April 3, 2009, Respondent requested that 
the registered address for her application be changed to eStudysite, 
452 Medical Center Court, Chula Vista, CA 91911;
    3. In 2006, Respondent forged prescriptions on a doctor's 
prescription pad for Actiq (fentanyl) and OxyContin (oxycodone), 
both Schedule II controlled substances, to support a drug habit for 
Respondent. Respondent injected herself with Actiq after dissolving 
it in saline. Respondent used her health insurance to pay for these 
forged prescriptions;
    4. On January 19, 2007, the San Diego District Attorney's Office 
filed a felony complaint against Respondent for violations of Cal. 
Health & Safety Code Sec.  11173(a) (obtaining prescriptions by 
fraud or deceit) and Cal. Penal Code Sec.  459 (burglary). On April 
17, 2007, Respondent pleaded guilty to a felony count of obtaining a 
narcotic drug (OxyContin) by means of a forged prescription, in 
violation of California Health & Safety Code Sec.  11368. The court 
deferred entry of judgment for eighteen months and ordered 
Respondent to enroll in and complete a California Penal Code Sec.  
1000 drug treatment program;
    5. On December 21, 2006, Respondent began the McDonald Center 
Intensive Outpatient Alcohol and Drug Rehabilitation Program a 
seven-week, three-nights-per-week program. Respondent completed this 
program on February 8, 2007. Subsequently, Respondent enrolled in 
Scripps McDonald Center's Chemical Dependency Aftercare program, a 
one-year, one-night-per-week program. Respondent completed this 
program on February 7, 2008. On October 22, 2008, the court 
dismissed the felony criminal complaint against Respondent; and
    6. On July 31, 2009, the California Board of Nursing filed an 
Accusation against Respondent alleging unprofessional conduct for 
possession of controlled substances without a prescription and 
unprofessional conduct for use of a controlled substance. The 
administrative adjudication of the Accusation is ongoing.\3\

    \3\ Respondent's post-hearing brief, filed on January 25, 2011, 
indicates that the California Board of Registered Nursing (BRN) 
adopted the proposed decision of the California Administrative Law 
Judge (ALJ) on December 28, 2010, and notes that the BRN took the 
extraordinary step of reducing Respondent's period of probation to 
one year and cost recovery to zero. The Government filed with its 
post-hearing brief a December 28, 2010 Order of the BRN entitled 
``Decision After Non-Adoption,'' of which I take official notice. 
(See Gov't Br. at Gov't Ex. 17.) Under the APA, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' U.S. Dept. of Justice, Attorney General's Manual 
on the Administrative Procedure Act 80 (1947) (Wm. W. Gaunt & Sons, 
Inc., Reprint 1979). In accordance with the APA and DEA's 
regulations, Respondent is ``entitled on timely request, to an 
opportunity to show to the contrary.'' 5 U.S.C. 556(e); 21 CFR 
1316.59(e) (2010); see, e.g., R & M Sales Co., 75 FR 78,734, 78,736 
n.7 (DEA 2010). Respondent can dispute the facts of which I take 
official notice by filing a properly supported motion for 
reconsideration within twenty days of service of this Recommended 
Decision, which shall begin on the date it is mailed. See, e.g., 
Joseph Gaudio, M.D., 74 FR 10,083, 10,088 (DEA 2009) (granting 
respondent opportunity to dispute officially noticed facts within 
fifteen days of service).

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[[Page 60924]]

    Respondent, appearing pro se, timely requested a hearing on the 
allegations in the OSC. Following prehearing procedures, a hearing was 
held in San Diego, California, on December 14, 2010, with the 
Government represented by counsel and Respondent appearing pro se. 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. All of the evidence and post-
hearing submissions have been considered, and to the extent the 
parties' proposed findings of fact have been adopted, they are 
substantively incorporated into those set forth below.

Issue

    Whether the record establishes by substantial evidence that 
Respondent's application for a DEA COR, Control Number W09131151M, as a 
mid-level practitioner, should be denied pursuant to 21 U.S.C. 823(f) 
and 824(a)(4), because Respondent's registration would be inconsistent 
with the public interest as that term is used in 21 U.S.C. 823(f).

Evidence and Incorporated Findings of Fact

I. Background

    The parties stipulated as fact the allegations contained within the 
OSC. (Tr. 17.) Additionally, at hearing the parties stipulated to the 
admission and consideration of Government Exhibits 1-16 and Respondent 
Exhibits 1-8. (Tr. 16.)
    Respondent's education includes: A 1992 Bachelor of Science degree 
in Biology from San Diego State University, a 1995 Bachelor of Science 
degree in nursing from San Diego State University and a 2000 Masters of 
Science/Nurse Practitioner Critical Care degree from the University of 
Pennsylvania. (Resp't Ex. 2.) Additionally, Respondent's professional 
experience between August 2000 and November 2006 includes work as a 
nurse practitioner in various medical settings to include neurosurgical 
patient care, neuro-radiology and a trauma department. (Id.) 
Respondent's professional experience between August 2007 and October 
2009 includes work as a lecturer, bone marrow transplant patient care, 
and care of patients involved in various research studies. (Id.) More 
recently, Respondent has stopped seeking employment pending final 
resolution of her application for a DEA COR, explaining that most ``of 
the positions I have sought require a DEA certificate or else 
eligibility within a year.'' (Tr. 54-55.)

II. The Investigation of Respondent

    At hearing, the Government presented the testimony of two 
witnesses: DEA Diversion Investigator Lucia Bartolomeo (DI Bartolomeo) 
and DEA Diversion Investigator Ayoma Rudy (DI Rudy). DI Bartolomeo 
credibly testified in substance that she has been a diversion 
investigator with DEA for approximately twenty-two years and has been 
assigned during that time to the DEA San Diego Field Division. (Tr. 
21.) DI Bartolomeo's education and training includes basic diversion 
investigator training along with a Bachelor of Science degree. (Tr. 
21.) DI Bartolomeo began an investigation of Respondent in 2006 after 
receiving an investigative lead that Respondent was in possession of a 
prescription pad, not her own, and possibly forging controlled 
substance prescriptions to obtain oxycodone and fentanyl for herself. 
(Tr. 22.)
    The evidence further included two California Controlled Substance 
Utilization Review and Evaluation System (CURES) patient activity 
reports for Respondent, obtained by DI Bartolomeo as part of her 
investigation of Respondent. (Gov't Ex. 3; Tr. 22.) The first CURES 
report covers the time period from September 2003 to October 2006 and 
the second from December 2006 to April 2007. (Gov't Ex. 3.) The first 
report reflects numerous prescriptions for oxycodone and Actiq, the 
brand name for fentanyl; in the majority of instances the pharmacy 
listed is Bonita Pharmacy. (Id.) DI Bartolomeo further testified to 
obtaining prescriptions from Bonita Pharmacy in Respondent's name, many 
of which had been issued in the name of Dr. [JR]; DI Bartolomeo noted 
discrepancies to include sequential serial numbers and inconsistent 
hand writing. (Tr. 24-26.) DI Bartolomeo also testified to meeting with 
Dr. [JR], who confirmed that ``many of the prescriptions were not his 
true signature.'' (Tr. 26.)
    DI Bartolomeo testified that she met with Respondent on December 
18, 2006, and Respondent admitted to forging prescriptions and 
identified nine prescriptions that she forged. (Tr. 27; see Gov't Ex. 2 
at 9, 14, 16, 18, 20, 22, 24, 26 & 28.) DI Bartolomeo explained that 
Respondent admitted ``[t]hat she had forged those prescriptions in 
order to obtain Actiq and some oxycodone, and she explained that she 
wasn't getting additional prescriptions from her physician. So that's 
why she had done this activity.'' (Tr. 29.)
    Documentary evidence submitted by the Government also included a 
July 31, 2009 Accusation filed by the California BRN, alleging four 
causes of discipline against Respondent for unprofessional conduct, 
specifically: ``Possession of Controlled Substances Without a 
Prescription''; ``Use of a Controlled Substance''; ``Prescription 
Forgery''; and Violation of the Nursing Practice Act.'' (Gov't Ex. 13.) 
The Accusation states in relevant part that

[o]n or about December 18, 2006, an RxNET agent interviewed 
Respondent at the San Diego Bureau of Narcotics Enforcement office. 
Respondent initially denied forging any prescriptions, but 
eventually admitted that she had stolen Dr. [JR]'s prescription pad 
from his La Jolla office. Respondent stated that she forged 
prescriptions for Oxycontin and Actiq to administer to herself for 
migraine headaches. Respondent further admitted that she would 
dissolve the Actiq in a saline solution and inject herself with it.

    (Id. at 6.)

    On April 1, 2007, Respondent voluntarily surrendered her DEA COR 
``while in treatment for substance abuse.'' (Gov't Ex. 1 at 3.)
    DI Rudy credibly testified in substance that she has been assigned 
to the DEA San Diego Field Division as a diversion investigator since 
2005, and her education includes a Bachelor's degree in criminal 
justice. (Tr. 35.) DI Rudy testified that she became involved in the 
investigation of Respondent in February 2009 when Respondent applied 
for a DEA registration as a mid-level practitioner. (Tr. 36.) DI Rudy 
further testified that at the time of application, Respondent was 
exempt from payment of an application fee because Respondent's proposed 
registered location at that time was a state university. (Tr. 37-38, 
41; see Gov't Ex. 1.) Subsequent to Respondent's initial application, 
Respondent wrote a letter, dated April 3, 2009, requesting that DEA 
change the address of her intended registered location to a facility 
that is a non-exempt entity for purposes of registration fee. (Tr. 38; 
see Gov't Ex. 14.) DI Rudy further testified that there was no 
indication or implication that Respondent intended to avoid paying the 
application fee. (Tr. 41.)
    The Government's documentary evidence included a handwritten 
confession by Respondent dated December 18, 2006, describing several 
life stresses and admitting to taking ``the prescription pads because I 
was scared that my migraines were out of control, that I would need 
more medicine.

[[Page 60925]]

* * *'' (Gov't Ex. 4.) The Government also submitted as evidence three 
photographs (Gov't Ex. 5), which Respondent testified were taken on the 
day she met with DI Bartolomeo and another person (Tr. 60). Respondent 
speculated that investigators photographed her arm because ``they 
wanted to prove that I was a drug addict.'' (Tr. 61.) Respondent was 
candid: ``I'm not here to dispute the fact that I got addicted to 
drugs. I mean, I accept what happened, and I'm here to tell you what 
happened after that. So I don't dispute that they took pictures of me 
on that day.'' (Tr. 61.) No other testimony or evidence was offered 
with regard to the photographs.
    The record also contains a February 8, 2007 letter from the 
McDonald Center for Alcoholism and Drug Addiction Treatment, La Jolla, 
California (McDonald Center), certifying that Respondent successfully 
completed an intensive, seven-week outpatient alcohol and drug 
rehabilitation program on February 8, 2007, noting that Respondent 
``showed a high level of commitment to her sobriety * * * was a willing 
participant in all aspects of the program [and] completed all of her 
written assignments on time.'' (Gov't Ex. 6.) \4\ A February 7, 2008 
Chemical Dependency Aftercare Letter of Completion from the McDonald 
Center confirms that Respondent successfully completed fifty-two 
sessions required by its Nursing Diversion Program. (Gov't Ex. 7.) \5\ 
The letter also notes that Respondent ``met all requirements and 
expectations of the aftercare program. Her positive attitude and 
adherence to the Aftercare requirements have shown a concern and care 
for her continued recovery.'' (Gov't Ex. 7.)
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    \4\ Government Exhibit 6 duplicates Respondent Exhibit 7 at 3.
    \5\ Government Exhibit 7 duplicates Respondent Exhibit 7 at 4.
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    Finally, the record reveals that on January 19, 2007, the San Diego 
District Attorney's Office filed a felony complaint against Respondent 
for violations of Cal. Health & Safety Code Sec.  11173(a) (obtaining 
prescriptions by fraud or deceit) and Cal. Penal Code Sec.  459 
(burglary). (Gov't Ex. 8.) On April 17, 2007, Respondent pleaded guilty 
to a felony count of obtaining a narcotic drug (OxyContin) by means of 
a forged prescription, in violation of California Health & Safety Code 
Sec.  11368. (Gov't Ex. 9.) The court deferred entry of judgment for 
eighteen months and ordered Respondent to enroll in and complete a 
California Penal Code Sec.  1000 drug treatment program. (Gov't Ex. 
10.) On October 22, 2008, the court dismissed the felony criminal 
complaint against Respondent. (Gov't Exs. 11 & 12.)

III. Respondent's Evidence

    Respondent testified at hearing and also presented testimony from 
her father, Mr. William Mayer. Respondent credibly testified in 
substance that she became a registered nurse in 1995 and candidly 
admitted to the fact that she became addicted to prescription 
medications and was ``guilty of egregious behavior when I made 
unprofessional choices that led to my chemical dependence.'' (Tr. 44.)
    Respondent explained that in or about 1990 she began having 
migraine headaches ``and saw many health practitioners for this 
problem, and tried every therapy that was recommended.'' (Tr. 45.) In 
2000 her neurologist began prescribing different narcotic medications 
such as OxyContin, Vicodin, Actiq and Dilaudid for maintenance and 
rescue therapy. (Tr. 45.) Respondent stated the medications helped 
initially but did not resolve the migraine headaches, and she was 
prescribed more of the same narcotic or larger doses over time. (Tr. 
45-46.) Respondent also testified that she experienced a series of very 
difficult life events which increased her stress,\6\ and the migraine 
headaches grew worse. (See, e.g., Tr. 46.)
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    \6\ As the BRN succinctly summarized, Respondent ``was going 
through a tumultuous divorce, a death in the family, caring for her 
child, and she was the victim of criminal voyeurism.'' (Resp't Ex. 1 
at 3.)
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    Respondent next testified that she attempted to discuss her concern 
that she was becoming addicted to narcotics with her treating 
physician, but the physician did not believe that intervention was 
warranted. (Tr. 46.) Responded admitted that she ``eventually betrayed 
his trust'' by forging his name to acquire more narcotics, but that not 
``long after, I called a therapist I had recently been seeing, and told 
him what I had done, and asked for help.'' (Tr. 46.)
    Respondent testified that she started an outpatient drug treatment 
program on December 21, 2006, and completed the program on February 8, 
2007. (Tr. 46.) Thereafter, Respondent completed a year-long aftercare 
program running between February 8, 2007 and February 2008. (Tr. 46.) 
From April 2007 to February 2009, Respondent participated in the BRN 
Nursing Diversion Program, but was dismissed on the grounds that she 
``admitted a patient to the hospital ward, and the computer admission 
orders included orders for [o]xycodone.'' (Tr. 46-47.) Respondent was 
told that this was equivalent to dispensing oxycodone. (Tr. 47.) In 
mitigation, Respondent testified that ``I have not dispensed 
medications in over ten years, and the orders were part of a 
standardized set for all cancer patients.'' (Tr. 47.)
    With regard to the circumstances of Respondent's dismissal from the 
BRN Nursing Diversion Program, the evidence also included the following 
factual information:

    Respondent successfully participated in the Nursing Diversion 
Program for 22 months when she was asked to leave the program 
because of a technical violation of the Diversion Program's rules. 
While in the Diversion Program, respondent was working as a Nurse 
Practitioner in the bone marrow transplant unit at the University of 
California, San Diego (UCSD) Medical Center. When patients were 
admitted to the unit, respondent, using a preprogrammed computer 
check sheet, admitted the patients by checking the appropriate 
admission box that appeared on the computer screen. By checking the 
box, the computer program automatically issued a standard set of 
admission orders. In some instances, the set orders included an 
order for the patient to receive Oxycodone. Consequently, when the 
fact respondent had been ``prescribing'' Oxycodone came to the 
attention of the Diversion Program, respondent was asked to leave 
even though she had been in full compliance with the strict 
Diversion Program requirements, including: Calling every morning 
between 6 and 7 a.m.; taking random drug tests several times per 
month with no ``dirty'' tests; turning in monthly paperwork on time; 
attending AA and NA meetings five to seven days per week; attending 
weekly nurse-to-nurse meetings; completing 16 CEU's on substance 
abuse; calling monthly to check in with her case manager; and always 
getting permission before leaving San Diego.

(Resp't Ex. 1 at 4.)

    Respondent's father, Mr. Mayer, credibly testified in part and in 
substance that he is a retired Certified Public Accountant, and lives 
approximately three miles from Respondent, seeing her at least weekly. 
(Tr. 81.) Mr. Mayer testified to what he described as a ``double 
whammy'' inflicted on Respondent by her treating physician and two drug 
companies, explaining that Respondent's treating physician ``prescribed 
OxyContin and Actiq for [Respondent's] migraine headaches, although her 
stresses were far beyond migraine headaches at that time.'' (Tr. 70.) 
Mr. Mayer further explained that prescribing ``OxyContin, which was 
marketed as less addictive and less subject to abuse, when it was not, 
and Actiq, which the FDA had only approved for cancer patients'' in 
combination to treat Respondent's migraine headaches, significantly 
contributed to Respondent becoming

[[Page 60926]]

addicted. (Tr. 76-77.) Mr. Mayer also testified that Respondent has put 
the issues that contributed to her addiction behind her and has been 
drug free since her sobriety date of November 29, 2006.\7\ (Tr. 80.) In 
terms of Respondent's current state of mind regarding use of 
medications, Mr. Mayer testified to a February 2010 emergency room 
visit by Respondent for an acute illness causing pain during which 
Respondent refused to accept pain medication such as morphine or 
Dilaudid for fear of becoming addicted again. (Tr. 79.)
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    \7\ Although I find Mr. Mayer's testimony credible, I do note a 
disparity between the November 29, 2006 sobriety date he and others 
identified (see Tr. 80; see also Resp't Ex. 8 at 1), and DI 
Bartolomeo's testimony suggesting that Respondent forged a 
prescription as late as December 6, 2006 (Tr. 27; see Gov't Ex. 2 at 
28).
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    Respondent's documentary evidence included, inter alia, an April 7, 
2010 Proposed Decision (Proposed Decision) of an ALJ of the California 
BRN. The Proposed Decision ordered Respondent's Registered Nurse 
License, Nurse Practitioner Certificate, Nurse Practitioner Furnisher 
Certificate and Health Nurse Certificate revoked, but stayed the 
revocation and placed Respondent on probation for two (2) years with 
specified terms and conditions. (Resp't Ex. 1 at 6-7.) The Proposed 
Decision followed a March 29, 2010 administrative hearing regarding the 
July 31, 2009 Accusation filed by the BRN, alleging four causes of 
discipline against Respondent. (See Gov't Ex. 13.) In that proceeding, 
the BRN had requested that Respondent be placed on probation for three 
years with terms and conditions; the ALJ, however, concluded that two 
years probation was adequate ``in view of the substantial evidence of 
rehabilitation and sobriety presented by'' Respondent. (Resp't Exs. 1 
at 6.)
    Respondent also submitted a September 6, 2008 Certificate of 
Attendance reflecting successful completion of eight hours of 
continuing education in Pharmacology In Addiction and eight hours in 
Relapse Prevention. (Resp't Ex. 3.) Respondent also submitted letters 
dated September and August 2009 from two friends and colleagues, Linda 
Long, R.N., M.S.N., F.N.P., and Linnea Trageser, N.P., both attesting 
to Respondent's professionalism and qualifications to practice. (Respt' 
Ex. 4 at 1-4.) A September 2009 letter from Respondent's parents 
thoughtfully describes Respondent's addiction to prescription 
medications, including the causes, as well as her successful efforts at 
rehabilitation and continued abstinence. (Resp't Ex. 4 at 5.) A March 
11, 2010 letter of personal reference from Alison McManus, Family Nurse 
Practitioner, a friend of Respondent and her co-worker from April to 
November 2009, describes Respondent as ``always professional'' and 
``punctual and reliable, organized, efficient, and competent.'' (Resp't 
Ex. 5 at 1.) Three other letters dating from February 2008 to February 
2009, written by a former student, supervisor and co-worker, 
respectively, refer to Respondent as a dedicated professional and 
``inspirational role model.'' (Id. at 2-4.) A September 1, 2009 letter 
from a friend and ``sponcee'' at Alcoholics Anonymous (AA) credibly 
describes Respondent's acceptance of responsibility for her actions as 
well as Respondent's demonstrated willingness to change her behavior. 
(Resp't Ex 8 at 2.)
    The record reflects that on September 10, 2007, Respondent was 
recertified as an Acute Care Nurse Practitioner, effective September 1, 
2007, to August 31, 2012. (Resp't Ex. 6.)
    Letters dated March 25, 2008, and September 9, 2009, from Steven F. 
Bucky, PhD, Clinical Psychologist, report in relevant part that 
Respondent has been seen in psychotherapy for approximately two years 
and ``is progressing well with no evidence of drug, alcohol, or 
prescription drug use.'' (Resp't Ex. 7 at 1-2.)
    A July 5, 2007 letter by Dr. Marina Katz, M.D., documents a June 
18, 2007 psychiatric evaluation of Respondent. The report assesses 
Respondent's opiate dependence and finds that it is in remission, 
noting that Respondent is active in Narcotics Anonymous (NA), and 
cautiously gives Respondent a favorable prognosis. (Resp't Ex. 7 at 5-
6.)
    A September 4, 2008 letter from Kristine M. Vickery, R.N., 
Facilitator of the San Diego Nurse to Nurse peer support group, notes 
Respondent's weekly attendance at the support group since April 2007, 
describing Respondent as a ``determined, motivated individual who is 
genuinely committed to recovery from chemical dependency.'' (Resp't Ex. 
8 at 1.) The letter further notes Respondent's ``sobriety date is 
November 29, 2006 and she maintained negative drug/ETG tests since her 
entrance into the [Nursing] Diversion Program. Additionally, a hair 
follicle test was performed in June 2007, and it was negative, as 
well.'' (Id.)

Discussion

I. The Applicable Statutory Provisions

    The Controlled Substances Act (CSA) provides that any person who 
dispenses (including prescribing) a controlled substance must obtain a 
registration issued by the DEA in accordance with applicable rules and 
regulations.\8\ ``It shall be unlawful for any person knowingly or 
intentionally to acquire or obtain possession of a controlled substance 
by misrepresentation, fraud, forgery, deception, or subterfuge.'' \9\ 
``A separate registration shall be required at each principal place of 
business or professional practice where the applicant * * * dispenses 
controlled substances.'' \10\ DEA regulations provide that any 
registrant may apply to modify her registration to change her address 
but such modification shall be handled in the same manner as an 
application for registration.\11\
---------------------------------------------------------------------------

    \8\ 21 U.S.C. 822(a)(2).
    \9\ 21 U.S.C. 843(a)(3).
    \10\ 21 U.S.C. 822(e).
    \11\ See 21 CFR 1301.51 (2010)
---------------------------------------------------------------------------

    It is unlawful for any person to possess a controlled substance 
unless that substance was obtained pursuant to a valid prescription 
from a practitioner acting in the course of professional practice.\12\
---------------------------------------------------------------------------

    \12\ 21 U.S.C. 844(a).
---------------------------------------------------------------------------

A. The Public Interest Standard
    Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an 
application for a DEA COR if she determines that such registration 
would be inconsistent with the public interest. In determining the 
public interest, the Deputy Administrator is required to consider the 
following factors:
    (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 and 
safety.
    As a threshold matter, the factors specified in Section 823(f) are 
to be considered in the disjunctive: The Deputy Administrator may 
properly rely on any one or a combination of those factors, and give 
each factor the weight she deems appropriate, in determining whether a 
registration should be revoked or an application for registration 
denied.\13\
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    \13\ See Henry J. Schwarz, Jr., M.D., 54 FR 16,424 (DEA 1989).

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[[Page 60927]]

B. Other Factors
    In addition to the public interest factors discussed above, 21 
U.S.C. 824(a) provides four other factors that the Deputy Administrator 
may consider in a proceeding to suspend or revoke a DEA COR.\14\ 
Despite the lack of an explicit provision applying these factors to a 
denial of an application [t]he agency has consistently held that the 
Administrator may also apply these bases to the denial of a 
registration, since the law would not require an agency to indulge in 
the useless act of granting a license on one day only to withdraw it on 
the next.\15\ In addition, I conclude that the reference in Sec.  
823(f)(5) to ``other conduct which may threaten the public health and 
safety'' would as a matter of statutory interpretation logically 
encompass the factors listed in Sec.  824(a).\16\
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    \14\ That subsection provides that a DEA COR may be revoked upon 
a finding that the registrant: (1) Has materially falsified an 
application; (2) has been convicted of a felony under the CSA or any 
other federal or state law relating to any controlled substance; (3) 
has had a state license or registration suspended, revoked or denied 
and is no longer authorized by state law to handle controlled 
substances; (4) has committed such acts as would render his 
registration under 21 U.S.C. 823 inconsistent with the public 
interest; or (5) has been excluded from participation in 
incorporating the public interest factors from Sec.  823(f). See 21 
U.S.C. 824(a)(4).
    \15\ Kuen H. Chen, M.D., 58 FR 65,401, 65, 402 (DEA 1993) 
(citing Serling Drug co. & Detroit Prescription Wholesaler, Inc., 40 
FR 11,918, 11,919 (DEA 1975)); accord Scott J. Loman, D.D.S., 50 FR 
18,941 (DEA 1985); Roger Lee Palmer, D.M.D., 49 FR 950 (DEA 1984).
    \16\ See Chen, 58 FR at 65,402.
---------------------------------------------------------------------------

II. The Factors To Be Considered

Factor 1: The Recommendation of the Appropriate State Licensing Board
    As described in the Evidence and Incorporated Findings of Fact 
Section of this Recommended Decision, Respondent holds active state 
authority \17\ in California as a mid-level practitioner, which has 
been the subject of prior disciplinary action. (See, e.g., Gov't Ex. 
13.) The gravamen of the misconduct which formed the basis of the 
California BRN Accusation filed on July 31, 2009, related solely to 
Respondent's actions between June 2006 and December 2006, which were 
attributable to an addiction to prescription pain medications. (See 
Gov't Ex. 13 at 6-7.)
---------------------------------------------------------------------------

    \17\ Registered Nurse Licdense No. 513926; Nurse Practitioner 
Certificate No. 12026; Nurse Practitioner Furnisher Certificate No. 
12026; Public Health Nurse Certificate No. 55127.
---------------------------------------------------------------------------

    The evidence at hearing reflects that the BRN complaint against 
Respondent was the subject of a March 29, 2010 California 
administrative hearing, during which the BRN recommended that 
Respondent be placed on a three-year period of probation, with 
specified terms and conditions. (See Resp't Ex. 1 at 6.) The April 7, 
2010 Proposed Decision of the state ALJ concluded that cause for 
discipline exists under applicable California law, finding that 
Respondent committed acts of unprofessional conduct by possession and 
use of Schedule II controlled substances without valid prescriptions; 
and that Respondent forged prescriptions for controlled substances 
using a prescription pad stolen from a physician. (Resp't Ex. 1 at 5-
6.)
    In mitigation, the Proposed Decision ordered revocation of 
Respondent's state nursing licenses, but stayed the revocation and 
placed Respondent on probation for two years, with specified terms and 
conditions. (Resp't Ex. 1 at 6-7.) Of note, the state ALJ found 
substantial evidence of Respondent's rehabilitation and sobriety, 
concluding that two rather than three years of probation would be 
``adequate for the board to monitor respondent to ensure public 
protection.'' (Resp't Ex. 1 at 6.) On December 28, 2010, the BRN issued 
a Decision After Non-Adoption, which was consistent with the Proposed 
Decision, except it further reduced the period of probation to one year 
and reduced Respondent's costs to zero. (Gov't Br. at Gov't Ex. 17.) 
\18\
---------------------------------------------------------------------------

    \18\ See supra note 3.
---------------------------------------------------------------------------

    The most recent action by the California BRN reflects a 
determination that notwithstanding findings of unprofessional conduct, 
Respondent can be entrusted with an active license subject to 
probationary terms and conditions. While not dispositive,\19\ I find 
the careful deliberations and action by the state licensing authorities 
weigh in favor of a finding that Respondent's registration would be 
consistent with the public interest under 21 U.S.C. 823(f).
---------------------------------------------------------------------------

    \19\ Mortimer B. Levin, D.O., 55 FR 8209, 8210 (DEA 1990) 
(finding DEA maintains separate oversight responsibility and 
statutory obligation to make independent determination whether to 
grant registration).
---------------------------------------------------------------------------

Factor 3: Respondent's Conviction Record
    As noted above, one of the factors in determining whether 
Respondent's registration would be inconsistent with the public 
interest is ``[t]he applicant's conviction record under Federal or 
state laws relating to the manufacture, distribution, or dispensing of 
controlled substances.'' 21 U.S.C. 823(f)(3).\20\ The OSC alleges that 
Respondent pled ``guilty to a felony count of obtaining a narcotic drug 
(OxyContin) by means of a forged prescription, in violation of 
California Health & Safety Code Sec.  11368.'' (ALJ Ex. 1 at 2.) 
Pursuant to applicable state law,\21\ the entry of judgment was 
deferred and upon successful completion of a treatment program, the 
charges were dismissed. (Gov't Ex. 11.) The California statute provides 
in pertinent part that a ``defendant's plea of guilty pursuant to this 
chapter shall not constitute a conviction for any purpose,'' unless 
judgment of guilt is entered.\22\ But even the clearest statement of 
state law is not controlling on the question of what constitutes a 
``conviction'' pursuant to the federal CSA. The question therefore 
remains whether Respondent's plea of guilty, which was ultimately 
dismissed, constitutes a ``conviction'' on the facts of this case.
---------------------------------------------------------------------------

    \20\ I note that 21 U.S.C. 824(a)(2) (factor considering whether 
registrant ``has been convicted of a felony under the Controlled 
Substances Act or any other federal or state law relating to any 
controlled substance'') was not cited in either the OSC or otherwise 
noticed prior to hearing, and therefore is not applicable to this 
Recommended Decision. See CBS Wholesale Distribs., 74 FR 36,746, 
36,749 (DEA 2009).
    \21\ Cal. Penal Code 1000.1.
    \22\ Id. Sec.  1000.1(d).
---------------------------------------------------------------------------

    Federal case law has established that ``[a] conviction alone is 
sufficient to allow the Attorney General (through the DEA 
Administrator) to revoke or suspend a DEA registration.'' Pearce v. 
DEA, 867 F.2d 253, 255 (6th Cir. 1988) (citing Fitzhugh v. DEA, 813 
F.2d 1248, 1253 (DC Cir. 1987)). Agency precedent takes an expansive 
view of what constitutes a ``conviction.'' ``The law is well settled 
that a DEA registrant may be found to have been `convicted' within the 
meaning of the Controlled Substances Act, despite a deferred 
adjudication of guilt.'' Harlan J. Borcherding, D.O., 60 FR 28796-01, 
28798 (DEA 1995) (citing Mukand Lal Arora, M.D., 60 FR 4447, 4448 (DEA 
1995) (fine, two years of probation and deferred adjudication deemed 
sufficient), Clinton D. Nutt, D.O., 55 FR 30,992, 30,992 (DEA 1990) 
(nolo contendere plea and deferred adjudication of guilt deemed 
sufficient) and Eric A. Baum, M.D., 53 FR 47,272, 47,272 (DEA 1988) 
(``best interest'' plea, probation, drug counseling and withholding of 
adjudication deemed sufficient)).
    The policy underlying this precedent is founded in the doctrine of 
claim preclusion. ``When the judge decided to withhold adjudication and 
sentence and instead placed the defendant on probation * * * it is 
clear that the defendant could no longer be tried on the information.'' 
United States v. Cook,

[[Page 60928]]

10 M.J. 138, 139 (U.S. Ct. Mil. App. 1981) (cited, but not quoted, in 
Eric A. Baum, M.D., 53 FR 47,272 (DEA 1988)). Accordingly, a registrant 
whose criminal adjudication has been deferred is nevertheless 
considered to have been ``convicted'' under DEA precedent.
    In this case, the fact that a finding of guilt was specifically not 
entered as to Respondent and the charges dismissed, leaves open the 
question as to whether the foregoing Agency precedent is controlling on 
the issue of whether Respondent's plea constitutes a conviction under 
21 U.S.C. 823(f).\23\ It is unnecessary to reach that issue, however, 
because the underlying offense to which Respondent pled guilty does not 
``relate[ ] to the manufacture, distribution, or dispensing of 
controlled substances,'' the standard embraced in Sec.  823(f). See 
Super-Rite Drugs, 56 FR 46,014, 46,015 (DEA 1991) (``Although 
[applicant] entered a guilty plea to a drug-related felony, his actions 
did not relate to the manufacture, distribution, or dispensing of 
controlled substances.'').
---------------------------------------------------------------------------

    \23\ Agency precedent as embodied in Baum and other cases, 
carried to its logical conclusion, could arguably deem a plea that 
was later withdrawn, and a defendant found not guilty after trial, 
to be a conviction, on the claim preclusion grounds discussed in 
United States v. Cook, 10 M.J. 138, 139 (U.S. Ct. Mil. App. 1981), a 
case cited favorably in Baum. Cf. Baum, 53 FR at 47,274.
---------------------------------------------------------------------------

    Accordingly, I find that Respondent has not been convicted of any 
laws relating to the manufacture, distribution or dispensing of 
controlled substances. I therefore find that Factor Three under Section 
823(f), while not dispositive, does weigh in favor of a finding that 
Respondent's registration would be consistent with the public interest.
Factors 2, 4 and 5: Respondent's Experience in Dispensing Controlled 
Substances; Compliance With Applicable State, Federal or Local Laws 
Relating to Controlled Substances; and Such Other Conduct Which May 
Threaten the Public Health and Safety
    The central issue in this case centers on Respondent's addiction to 
prescription pain medications, which began in or about 2006 while under 
medical care for chronic migraine headaches. (See Tr. 45-46.) 
Respondent's use of prescription pain medications eventually culminated 
in a course of conduct between June 2006 to December 2006, where she 
forged approximately nine prescriptions for Schedule II controlled 
substances for herself using a stolen prescription pad (see, e.g., Tr. 
24-26, 46), and wrongfully used and possessed Schedule II controlled 
substances (e.g., Gov't Ex. 13 at 6). Other than the time period from 
June to December 2006, with a single exception noted below, there is no 
evidence that Respondent has failed to comply with all applicable laws 
and regulations relating to controlled substances during her 
professional career.
    As to the single instance of Respondent's noncompliance with 
controlled substance laws following her sobriety date, there is 
evidence of record that Respondent was dismissed in February 2009 from 
a Nursing Diversion Program, during her employment as a nurse 
practitioner in a bone marrow transplant unit, on the grounds that a 
computer-generated admission order for a patient automatically included 
an order for oxycodone. (E.g., Resp't Ex. 1 at 4.) Respondent was 
informed that she was being dismissed because this admission order, 
which included an order for oxycodone, was considered the equivalent to 
dispensing oxycodone. (Tr. 47.) Respondent credibly testified that she 
had ``not dispensed medications in over ten years, and the orders were 
part of a standardized set for all cancer patients.'' (Tr. 47.) 
Additionally, the evidence reflects that as of February 2009, 
Respondent had successfully participated in the Nursing Diversion 
Program for approximately twenty-two months and had been in full 
compliance with other strict requirements to include random drug tests, 
all of which were negative. (Resp't Ex. 1 at 4.)
    As an initial matter, the issue of Respondent's dismissal from the 
Nursing Diversion Program due to improper dispensing of oxycodone was 
not specifically noticed by the Government in the OSC or prehearing 
statement, nor was it referenced in any Government exhibits prior to 
hearing. The issue was introduced by Respondent at hearing during her 
direct testimony as well as in documentary evidence. (Tr. 47; Resp't 
Ex. 1 at 4.)
    To comport with due process requirements, the DEA must ``provide a 
Respondent with notice of those acts which the Agency intends to rely 
on in seeking the revocation of [her] registration so as to provide a 
full and fair opportunity to challenge the factual and legal basis for 
the Agency's action.'' CBS Wholesale Distribs., 74 FR 36,746, 36,749 
(DEA 2009) (citing NLRB v. I.W.G., Inc., 144 F.3d 685, 688-89 (10th 
Cir. 1998) and Pergament United Sales, Inc., v. NLRB, 920 F.2d 130, 134 
(2d Cir. 1990)). An issue cannot be the basis for a sanction when the 
Government has failed to ``disclose `in its prehearing statements or 
indicate at any time prior to the hearing' that an issue will be 
litigated.'' Id. at 36,750 (citing Darrell Risner, D.M.D., 61 FR 728, 
730 (DEA 1996)). The DEA has also previously found, however, that a 
respondent may waive objection to the admission of evidence not noticed 
by the Government prior to the hearing when the respondent does not 
timely object and when the respondent also raises the issue. Gregory D. 
Owens, D.D.S., 74 FR 36,751, 36,755 (DEA 2009).
    In accordance with agency precedent, I find in this case that the 
issue of Respondent's February 2009 dispensing of oxycodone may 
properly be considered in evaluating Respondent's application, as well 
as on the issue of sanction. I also find that Respondent's conduct 
culminating in the single instance of dispensing oxycodone in February 
2009 was inadvertent. The record reveals that

[w]hen patients were admitted to the unit, respondent, using a 
preprogrammed computer check sheet, admitted the patients by 
checking the appropriate admission box that appeared on the computer 
screen. By checking the box, the computer program automatically 
issued a standard set of admission orders. In some instances, the 
set orders included an order for the patient to receive [o]xycodone.

    (Resp't Ex. 1 at 4.) The circumstances of this single incident and 
Respondent's early termination from the Nursing Diversion Program after 
approximately twenty-two fully successful months does not weigh against 
Respondent's application for DEA registration. I also note that as with 
all other aspects of Respondent's testimony, Respondent was fully 
credible and candid in her explanation of this incident.
    The Government maintains that Factors Four and Five are relevant to 
the public interest inquiry, relying in part on the undisputed evidence 
of Respondent's history of self-abuse of controlled substances, and 
citing Gary E. Stanford, M.D., 58 FR 14,430 (DEA 1993) and William L. 
Pigg, M.D., 55 FR 3120 (DEA 1990), cases finding a registrant's abuse 
of controlled substances and alcohol relevant to the public interest 
inquiry.
    In Stanford, the evidence of abuse included ``a history of abuse of 
alcohol, recreational use of cocaine, and other controlled substances 
for other than a legitimate medical purpose over several years'' and 
concerned a registrant in the ``early months of recovery.'' Stanford, 
58 FR at 14,432. Of note, the ALJ's recommended decision in Stanford, 
which the Agency adopted in its entirety, ``recommended that if after 
the passage of one year from the final disposition of the case, 
[r]espondent files a new application for registration,

[[Page 60929]]

and if his rehabilitation efforts have continued successfully, 
investigation of that application should be expedited, and favorable 
consideration should be given to the application.'' Id. In Pigg, a case 
in which the respondent waived hearing and the Agency issued a final 
decision on grounds of lack of state authority, as well as drug abuse, 
the facts relating to substance abuse included abuse of cocaine and 
alcohol over at least a two-year period, along with a subsequent abuse 
of alcohol and controlled substances following entry to an Impaired 
Physicians Program. Pigg, 55 FR at 3120.
    Other cases reflect long-held ``precedent that a practitioner's 
self-abuse of controlled substances constitutes `conduct which may 
threaten public health and safety.''' Steven B. Brown, M.D., 75 FR 
65,660, 65,662 (DEA2010) (citing Tony T. Bui, M.D., 75 FR 49,979, 
49,990 (DEA 2010); Kenneth Wayne Green, Jr., M.D., 59 FR 51,453 (DEA 
1994); David E. Trawick, D.D.S, 53 FR 5326 (DEA 1988). In Brown, the 
evidence of self-abuse spanned approximately a two year period during 
which the registrant prescribed 160-180 tablets of oxycodone 30 mg 
monthly to a patient in exchange for return of half of the controlled 
substances. Brown, 75 FR at 65,661. Additional evidence included a 
finding that the registrant was a drug abuser and a threat to public 
health and safety, when he offered the patient ``a hit of liquid 
oxycodone.'' Id. at 65,662.
    In the instant case, the evidence is undisputed that Respondent's 
conduct between approximately June and December 2006 violated federal 
and state law and reflected a serious drug addiction by Respondent 
during that time period of approximately six months.\24\ The evidence 
includes approximately nine instances of Respondent forging 
prescriptions using a stolen prescription pad, resulting in the 
acquisition of approximately 115 tablets of fentanyl and 120 tablets of 
oxycontin. (Gov't Exs. 2 & 3.) The evidence further reflects that 
Respondent's addiction had progressed to the point where she would 
dissolve ``the Actiq [fentanyl] in a saline solution and inject herself 
with it.'' (Gov't Ex. 13 at 6.)
---------------------------------------------------------------------------

    \24\ Compare Tr. 46, with Tr. 27, and Gov't Ex. 2 at 9, 14, 16, 
18, 20, 22, 24, 26, & 28 (forged prescriptions ranging between 
August 9, 2006, and December 6, 2006).
---------------------------------------------------------------------------

    Additionally, the evidence regarding Respondent's acknowledgement 
of her addiction includes a December 18, 2006 interview at the San 
Diego Bureau of Narcotics Enforcement office, where Respondent 
initially denied forging any prescriptions, but eventually admitted 
that she had stolen the prescription pad and forged prescriptions for 
OxyContin and Actiq.\25\ (Gov't Ex. 4; Gov't Ex. 13 at 6.) There is 
other evidence suggesting Respondent was already attempting to seek 
help on her own, including Respondent's testimony that not long after 
forging prescriptions ``I called a therapist I had recently been 
seeing, and told him what I had done, and asked for help.'' (Tr. 46.)
---------------------------------------------------------------------------

    \25\ This evidence is somewhat consistent with testimony of DI 
Bartolomeo with regard to Respondent's confession on December 18, 
2006, although DI Bartolomeo did not reference Respondent's initial 
denial. (See, e.g., Tr. 29.) For instance, the record was unclear 
whether Respondent made two separate admissions on December 18, 
2006. Notwithstanding the ambiguity and intial denial, I find that 
Respondent's admission of misconduct and cooperation with law 
enforcement authorities was timely and is to her credit.
---------------------------------------------------------------------------

    To summarize, Respondent's admitted misconduct and substance abuse 
between June and December 2006, if viewed standing alone, does weigh 
against a finding that Respondent's unconditional registration would be 
consistent with the public interest under Factors Four and Five.

Conclusion and Recommendation

    After balancing the foregoing public interest factors, I find the 
Government has established by substantial evidence a prima facie case 
in support of denial of Respondent's application for registration, 
based on Respondent's unlawful possession, use and fraudulent 
acquisition of controlled substances between June and December 2006. 
Once DEA has made its prima facie case for revocation, the burden then 
shifts to the respondent to show that, given the totality of the facts 
and circumstances in the record, denial of the application would not be 
appropriate. See Morall v. DEA, 412 F.3d 165, 174 (DC Cir. 2005); 
Humphreys v. DEA, 96 F.3d 658, 661 (3d Cir. 1996); Shatz v. United 
States Dep't of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989); Thomas E. 
Johnston, 45 FR 72, 311 (DEA 1980).
    Additionally, where a registrant has committed acts inconsistent 
with the public interest, the registrant must accept responsibility for 
his or her actions and demonstrate that he or she will not engage in 
future misconduct. Patrick W. Stodola, M.D., 74 FR 20,727 (DEA 2009). 
Also, ``[c]onsideration of the deterrent effect of a potential sanction 
is supported by the CSA's purpose of protecting the public interest.'' 
Joseph Gaudio, M.D., 74 FR 10,083, 10,094 (DEA 2009).
    In the instant case, Respondent's testimony at hearing with regard 
to her past misconduct, and demonstrated efforts to avoid a repeat of 
those mistakes, was fully credible. Respondent's testimony was 
consistent and candid throughout her direct and cross examination. With 
regard to the facts surrounding her misconduct, Respondent credibly 
assumed full responsibility for her actions, stating at the outset of 
her testimony that ``I was guilty of egregious behavior when I made 
unprofessional choices that led to my chemical dependence.'' (Tr. 44.) 
The Government argues that Respondent ``appeared to accept 
responsibility,'' but that ``her father attempted to shift the blame 
for Respondent's addiction to her physician and two drug 
manufacturers.'' (Gov't Br. at 5.) The relevant inquiry, however, is 
Respondent's own acceptance of responsibility, not that of a third 
party.\26\
---------------------------------------------------------------------------

    \26\ Even assuming the testimony of a third party might be 
relevant in some circumstances to whether a respondent has accepted 
responsibility, such as, for example, to impeach a respondent's 
credibility, I find Respondent's father's testimony in this case to 
be fully consistent with Respondent's acceptance of responsibility. 
In explaining the circumstances and context of Respondent's 
addiction, Respondent's father concluded by stating ``I believe * * 
* that forging prescriptions is a serious offense, especially by 
someone who has been granted a DEA certificate. But the 
circumstances which caused * * * this are far behind her,'' credibly 
enumerating the specific positive changes in his daughter's life. 
(Tr. 77.)
---------------------------------------------------------------------------

    The evidence and testimony demonstrating Respondent's efforts to 
ensure that she will not engage in future misconduct relating to drug 
addiction is substantial and compelling. The Government ``contends that 
Respondent needs additional time to demonstrate she can remain free 
from drug abuse and to solidify her recovery.'' \27\ The facts reflect 
that Respondent has been free from drug abuse for over four years 
(compare Gov't Exs. 6 & 7, with Tr. 44-46, Tr. 80, and Resp't Ex. 1 at 
4) and the time period of her abuse covered a relatively short time of 
approximately six months.\28\ The passage of time and significant 
efforts at rehabilitation are relevant and weighty considerations. See 
Sokoloff v. Saxbe, 501 F.2d 571 (2d Cir. 1974) (passage of time 
requires careful consideration of new application); see also Azen v. 
DEA, 1996 WL 56114 at *2 (9th Cir. Feb. 9, 1996) (impressive evidence 
of rehabilitation and continued abstinence important consideration). 
The evidence also reflects that Respondent admitted her addiction to a 
therapist in late 2006 (Tr. 46) and timely cooperated with authorities 
in December 2006 when

[[Page 60930]]

confronted with allegations of misconduct (Gov't Ex. 13 at 6), behavior 
which weighs in Respondent's favor. See Karen A. Kruger, M.D., 69 FR 
7016, 7017-18 (DEA 2004) (timely cooperation with investigators when 
questioned on past misconduct held a significant consideration in 
granting subsequent application for registration).
---------------------------------------------------------------------------

    \27\ Gov't Br. at 6.
    \28\ Supra note 24.
---------------------------------------------------------------------------

    Respondent's abstinence from drug abuse since 2006, and her efforts 
at rehabilitation have been consistent, substantial, and successful. 
The uncontroverted evidence of rehabilitation shows that Respondent: 
successfully completed a seven-week outpatient alcohol and drug 
treatment program (Gov't Ex. 6); successfully completed a one-year 
dependency aftercare program (Gov't Ex. 7); successfully participated 
in a Nursing Diversion Program for twenty-two months (Resp't Ex. 1 at 
4); regularly attended AA and NA meetings (Resp't Ex. 7 at 5-6; Resp't 
Ex. 8 at 2); regularly attended nurse-to-nurse meetings (Resp't Ex. 1 
at 4); and has had sustained sobriety since December 2006, as evidenced 
by repeated negative random drug tests (see Resp't Ex. 1 at 4), inter 
alia. Credible and unrebutted testimony even reveals that Respondent 
went as far as avoiding medically indicated pain medication in 2010, 
just to avoid any potential for relapse. (Tr. 79.) In addition to the 
foregoing, the record is replete with credible evidence from family, 
friends, colleagues, students, treating sources and mentors, all 
consistently attesting to Respondent's sustained recovery and 
abstinence from prescription drug abuse. In light of the significant 
evidence of rehabilitation and ongoing monitoring by the California 
BRN, I find Respondent has sustained her burden in accepting 
responsibility and demonstrated that she has taken the necessary steps 
to avoid a repeat of her mistakes. Granting Respondent's application 
for a COR, subject to conditions, is fully consistent with the public 
interest.
    Accordingly, I recommend that Respondent's application for DEA COR 
be granted, subject to the following conditions: (1) Respondent shall 
comply with all of the terms and conditions specified in the December 
28, 2010 Order of the California BRN (see Gov't Br. at Gov't Ex. 17); 
and (2) for one (1) year following the issuance of a final order in 
this proceeding, Respondent shall upon request, submit to the nearest 
Field Division Office of DEA, copies of the results of any random or 
directed drug screening tests involving Respondent.

    Dated: February 4, 2011.
Timothy D. Wing,
Administrative Law Judege.
[FR Doc. 2011-25238 Filed 9-29-11; 8:45 am]
BILLING CODE 4410-09-P