[Federal Register Volume 79, Number 64 (Thursday, April 3, 2014)]
[Notices]
[Pages 18714-18737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07450]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 13-14]
Mark P. Koch, D.O.; Decision and Order
On July 18, 2013, Administrative Law Judge Gail A. Randall issued
the attached Recommended Decision (R.D.). Therein, the ALJ found that
while Respondent had previously abused
[[Page 18715]]
cocaine, he had successfully demonstrated his sobriety since 2005. R.D.
at 60, 62. However, the ALJ also found that Respondent had been
convicted of conspiring to dispense, and possess with intent to
distribute and dispense, testosterone and primobolan depot, which are
schedule III controlled substances, in violation of 21 U.S.C. 846, id.
at 29-30, and that his conviction ``strongly supports a finding that
continuing his registration and granting his renewal applications would
be inconsistent with the public interest.'' Id. at 57.
The ALJ further found that Respondent ``failed to testify credibly
about his handling of anabolic steroids,'' that he ``blamed his ex-wife
for [the] conduct to which he pled guilty, thereby undermining the
circumstances where he had had actually accepted responsibility for his
actions,'' as well as ``demonstrate[d] a lack of candor.'' Id. at 62.
The ALJ also found that while ``Respondent has been granted numerous
opportunities to act as a responsible DEA registrant [he] has failed
each time'' and that he ``has not shown that he has learned from his
past mistakes in a way that will prevent future misconduct.'' Id. at
64. The ALJ thus concluded that Respondent's registration is
inconsistent with the public interest and recommended that I revoke his
existing registrations and deny his renewal application. Id. at 65.
Respondent filed exceptions to the Recommended Decision. Having
reviewed the record in its entirety, I reject the ALJ's conclusion that
Respondent violated federal law because he was not registered at his
principal place of professional practice in Minnesota as unsupported by
substantial evidence. See R.D. at 53. While I also reject the ALJ's
legal conclusion that a registrant is not required to notify the Agency
if he changes the address of his principal place of professional
practice, I find that there is insufficient evidence to prove a
violation. See id. at 52. I also find several of Respondent's
exceptions to be well taken. However, I nonetheless conclude that the
ALJ's ultimate finding that Respondent's registration is inconsistent
with the public interest is supported by substantial evidence.
Accordingly, I will adopt the ALJ's recommended order. Before
proceeding to discuss Respondent's exceptions, I will address the ALJ's
conclusions regarding Respondent's Minnesota registration.
On cross-examination of Respondent, the Government raised for the
first time the issue of whether he violated DEA regulations because he
was not practicing at the address which was his registered location in
Minnesota.\1\ Tr. 187. According to Respondent, the address he listed
was a location of the company he worked for as a locum tenens
practitioner, but he was not practicing at this address. Id. When asked
whether any mail that was sent to this address would be given to him,
Respondent initially answered ``yes'' but then added that his mailing
address for this registration was in Alabama. Id. Moreover, when
questioned by the ALJ as to whether the Minnesota Board had placed any
restrictions on his medical license, Respondent testified that he had
listed his ``practice address with'' the Board and that ``the lion
share of [his] work'' was at an emergency room in Thief Rivers Fall,
Minnesota. Tr. 200.
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\1\ The Government did not allege a violation of the
registration provisions in the Show Cause Order, nor raised the
issue in either of its pre-hearing statements. Indeed, it did not
even raise the issue in its case in chief and Respondent did not
open the door during his testimony on direct examination. I need not
decide, however, whether the issue was litigated by consent because
I find that the Government failed to prove an element of the
violation.
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In its rebuttal case, and over the objection of Respondent who
claimed inadequate foundation but not a lack of notice, the Government,
through the testimony of a DI, was allowed to admit into evidence an
envelope which was mailed to him from the DEA Office of Chief Counsel
and addressed to Respondent at his Minnesota registered location. See
GX 44. The mailing was returned unclaimed and marked: ``UNDELIVERABLE
AS ADDRESSED FORWARDING ORDER EXPIRED'' and ``RETURN TO SENDER UNABLE
TO FORWARD.'' Id.\2\ Subsequently, the ALJ found that ``Respondent was
not registered at his principal place of business while working in a
locum tenens capacity in Minnesota, in violation of 21 CFR 1301.12.''
R.D. at 53.
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\2\ While I conclude that the Government did not lay an adequate
foundation to admit the document, I conclude that the error was not
prejudicial because Respondent's testimony established that he was
not practicing at his registered location in Minnesota.
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Under 21 U.S.C. 822(e), ``[a] separate registration [is] required
at each principal place of business or professional practice where the
applicant . . . dispenses controlled substances.'' (emphasis added).
But while it may seem obvious that an emergency room physician would
have dispensed controlled substances in the course of his employment,
the Government never asked Respondent if he dispensed controlled
substances at any of the emergency rooms he worked at in Minnesota, nor
produced any other evidence to show that he did.\3\ Because there is no
evidence in the record that Respondent dispensed controlled substances
in Minnesota, and the registration requirement only applies to a
``principal place of . . . professional practice where the applicant .
. . dispenses controlled substances,'' I reject the ALJ's finding as
unsupported by substantial evidence.
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\3\ While the director of the emergency room at one of the
Minnesota hospitals where Respondent worked testified that he and
the nursing staff had not had any problems with Respondent's
prescriptions, the Government did not clarify whether his
prescriptions included controlled substances. Tr. 115.
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In her discussion of the registration requirements, the ALJ also
rejected the Government's contention that ``Respondent violated a duty
to notify DEA of a change in his registered address[,]'' reasoning that
``no such duty exits under the statute or regulations.'' Id. While I
agree that the Government did not establish a violation, I reject the
ALJ's reasoning that there is no such duty under federal law.
In reaching her conclusion, the ALJ relied entirely on 21 CFR
1301.51 and reasoned that the Agency's ``regulations do not explicitly
define a registrant's duty to notify the DEA of a change in address.''
R.D. at 52. This regulation provides that ``[a]ny registrant may apply
to modify his/her registration . . . or change his/her name or address,
by submitting a letter of request to the'' Agency. 21 CFR 1301.51.
Reasoning that if the Agency ``wanted to create a responsibility to
notify the agency of a change in address, it could have used `shall'
instead of `may' in the regulation,'' the ALJ concluded that the
regulation does not create ``an affirmative responsibility . . . to
provide such notice.'' R.D. at 52.
The ALJ did not, however, acknowledge 21 U.S.C. 827(g), which
provides that ``[e]very registrant under this subchapter shall be
required to report any change of professional or business address in
such manner as the Attorney General shall by regulation require.''
(emphasis added). Thus, the CSA itself imposes a mandatory duty on the
part of a registrant to report to DEA that he has changed his
registered address.
Moreover, in Anthony E. Wicks, 78 FR 62676 (2013), the Agency held
that ``[b]ecause section 827(g) clearly creates a substantive
obligation on the part of a registrant to notify the Agency if he
changes his professional address, the regulation's use of the words
`may apply to modify' cannot alter (and cannot reasonably be read as
altering) the binding nature of a registrant's
[[Page 18716]]
obligation to notify the Agency.'' Id. at 62678; cf. Chevron, U.S.A.,
Inc. v. NRDC, 467 U.S. 837, 842-43 & n.9 (1984); United States v.
Rodgers, 461 U.S. 677, 706 (1983) (while ``[t]he word `may' . . .
usually implies some degree of discretion,'' this meaning ``can be
defeated by indications of legislative intent to the contrary or by
obvious inferences from the structure and purpose of the statute'')
(other citations omitted); see also United States v. Marte, 356 F.3d
1336, 1341 (11th Cir. 2004) (``When a regulation implements a statute,
the regulation must be construed in light of the statute[.]'')
(citation omitted).
In Wicks, the Agency also noted that the regulation further
provides that a modification is ``handled in the same manner as an
application for registration,'' 78 FR at 62678, and under another DEA
regulation, a registrant may ``not engage in any activity for which
registration is required until the application . . . is granted and a .
. .[r]egistration is issued.'' 21 CFR 1301.13(a). Thus, in Wicks, the
Agency held that notwithstanding its use of the words ``may apply to
modify his/her registration,'' the regulation is properly construed as
imposing on a registrant who changes his professional address, the
binding obligation to both: (1) notify the Agency of an address change,
and (2) refrain from dispensing activities at his new address until his
request is approved.\4\ Id.
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\4\ Wicks did not, however, raise the question of whether a
practitioner could prescribe at his new address if he was otherwise
registered in the same State. See 78 FR at 62676-78; see also 21 CFR
1301.12(a)(3).
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To make clear to the regulated community, I reject the ALJ's
reasoning that a registrant has no duty ``under the statute or
regulations'' to notify the Agency that he has changed his registered
address. Rather, that duty is imposed by 21 U.S.C. 827(g). However,
because there is no evidence that Respondent dispensed any controlled
substance while working in Minnesota, I do not find a violation proved
on this record.
Respondent's Exceptions
Exception 1
Respondent argues that the ALJ's reference to count II of the
indictment filed against him should not have been given any weight in
the Recommended Decision because the count was dismissed. Exceptions,
at 2-3. I reject the exception because while, in her factual findings,
the ALJ discussed both counts of the indictment, she also acknowledged
that count II was dismissed, and in her discussion of the public
interest factors, the ALJ relied only on the count to which he pled
guilty. Thus, the ALJ did not give any weight to the dismissed count in
concluding that Respondent's registration is inconsistent with the
public interest. I therefore reject the exception.
Exception 2
Next, Respondent argues that the ALJ allowed the Government ``to
relitigate [his] guilty plea while [he] was not allowed to provide an
accounting of the circumstances related to it and the actions leading
to said plea, which would have been favorable toward'' him. Exceptions,
at 3 (citing Tr. 176-78). This exception is frivolous, as the record
clearly shows that Respondent, on direct examination by his counsel,
was allowed to testify extensively regarding the circumstances
surrounding his guilty plea:
Resp. Counsel: Did you enter a guilty plea in the Lower District
of Alabama to one count of conspiracy to possess and intent to
distribute anabolic steroids?
Resp: Yes.
Resp. Counsel: Tell the Court what your involvement was as far
as any purchase that was made.
Resp: My wife was going up to north Alabama to purchase steroids
for herself and apparently for two other people. And my involvement
was to buy some Viagra and Cialis.
Resp. Counsel: Were you aware that she was purchasing steroids
in north Alabama?
Resp: Yes, I was aware of it.
Resp. Counsel: Where is your wife originally--excuse me, your
former wife originally from?
Resp: From north Alabama.
Resp. Counsel: Do you have knowledge whether--personal knowledge
yourself as to whether or not your wife--how she knew these
individuals?
Resp: It was actually a friend of my wife's.
Tr. 126-27.\5\
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\5\ As for Respondent's assertion that ``testimony was taken
regarding the plea, at length, from Government witnesses,''
Exceptions, at 3 (citing Tr. 82-84); the cited testimony was
provided by a Diversion Investigator who simply explained that after
receiving notification from the Alabama State Board of Medical
Examiners that it had suspended Respondent's medical license, he
determined that Respondent ``had pled guilty to a criminal case
involving anabolic steroids and had been sentenced . . . to five
years probation and a $10,000 fine,'' that the plea had been ``to
conspiracy to obtain and distribute anabolic steroids,'' and that
Respondent ``was supposed to be self-using the anabolic steroids.''
Tr. 82-84.
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Still later in his testimony, Respondent was allowed to provide an
even more extensive explanation of the events which led to the
indictment and his conviction. See id. at 194-97.\6\ This concluded
with Respondent providing the following testimony:
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\6\ During this portion of his testimony, Respondent claimed
that: (1) His ``wife had been on steroids for the past six years''
because she is ``a fitness buff''; (2) that he had never actually
spoken with any of the three indicted co-conspirators (whether the
person who sold the steroids to him or the two persons he was
selling them to); (3) that he gave his ex-wife money to buy only
Viagra and Cialis; and (4) that because he ``knew what [his
estranged wife] was doing,'' his lawyer advised him that ``he
thought that I was guilty.'' Tr. 194-96.
I definitely used poor judgment and I accept responsibility for
that and that's why I pled guilty. But as far as using them
[steroids] or soliciting them, I did not do that. But I am guilty of
giving her [his estranged wife] money to buy Cialis and did know
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about it.
Id. at 197.
Thus, contrary to Respondent's contention, he was allowed ``to
provide an accounting of the circumstances related to'' his guilty
plea. However, for reasons more fully below, I agree with the ALJ's
finding that that Respondent's testimony regarding his role in the
conspiracy was disingenuous, see R.D. at 62, and that he ``has not
taken full responsibility for his mistakes and genuinely expressed
remorse.'' Id. at 65. Indeed, Respondent's testimony suggests that he
is only remorseful for having been caught.
Exceptions 3 & 4
Next, Respondent takes exception to the ALJ's finding that he
lacked candor when he testified that ``he had never missed a random
drug screening.'' Exceptions, at 4 (citing R.D. at 11 (citing Tr.122 &
138)). More specifically, the ALJ found: ``He testified that he had
never missed a random drug screening. This testimony, however, was
squarely refuted by Respondent's drug-testing results, which showed he
missed twelve drug tests from July 2002 to February 2005.'' R.D. at 11
(citing Tr. 122 & 138; GX 17, at 53-55).
Respondent contends that the ALJ took his testimony out of context
because he was questioned only about his participation in the Alabama
Physicians Health Program, which he entered on May 12, 2005 after
undergoing inpatient treatment at Talbot Recovery Center. Exceptions,
at 4. Respondent further challenges the ALJ's findings as to the number
of drug tests he missed, arguing that ``[a] closer look at the
documentary evidence . . . shows that while he missed some `check-in'
calls with the Pennsylvania PHP, he only missed six scheduled
screenings, all of which were set during his stay at Talbot.'' Id.
(citing GX 17, at 46, 52-56).
As for the latter contention, the evidence showed that Respondent
was treated at Talbot from February 1, 2005
[[Page 18717]]
through approximately May 10, 2005. Tr. 121-22. While it is true that
the evidence does not support the ALJ's finding as to the number of
missed drugs tests, the evidence nonetheless shows that Respondent
missed scheduled tests on January 1, 2003 and August 13, 2004, well
before he entered Talbot. In addition, the evidence shows that
Respondent missed eleven calls before he entered Talbot, as well as
eight calls after May 10, 2005, including six calls after he entered
the Alabama Physicians Health Program. See GX 17.
However, a review of the record supports Respondent's contention
that when he denied missing tests, he was being questioned only about
his participation in the Alabama Physicians Health Program. See Tr.
122-23; 136-38. Accordingly, I reject the ALJ's finding that Respondent
lacked candor when he testified that he had never missed a random drug
screening.
Respondent also takes exception to the ALJ's finding that
``Respondent failed to show genuine remorse for'' his abuse of both
cocaine and alcohol, that this could ``have had very devastating
personal and professional consequences,'' and that ``his conduct and
lack of remorse weighs against [his] maintenance of a DEA
registration.'' \7\ Exceptions, at 6 (quoting R.D. at 60). Respondent
then contends that ``[h]is `history' of drug use prior to the summer of
2005 was held against him while little, if any, credit was given for
his eight years of total sobriety.'' Id.
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\7\ Prior to stating her finding that Respondent failed to show
genuine remorse, the ALJ explained that:
Here, Respondent credibly testified that he struggled with his
addiction from 1985 to 2005. Respondent openly admitted that he
abused both drugs and alcohol, during this time period. Respondent
said he used cocaine several times a year while on vacation in the
Caribbean. He also used to drink alcohol three times a week,
consuming up to eight to ten cans of beers each episode.
R.D. at 60.
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I need not decide whether Respondent's more recent period of
sobriety outweighs his years of substance abuse, nor whether to adopt
the ALJ's finding that Respondent lacked remorse with respect to his
substance abuse, because I reject Respondent's exceptions to the ALJ's
findings regarding his conviction on the conspiracy charge. I further
hold that this conviction provides reason alone to revoke his
registration given the recentness of his misconduct and Respondent's
utterly disingenuous attempt to blame his wife for it.
In his exceptions, Respondent contends that ``every fact entered
into evidence supports'' his statement ``that the criminal charge
against him never would have occurred if not for his estranged wife.''
Exceptions, at 6. He then sets forth a litany of assertions to the
effect that he was set up by his ex-wife and that the FBI's
investigation was inadequate because it failed to drug test his
estranged wife to determine if she was the one who was actually using
the steroids.\8\ Id. at 7.
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\8\ There is no support in the record for this assertion, and in
any event, Respondent's admissions in the factual resume establish
that the assertion is frivolous.
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The evidence showed that Respondent pled guilty to count one of the
indictment, which alleged that he conspired with at least two other
persons, to dispense and possess with intent to distribute and
dispense, testosterone and primobolan depot, which are schedule III
controlled substances and anabolic steroids. GX 23, at 1; see also GX
26, at 1 (Judgment). Moreover, count one alleged that the conspiracy
began ``on or about August 2005 and continu[ed] through on or about
July 8, 2011.'' GX 23, at 1. Also, in the factual resume, which was
incorporated into the plea agreement, see GX 25, at 3, Respondent
admitted to the allegations of count one, as well as that he that he
``purchased, consumed,\9\ and trafficked anabolic steroids.'' Id. at
14. He also admitted that ``[o]n or about June 24, 2011, a recording
showed him ``discussing the pending purchase of anabolic steroids
from'' a co-defendant by a cooperating source; that ``[o]n or about
June 28, 2011, the cooperating individual traveled'' to the co-
defendant and purchased various ``forms of anabolic steroids''; and
that ``the cooperating individual paid [the codefendant] approximately
$2000 which was given to'' the cooperating individual by Respondent and
two other co-defendants ``to purchase the steroids.'' Id. at 15.
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\9\ The ALJ found that while there was ``some evidence that
Respondent consumed anabolic steroids,'' the Government did not
prove his ``consumption was unlawful'' because the indictment did
not mention his ``unlawful consumption'' and did not cite ``a
specific statute that Respondent had violated by such consumption.''
R.D. at 51. The ALJ's reasoning ignores that Respondent's admission
was part of the ``offense conduct'' described in the factual resume.
See GX 25, at 14. In addition, while consuming a controlled
substance is not itself an offense under the CSA, the simple knowing
possession of a controlled substance is an offense even in the
absence of intent to distribute, see 21 U.S.C. 844(a), and
generally, one cannot consume a controlled substance without first
possessing it.
Furthermore, Respondent offered no evidence that he obtained
the steroids either ``directly, or pursuant to a valid prescription
or order, from a practitioner, while acting in the course of his
professional practice,'' or in a manner ``otherwise authorized by''
the CSA (i.e., by purchasing them from a registered distributor for
dispensing in the course of his professional practice). Id.; see
also 21 U.S.C. 885 (providing that the Government is not required
``to negative any exemption or exceptions set forth in [the CSA] in
any . . . pleading or in any . . . hearing, or other proceeding
under'' the CSA).
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As for the contention that ``that the criminal charge against him
never would have occurred if not for his estranged wife,'' it may be
true that absent his estranged wife's involvement, Respondent's
criminal conduct would not have come to the attention of the FBI.
However, Respondent cannot claim entrapment given that he pled guilty
to participating in a conspiracy to possess with intent to distribute
and to distribute anabolic steroids, which, at the time of his arrest,
had been ongoing for six years. See Jacobson v. United States, 503 U.S.
540, 548-49 (1992).
Moreover, the record also includes the sworn affidavit of the FBI
Special Agent who conducted the investigation which led to Respondent's
indictment and conviction. Therein, the Agent stated that recordings
(which were done on June 24, 2011) of Respondent showed him
``discuss[ing ] the pending purchase of anabolic steroids from'' a
supplier in North Alabama, as well as ``the amounts of money [two of
the co-conspirators] owe him for their steroids.'' GX 22, at 2. The
Agent further stated that a June 24, 2011 consensual video recording
``showed [Respondent] opening a portable safe and removing a vial of
liquid which resembled vials of the anabolic steroids, which were
subsequently sold to him by a co-conspirator four days later, and that
Respondent ``injected the anabolic steroids into his person.'' Id. at
3. While in his testimony Respondent asserted that his ``involvement''
was limited to buying Viagra and Cialis, I find the Agent's statements
to be sufficiently reliable to constitute substantial evidence.\10\
See, e.g., J.A.M. Builders v. Herman, 233 F.3d 1350, 1354 (11th Cir.
2000); Hoska v. United States Dep't of the Army, 677 F.2d 131, 138-39
(D.C. Cir. 1982).
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\10\ In concluding that the FBI Agent's statements are reliable
notwithstanding that they are hearsay, I note that the statements
were sworn and disclosed to Respondent in advance of the hearing,
that the Agent was available to testify (in fact, he was even called
as a witness), and that they were corroborated to some degree by
Respondent's admissions as set forth in the factual resume which was
incorporated into the plea agreement.
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Accordingly, consistent with his guilty plea, I conclude that
Respondent's involvement in the conspiracy included purchasing anabolic
steroids and distributing them to others. As did the ALJ, I also find
incredible Respondent's testimony that his involvement in the
conspiracy was limited to buying the aforesaid non-
[[Page 18718]]
controlled drugs and conclude that he does not accept responsibility
for his misconduct.\11\ I therefore reject Respondent's exception that
the ALJ failed to properly weigh the evidence.
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\11\ As noted in his Exceptions, Respondent asserts that he
accepted responsibility for his criminal conduct when testified that
``I used very poor judgment and I accepted responsibility--I knew my
wife was doing something illegal and I should not have gotten
involved with it.'' Exceptions, at 6-7 (quoting Tr. 140). However,
given that Respondent pled guilty to participating in a criminal
conspiracy that went on for six years, and that the reliable
evidence shows that he was engaged in the distribution of anabolic
steroids, his testimony suggests that what he regrets is not his
criminal conduct but having gotten caught.
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Exception 5
Respondent also takes exception to the ALJ's finding that he
violated the terms of the 2003 Memorandum of Agreement (MOA) he entered
into with DEA, pursuant to which he was granted a new registration.
Exceptions, at 10. According to Respondent, the ALJ erred in finding
that he failed to comply with the MOA when she observed that he
``credibly testified that he failed to meet the restrictions concerning
the purchasing of controlled substances and the prescribing,
dispensing, and administering of controlled substances to family
members.'' Id. (quoting R.D. at 48-49).
It is true (as Respondent argues) that there is no evidence that he
violated the MOA provision that he ``not prescribe, dispense, or
administer controlled substances to any relative.'' GX 9, at 2.
However, the MOA also required that he ``obey all federal and state
laws concerning controlled substances,'' as well as that he ``not
possess any controlled substances not prescribed for him for a
legitimate medical condition by a physician or other health care
professional other'' than himself. Id. at 1. Moreover, the evidence
also showed (and it is undisputed) that on December 21, 2004,
Respondent was subjected to a drug test and tested positive for
cocaine.\12\ GX 13, at 1; GX 17, at 53. Thus, while the ALJ erred in
referring to the MOA's provision which prohibited him from dispensing
to his relatives, her finding that Respondent tested positive for
cocaine when the MOA was in effect, see R.D. at 49, establishes that he
violated the MOA, as well as the CSA,\13\ and the order of the
Pennsylvania Board. Thus, the ALJ's error was not prejudicial.
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\12\ While cocaine has recognized medical uses, Respondent does
not maintain that he used cocaine in the course of receiving medical
treatment. Moreover, in his testimony, he admitted that he did not
``stay away from illegal drugs'' and failed to abide by the MOA. Tr.
161.
\13\ While the ALJ found that Respondent's use of cocaine
violated Alabama law, it is unclear where he was located when he
used the cocaine that gave rise to the positive drug test in
December 2004. Nor, given that this use of cocaine violated the CSA,
is it necessary to determine what State he was in when he used
cocaine.
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Exception 6
Next, Respondent argues that the ALJ erred because he was not
``allowed to discuss and/or explain his understanding of the plea
agreement regarding steroid use and [sic] his testimony regarding
steroid use.'' Exceptions, at 11. Respondent asserts that while he
``understood that there was a statement in his written plea agreement
that he had use steroids, but since his steroid use was prior to his
treatment at Talbot Recovery in 2005, and the plea he entered was only
to Count I,'' the other count being dismissed, he entered the plea. Id.
Respondent also asserts that the ALJ improperly allowed the FBI Agent
to testify that he (Respondent) ``was supposed to be self-using the
anabolic steroids.'' Id. (citing Tr. 84).\14\ Respondent argues that
this was a violation of the ALJ's pre-hearing ruling that the factual
circumstances surrounding his guilty plea were not subject to
relitigation in this proceeding and that the plea and plea agreement
``speak for themselves.'' Id. Finally, Respondent asserts that
``[t]here is nothing to show that Respondent used steroids since his
treatment in 2005.'' Id.
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\14\ Notably, the testimony cited by Respondent was given by a
DEA Investigator who merely discussed the scope of the investigation
he conducted upon being notified that the Alabama Board of Medical
Examiners had suspended his medical license. See Tr. 82-86. While
the FBI Agent also testified for the Government, he was not asked a
single question about the steroid investigation, his testimony being
limited to an allegation that Respondent had traded controlled
substance prescriptions for sex or cash and was apparently doing so
at the time he was arrested. Id. at 100, 104-05. Upon the objection
of Respondent's counsel, the ALJ barred this testimony because the
Agent did not personally observe the alleged acts and because it was
``uncharged misconduct.'' Id. at 105.
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As for Respondent's understanding of the plea agreement, Respondent
signed the factual resume in which he ``admit[ted] in open court and
under oath'' that the statement that he ``purchased, consumed, and
trafficked anabolic steroids'' was ``true and correct and constitute[d]
evidence in the case.'' GX 25, at 14. Moreover, in the plea agreement,
Respondent acknowledged that he had ``discussed the facts of the case
with his attorney, and [that] his attorney has explained to [him] the
essential legal elements of the . . . charges which ha[d] been brought
against him.'' Id. at 2.
Moreover, upon signing the plea agreement, Respondent
``stipulate[d] that the Factual Resume, incorporated herein, is true
and accurate in every respect, and that had the matter proceeded to
trial, the United States could have proved the same beyond a reasonable
doubt.'' Id. at 13. He also stated that he understood the agreement and
he had ``voluntarily agree[d] to it.'' Id. Finally, the plea agreement
provided that it ``is the complete statement of the agreement between
the defendant and the United States and may not be altered unless done
so in writing and signed by all the parties.'' Id. at 12. Accordingly,
the ALJ properly ruled that the plea agreement spoke for itself and
that Respondent could not testify as to his understanding of it.
However, as explained previously, Respondent was allowed to testify
regarding the events which led to his arrest, the indictment, and
conviction.
As for Respondent's contention that the ALJ improperly allowed the
testimony that he ``was supposed to be self-using the anabolic
steroids,'' Respondent's counsel did not object to the testimony. Tr.
84. Accordingly, I hold that Respondent has waived his objection.
Finally, Respondent contends that there is no evidence to show that
he has used steroids since he completed inpatient treatment in 2005.
Indeed, at the hearing, he repeatedly denied that he had purchased,
consumed and trafficked in anabolic steroids. Tr. 178. However,
Respondent admitted to the contrary when he ``stipulate[d] that the
Factual Resume . . . is true and accurate in every respect'' and that
Government ``could have proved the same beyond a reasonable doubt'' had
he gone to trial. GX 25, at 13. By itself, Respondent's admission in
the plea agreement provides sufficient evidence to find his denial of
having used steroids incredible. Moreover, as explained previously, as
ultimate factfinder, I find that the FBI Agent's affidavit is
sufficiently reliable to constitute substantial evidence which further
supports a finding that Respondent engaged in all three actions as set
forth in the factual resume. Thus, I also reject Respondent's
contention that there is no evidence that he has ``used steroids since
his treatment in 2005.'' Exceptions, at 11.
Exception 7
Next, Respondent takes exception to the ALJ finding, sua sponte,
``that Respondent should have notified the DEA when he decided in 2004
that he no longer had any intention of practicing medicine in
Alabama.'' R.D. at 55 (quoted in Exceptions, at 11-12). As support for
her finding, the ALJ
[[Page 18719]]
relied on Respondent's testimony that ``in 2004 he notified both his
attorney and the Alabama [Board] that he would not pursue'' the
reinstatement of his medical license, and the Board then ``rescinded
its offer to reinstate his'' license. Id. The ALJ thus found that
because Respondent ``expressed a clear intent to cease professional
practice,'' under DEA's regulations, he had ``the duty to notify'' the
Agency of this. Id. (citing 21 CFR 1301.52(a)).
Respondent contends, however, that at the time he informed the
Alabama Board that he did not intend to pursue reinstatement, he was
not then registered in Alabama. Exceptions, at 12. On this issue, the
evidence is limited to a Certification of Registration History, which
was submitted by the Chief of DEA's Registration and Program Support
Section, and which sets forth, inter alia, the date Respondent was
assigned a DEA registration, as well as the dates and addresses for
various changes of his registered location. See GX 33.
Relevant here, the Certification lists an address change on January
27, 1994 from one location to another in Russellville, Alabama and an
address change on November 16, 2005 from a location in Erie,
Pennsylvania \15\ to a location in Jacobus, Pennsylvania. Id. at 1.
Notably, the Certification contains no information as to when
Respondent changed his registered location from Russellville, Alabama
to Erie, Pennsylvania. See id. Moreover, Respondent testified that he
switched his registration back to Pennsylvania in either 1997 or 2000,
see Tr. 155-56, and the 2003 Memorandum of Agreement was issued by the
DEA Pittsburgh Office and was addressed to Respondent at an address in
Erie, thus suggesting that he was then registered in Pennsylvania.
There being no evidence that Respondent changed his registered location
to a place in Alabama between the time he entered the Memorandum of
Agreement and the 2005 address change, I find Respondent's exception
well taken.
---------------------------------------------------------------------------
\15\ While the certification does not list the State that Erie
is located in, using the Web site of the U.S. Postal Service, I have
taken official notice that the listed zip code of 16504 is for Erie,
Pennsylvania.
---------------------------------------------------------------------------
Thus, I reject the ALJ's finding that Respondent had a duty to
notify DEA when, in 2004, he decided not to pursue the reinstatement of
his Alabama medical license. However, given the evidence of
Respondent's criminal conduct and his failure to accept responsibility
for it, I conclude that the ALJ's error was not prejudicial.
Exception 8
Finally, Respondent takes exception to the ALJ's conclusions that
``Respondent has been granted numerous opportunities to act as a
responsible DEA registrant and has failed each time'' and that there
are no ``conditions that could be placed on [his] registration . . .
that would ensure that [he] would be a responsible DEA registrant.''
Exceptions, at 12. While ``Respondent acknowledges [having] made
several personal and professional mistakes,'' he asserts that ``since
his recovery from drug and alcohol addiction . . . [he] has made every
effort to remain a responsible DEA registrant.'' Id. He further argues
that ``[d]espite his felony conviction, the State Licensing Boards of
Minnesota and Alabama both agree that Respondent should be allowed to
remain medically licensed in their state.'' Id.
I reject the exception. Even acknowledging Respondent's successful
efforts to address his abuse of cocaine, the record fully supports the
ALJ's conclusion that Respondent's registration is ``inconsistent with
the public interest.'' 21 U.S.C. 823(f) & 824(a)(4). Contrary to
Respondent's understanding of his obligations as the holder of a DEA
registration, a ``responsible DEA registrant'' does not engage in
criminal activity, let alone a six-year long conspiracy to distribute
controlled substances. Nor does a ``responsible DEA registrant''
proceed to lie under oath in either an administrative or judicial
proceeding.\16\
---------------------------------------------------------------------------
\16\ Were it the case that Respondent told the truth in this
proceeding regarding his involvement in the conspiracy--which, of
course, is totally contrary to the reliable evidence--I would then
have to conclude that he provided a false statement in the criminal
proceeding when he ``stipulate[d] that the Factual Resume . . . is
true and accurate in every respect.'' GX 25, at13. In either case,
it is clear that a DEA registration cannot be entrusted to a person
who views his obligation to tell the truth with such disregard.
---------------------------------------------------------------------------
Here, even assuming that Respondent told the same disingenuous
story regarding his involvement in the criminal conspiracy to the
medical boards of Alabama and Minnesota as he told in this proceeding,
their decisions to allow him to practice medicine do not persuade me
that he should be allowed to retain his DEA registration. Cf. David A.
Ruben, 78 FR 38363, 38387 n.54 (2013) (holding that while a State can
adopt a policy which favors improving the performance of a physician
over preventing him from practicing, Congress has directed the Agency
to protect the public interest and is not bound by a State's policy).
Indeed, DEA has repeatedly held that while the possession of authority
to dispense controlled substances under the laws of the State in which
a physician practices is a prerequisite for obtaining and maintaining a
registration, ``it `is not dispositive of the public interest inquiry.'
'' Id. at 38379 n.35 (quoting George Mathew, 75 FR 66138, 66145 (2010),
pet for rev. denied, Mathew v. DEA, No. 10-73480, slip. op. at 5 (9th
Cir., Mar. 16, 2012) (internal quotations and other citations
omitted)). Rather, the Controlled Substances Act requires the Agency to
make an independent determination from that made by state officials as
to whether the granting or continuation of controlled substance
dispensing authority is consistent with the public interest. Id. at
n.35; see also Mortimer Levin, 57 FR 8680, 8681 (1992).
Here, notwithstanding Respondent's previous issues with controlled
substances, he entered into a conspiracy to violate the Controlled
Substances Act and further violated the CSA by unlawfully possessing
and distributing anabolic steroids. Because Congress did not limit the
Agency's authority to protect the public interest to those instances in
which a DEA registrant has used his registration to commit criminal
acts, it is of no consequence that Respondent did not need to use his
registration to acquire and distribute the steroids. See Michael S.
Moore, 76 FR 45867, 45868 (2011) (suspending registration based on
physician's manufacturing of marijuana); Tony T. Bui, 75 FR 49979,
49989 (2010) (revoking registration based, in part, on physician's
abuse of cocaine); David E. Trawick, 53 FR 5326 (1988) (revoking
registration based on conviction for cocaine possession; ``[a]lthough
[physician's] unlawful activities relating to controlled substances
occurred outside of his professional practice, the Administrator finds
that such activities are of a sufficient magnitude to warrant the
revocation of his'' registration).
Respondent's criminal conduct went on for six years and constitutes
a felony offense. Moreover, at the hearing, he offered the disingenuous
claims that he was entrapped or set up by his estranged wife and that
his involvement was limited to purchasing non-controlled drugs.
Accordingly, I find the ALJ's conclusion that Respondent does not
accept responsibility for his criminal conduct to be supported by
substantial evidence. I therefore reject Respondent's exception.
Summary
Notwithstanding my conclusion that several of Respondents'
exceptions are
[[Page 18720]]
well taken, I adopt the ALJ's findings that Respondent participated in
a six-year long conspiracy to violate the CSA by purchasing and
distributing anabolic steroids, that he lacked candor, and that he has
not accepted responsibility for his misconduct. I further adopt the
ALJ's ultimate finding that Respondent's registration is ``inconsistent
with the public interest.'' 21 U.S.C. 824(a)(4). Because Respondent's
misconduct is egregious and he has failed to fully acknowledge his
misconduct, I conclude that the issuance of a registration with
conditions would not adequately protect the public interest.
Accordingly, I will adopt the ALJ's recommended order.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a)(2) & (4), as well as 28 CFR 0.100(b), I order that DEA
Certificates of Registration BK1391729 and FK1953327 issued to Mark P.
Koch, D.O., be, and they hereby are, revoked. I further order that any
application of Mark P. Koch, D.O., to renew or modify either of the
above registrations, be, and it hereby is, denied. This Order is
effective May 5, 2014.
Dated: March 25, 2014.
Michele M. Leonhart,
Administrator.
Theresa Krause, Esq., for the Government.
Elizabeth McAdory Borg, Esq., for the Respondent.
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
I. Introduction
Gail A. Randall, Administrative Law Judge. This proceeding is an
adjudication pursuant to the Administrative Procedure Act, 5 U.S.C. 551
et seq., to determine whether the Drug Enforcement Administration
(``DEA'' or ``Government'') should revoke a physician's DEA
Certificates of Registration and deny any pending applications to renew
or modify such registrations, pursuant to 21 U.S.C. 823(f) and
824(a)(2), (a)(4) (2011). Without his registrations, the physician,
Mark P. Koch, D.O. (``Respondent'' or ``Dr. Koch''), would be unable to
lawfully prescribe, dispense or otherwise handle controlled substances
in the course of his medical practice.
II. Procedural Background
The Deputy Assistant Administrator of the DEA, issued an Order to
Show Cause (``Order'') dated January 16, 2013, proposing to revoke two
DEA Certificates of Registration (``COR''), pursuant to 21 U.S.C.
824(a)(2) and 824(a)(4), and deny any pending renewal or modification
applications, pursuant to 21 U.S.C. 823(f), because the Respondent's
continued registration is inconsistent with the public interest, as
that term is defined in 21 U.S.C. 823(f). [Administrative Law Judge
Exhibit (``ALJ Exh.'') 1, at 1].\17\ The Order stated that the
Respondent was registered as a practitioner in Schedules II through V,
pursuant to his DEA COR No. BK1391729,\18\ in Monroeville, Alabama.
This registration expires by its own terms on December 31, 2014. The
Respondent is also registered as a practitioner in Schedules II through
V, pursuant to his DEA COR No. FK1953327,\19\ in Virginia, Minnesota.
This registration expired by its own terms on December 31, 2012, but
the Respondent submitted a timely request to renew the registration.
[Id. at 1].
---------------------------------------------------------------------------
\17\ Administrative Law Judge (``ALJ'') Exhibits 1-6 were
admitted into the record, not for the truth of the factual matters
asserted therein, but to the extent that they represent the
procedural history of this case. [Tr. 5-7]. ALJ Exhibits 7 and 8
were similarly admitted into the record following the testimony of
Ms. McDonnell. [Tr. 54-55].
\18\ A copy of Respondent's DEA COR No. BK1391729 was admitted
into evidence without objection through the testimony of Diversion
Investigator, Martin Craig Riley. [Tr. 92; Gov't Ex. 33].
\19\ A copy of Respondent's DEA COR No. FK1953327 was admitted
into evidence without objection through the testimony of Diversion
Investigator, Martin Craig Riley. [Tr. 93-94; Gov't Ex. 34].
---------------------------------------------------------------------------
The Order outlined the past disciplinary actions taken by the
Alabama, Pennsylvania, and Minnesota medical boards, which resulted
from Respondent's long history of substance abuse involving cocaine and
alcohol. [Id. at 2]. Additionally, the Order described Respondent's
Memorandum of Agreement (``MOA'') with the DEA, which he entered into
on July 15, 2003. [Id.]. Most importantly, the Order asserted that
Respondent failed to comply with federal law relating to controlled
substances, as evidenced by his recent drug-related felony conviction
in 2012. [Id.].\20\
---------------------------------------------------------------------------
\20\ In his plea agreement, Respondent admitted that for six
years, from on or about August 2005 through on or about July 8,
2011, he willfully, knowingly, and unlawfully conspired with others
to dispense testosterone and Primobolan Depot (methenolone), both of
which are Schedule III controlled substances, in violation of 21
U.S.C. 841 (a)(1) and 846. [ALJ Exh. 1, at 2]. Pursuant to a plea
agreement, the Respondent was found guilty in the District Court for
the Southern District of Alabama, of one count of conspiring to
dispense and possession with intent to distribute anabolic steroids.
[Id. at 1-2].
---------------------------------------------------------------------------
In summary, the Deputy Assistant Administrator alleged that
Respondent's conduct from September 1997 to February 2012 violated
multiple state and federal laws. [Id.]. As a result, Respondent was
given the opportunity to show cause as to why his renewal application
should not be denied and why his existing registration should not be
revoked on the basis of such allegations. [Id.]. Respondent was
personally served with the Order to Show Cause on January 18, 2013.
[ALJ Exh. 2].
On February 5, 2013, Respondent, through counsel, timely filed a
request for a hearing in the above-captioned matter. [ALJ Exh. 3].
On May 14, 2013 through May 15, 2013, the hearing was held at the
U.S. Bankruptcy Court in Montgomery, Alabama, with the Government and
Respondent each represented by counsel. [ALJ Exh. 3-4, 6-7]. At the
hearing, counsel for the Government called five witnesses \21\ to
testify and introduced documentary evidence. [Transcript (``Tr.'') 3].
Counsel for the Respondent called eight witnesses to testify, including
the Respondent, and introduced documentary evidence. [Tr. 3, 216].
---------------------------------------------------------------------------
\21\ At the outset of the hearing, Respondent requested
sequestration of all of the witnesses. [Tr. 7-8]. I granted the
request and ordered sequestration of the witnesses, with the
exception of Mr. Martin Craig Riley and the Respondent. [Id.]
---------------------------------------------------------------------------
At the beginning of the hearing, I allowed Mr. Jim Hoover \22\
(``Mr. Hoover'') to present his arguments on the Motion to Quash
Subpoena Duces Tecum, which his colleague filed on behalf of Fay
McDonnell, the Government's first witness, and the APHP. [Tr. 9]. Mr.
Hoover argued that under Alabama Code Sec. Sec. 34-24-404 and 540-X-
13-.06, APHP must hold physician participation in the program
``absolutely confidential'' since it is protected by ``a privilege.''
[Tr. 11]. Thus, without a participating physician's consent to release
the information, APHP ``is prohibited from disclosing'' the physician's
records. [Id.]. Government counsel argued that federal law,
specifically HIPAA, applies to the physician's records. [Tr. 16].
Government counsel explained that, under HIPAA, there is a law
enforcement exception that would allow for disclosure of the protected
records. [Id.]. Mr. Hoover responded by explaining that before you can
consider the exceptions to HIPAA, it is necessary to consider the
relevant rules under preemption. [Tr. 18]. Mr. Hoover explained that
HIPAA sets a minimum floor of health information privacy
[[Page 18721]]
protections, but defaults to state laws that are more restrictive than
the federal law. [Tr. 18-19]. Mr. Hoover added that the Alabama law can
be analogized to a privilege, which can be waived with a physician's
consent. [Tr. 19-20]. Mr. Hoover then produced a written consent form
that was signed by Respondent and accompanied by a cover letter. [Tr.
25-26; ALJ Exh. 8]. The letter granted consent for the release of all
drug test results. [Tr. 28-29].
---------------------------------------------------------------------------
\22\ Mr. Hoover is associated with the law firm of Burr &
Forman. [Tr. 9]. He appeared on behalf of Cheairs Porter, who serves
as legal counsel to the Alabama Physician Health Program. [Id.].
---------------------------------------------------------------------------
Ultimately, I ruled on the subpoena, finding that: (1) Alabama
Administrative Code establishes a privilege concerning ``[a]ll
information, interviews, reports, statements, memoranda or other
documents furnished to or produced by the Alabama Physician Wellness
Committee. . . .''; (2) the privileged information may only be
disclosed ``when its release is authorized in writing by the
physician''; and (3) testimony and documents from APHP ``will be
considered within the scope of the release only.'' [Tr. 29-31].
On May 17, 2013, a Protective Order was issued to protect testimony
and documentary evidence concerning Respondent's participation in APHP
and his corresponding drug results. [ALJ Exh. 9; see Tr. 27].
After the hearing, the Government and the Respondent submitted
Proposed Findings of Fact, Conclusions of Law and Argument (``Gov't
Brief'' and ``Resp't Brief'').
III. Issue
The issue in this proceeding is whether or not the record as a
whole establishes by a preponderance of the evidence that the Drug
Enforcement Administration should revoke DEA COR Nos. BK1391729 and
FK1953327, of Mark P. Koch, D.O., as practitioner, pursuant to 21
U.S.C. 824(a)(4), and deny any pending applications to renew or modify
these registrations, pursuant to 21 U.S.C. 823(f), because to continue
Dr. Koch's registration would be inconsistent with the public interest,
as that term is defined in 21 U.S.C. 823(f). [ALJ Exh. 4; Tr. 5].
IV. Findings of Fact
A. Stipulated Facts
The parties have stipulated to the following facts:
1. The Respondent is registered with the DEA as a practitioner in
Schedules II through V pursuant to DEA registration number BK1391729 at
336 Barnes Road, Monroeville, AL 36460. DEA registration number
BK1391729 expires by its terms on December 31, 2014.
2. The Respondent is registered with the DEA as a practitioner in
Schedules II through V pursuant to DEA registration number FK1953327 at
815 12th Street North, Virginia, MN 55792. DEA registration number
FK1953327 expired by its terms on December 31, 2012. On or about
November 21, 2012, Dr. Koch submitted a timely request to renew the
registration, the registration continues in effect until final action
is taken by the DEA on the renewal application.
3. On or about February 24, 2012, the Respondent pled guilty to one
felony count of conspiracy to dispense and possess with intent to
distribute anabolic steroids. Government exhibits 22 through 26 refer
to this criminal case, that is, United States v. Mark Peter Koch,
United States District Court for the Southern District of Alabama,
criminal case number 11-00191-001-WS.
4. On or about July 7, 2011, a federal arrest warrant was executed
for the Respondent at 336 Barnes Road, Monroeville, Alabama.
5. The parties stipulate to the prior disciplinary history of
Respondent in the states of Alabama, Minnesota and Pennsylvania as
submitted in written form to the ALJ without testimony by any third
party not involved in those actions, to include:
Government Exhibits 1 through 8; 10 through 12; 14 through 21; 27
through 30; 35 and 43.
[ALJ Exh. 6; Tr. 6].
B. Respondent's Licensure and Employment
Dr. Koch holds an active, conditional license \23\ as a doctor of
osteopathy in the state of Alabama, as well as a state certificate of
registration to handle controlled substances in Schedules II through V.
[Gov't Ex. 31, at 1]. Respondent has maintained DEA COR No. BK1391729
with a registered address of 336 Barnes Road, Monroeville, Alabama
36460.\24\ [Tr. 184-85].
---------------------------------------------------------------------------
\23\ The details of Respondent's Alabama medical license and
state registration to handle controlled substances were admitted
into the record without objection. [Tr. 95; Gov't Ex. 31].
\24\ After Respondent's divorce, this address became a location
where he would see patients a few days a week. [Tr. 184]. Respondent
explained he has since returned to using this address as his
permanent residence. [Tr. 185].
---------------------------------------------------------------------------
Respondent also holds an active license \25\ as a physician and
surgeon in Minnesota. [Gov't Ex. 32, at 1]. Respondent has maintained
DEA COR No. FK1953327 with a registered address of 815 12th Street
North, Virginia, Minnesota 55792. [Tr. 186-87]. On January 31, 2013,
Respondent was not available at his registered address to accept
mail.\26\ During his testimony, Respondent explained that he uses
Monroeville, Alabama as a mailing address for both of his DEA CORs
because it remains his permanent address. [Id.].
---------------------------------------------------------------------------
\25\ The details of Respondent's Minnesota medical license and
state registration to handle controlled substances were admitted
into the record without objection. [Tr. 95-96; Gov't Ex. 32].
\26\ DI Riley was called back to testify about an envelope,
which DEA sent to Respondent's registered address, but which was
returned as ``undeliverable as addressed, forwarding order expired''
on January 31, 2013. [Tr. 269]. On cross-examination, DI Riley
admitted he first saw the envelope one day earlier when Government
counsel gave it to him. [Tr. 270]. DI Riley also acknowledged that
the physical address and mailing address for a registration can be
different. [Id.]. DI Riley clarified that the significance of the
``undeliverable'' stamp is that there should be someone at the
physical address, who recognizes Respondent and can deliver the
mail. [Tr. 271]. DI Riley agreed with Respondent's counsel, however,
that the purpose of a mailing address is to identify where mail
should be sent. [Tr. 272]. On the other hand, DI Riley asserted that
it is the duty of a DEA registrant to be located at a registered
address. [Tr. 273]. No legal basis was offered in support of this
duty. [See Gov't Brief, at 7]. Respondent's counsel objected to
admission of the envelope into evidence. [Tr. 275]. The envelope was
ultimately admitted into the record over Respondent's objection and
labeled as Government Exhibit 44. [Tr. 276; Gov't Ex. 44].
---------------------------------------------------------------------------
Dr. Koch is currently employed by Wapiti Medical Center (``WMC'').
[Tr. 120]. Although WMC is based in South Dakota, Respondent physically
works in Minnesota, taking shifts in the emergency room. [Id.].
Respondent has previously worked in several emergency rooms in
Minnesota, as well as emergency rooms located in Thomasville, Camden,
Brooke, and Luverne Hospital in Alabama. [Tr. 127-28]. After
Respondent's Alabama medical license was temporarily reinstated in
2010, he became responsible for the emergency room and for an
outpatient clinic. [Tr. 128]. He was also the director of a nursing
home. [Id.]. However, in January 2013, the hospital that owned the
clinic went bankrupt. [Id.]. Since the end of February 2013, Respondent
has primarily worked as a ``locum tenens'' in Minnesota. [Id.].
C. Respondent's History of Drug Abuse
Dr. Koch testified that he has had ``a long history of substance
abuse.'' [Tr. 120]. He estimated that this addiction lasted from 1985
to 2005. [Tr. 120]. Dr. Koch admitted on cross-examination that the
primary drugs he abused were cocaine and alcohol. [Tr. 144].
Specifically, he testified that he used cocaine four or five times a
year when he was out of the country in the Caribbean. [Tr. 144]. He
admitted to
[[Page 18722]]
consuming a few grams of cocaine on each occasion. [Tr. 145]. He also
used to drink alcohol approximately three times a week, drinking up to
eight or ten cans of beer during each episode. [Id.].
D. Respondent's Participation in Drug Monitoring Programs
Respondent has participated in mandatory and voluntary drug
monitoring programs for several years in two different states.
Respondent specifically testified that he was continuously monitored
for drug use in Pennsylvania from 1997 to 2005.\27\ [Tr. 186]. He has
also been monitored in Alabama from 2005 \28\ to the present. [Id.]. In
2007, when Respondent's Alabama license to practice medicine was
restored, Respondent testified that he was required to participate in
the Alabama Physician Health Program (``APHP'') until the medical
board's order expired in July 2010. [Tr. 121]. After the order expired,
Dr. Koch said he voluntarily remained in APHP. [Id.]. Respondent
recalled that from 2010 to 2012, he voluntarily participated in drug
screening by urine analysis. [Tr. 123-24].
---------------------------------------------------------------------------
\27\ For purposes of clarification, documentary evidence of
Respondent's drug-testing through PHM in Pennsylvania actually
indicate the results of drug tests as late as June 2006. [Gov't Ex.
17, at 56].
\28\ When Respondent consented to the release of all drug-
testing records at APHP, Respondent said he consented to all results
from 2005 to 2011, since it was his impression that these were the
only test results APHP has on him. Government counsel tried to show
that Respondent did not consent to release of all of the records
[see ALJ Exh. 8], however, Respondent credibly testified that he did
not participate in APHP prior to 2005. [Tr. 189]. Respondent
clarified that he has continuously participated in APHP from 2005 to
the present, sometimes voluntarily. [Tr. 190].
---------------------------------------------------------------------------
Under the APHP monitoring program, Respondent explained that he
could not select the type of testing conducted, since this decision was
made by the supervising physician, Dr. Skipper. [Tr. 168]. Respondent
added that he similarly lacked control over when the testing occurred
because the date on which he had to submit urine samples was randomly
generated by a computer. [Tr. 125, 137]. In the past, the Respondent
said he had to ``make arrangements'' while working a shift in order to
ensure that his urine sample made it to the clinic for testing by the
deadline of four o'clock in the afternoon. [Tr. 138]. He testified that
he had never missed a random drug screening. [Tr. 122, 138]. This
testimony, however, was squarely refuted by Respondent's drug-testing
results, which showed he missed twelve drug tests from July 2002 to
February 2005. [Gov't Ex. 17, at 53-55]. Respondent also testified that
he had submitted all of the quarterly reports required by worksite
monitors. [Tr. 137]. No documentary evidence in the record refutes this
claim. During his testimony, Respondent added that he generally did not
know the results of each test, but explained that he would have been
notified by APHP, if the results of the test were positive. [Tr. 124].
Fay Donnell (``Ms. McDonnell'') \29\ confirmed that Respondent
participated in APHP drug-testing both voluntarily and in response to
the conditions of state licensing board orders. Ms. McDonnell
specifically testified that Respondent came under agreement with APHP
to participate in random drug-testing in 2005. [Tr. 39]. Records
associated with Respondent's participation in APHP have been maintained
by the program coordinator.\30\ [Tr. 34]. The APHP records include the
results of any positive or negative drug tests, as well as any missed
drug tests or ``no-show[s].'' [Tr. 38]. However, Ms. McDonnell
explained that APHP only has complete records from 2008 to the present.
[Tr. 39]. The records presently available to APHP from 2005 to 2008 are
only positive test results due to a change in the drug-testing
contract. [Tr. 40]. According to the records, Respondent does not have
any positive results in his file for this time period. [Id.].
---------------------------------------------------------------------------
\29\ As the program coordinator of APHP, Ms. McDonnell
maintained physician records, scanned documents for case files, took
phone calls, and coordinated the physicians' schedules around their
drug-testing requirements. [Tr. 34-35].
\30\ Fay McDonnell is the former program coordinator of APHP.
[Tr. 34]. She served in this role from March 2007 to January 2013.
[Tr. 36]. She retrieved Respondent's record in response to the
subpoena duces tecum. Ms. McDonnell currently works as a case
manager of individual physicians in APHP. [Tr. 35].
---------------------------------------------------------------------------
Ms. McDonnell recalled that Respondent consented to the release of
records from 2005 to the present. [Tr. 44].\31\ Ms. McDonnell testified
that the date entered into the computer to fulfill the subpoena request
was 1994, but the first record that appeared in Respondent's file was
January 25, 2008. [Id.]. Ms. McDonnell credibly testified that in
anticipation of this hearing, she made two certifications of documents
from Respondent's APHP file. The first certification \32\ occurred on
June 1, 2012 and the second certification \33\ occurred on May 1, 2013.
[Tr. 41]. The second certification corrected a previous error where Ms.
McDonnell had incorrectly stated that Respondent's first anabolic
steroid test \34\ on July 18, 2011 \35\ test was a hair test, not a
urine analysis. [Tr. 46; see also Resp't Ex. 1(A), at 3]. The error was
brought to Ms. McDonnell's attention by Government counsel. [Tr. 46].
Ms. McDonnell testified that she did not decide what type of test
should be ordered for each physician. [Tr. 47-48]. She explained,
however, that she could determine what test had been administered from
the documentation in the case file. [Tr. 48]. When commenting
specifically on Respondent's test for steroids, which she initially
mischaracterized as a hair sample, Ms. McDonnell explained that
Respondent had not been able to provide a sufficient hair sample for
the anabolic steroid test, so it was reordered \36\ as a urine
analysis. [Tr. 49-50; see also Resp't Ex. 1(B), at 3, 7].\37\ Ms.
McDonnell's testimony was sufficiently detailed, consistent, and
plausible to be fully credited in this recommended decision.
---------------------------------------------------------------------------
\31\ The release requested ``all drug screens that [the
Respondent] has passed since voluntarily enrolling into the
program.'' [ALJ Exh. 8]. However, the record demonstrates that the
Respondent had a positive drug test in December of 2004. [Gov't Ex.
17, at 48]. Also, positive test results from 2001 to 2005 and missed
urine tests were documented. [Id. at 49-56].
\32\ The original certification was admitted into evidence
without objection. [Tr. 51; Resp't Ex. 1(A)]. Respondent's Exhibit
1(A) is the original copy of Respondent's records from APHP that Ms.
McDonnell certified. Ms. McDonnell admitted during her testimony
that this was the certification the Alabama Commission relied on in
2012 when hearing Respondent's case. [Tr. 47]. I will deny the
Government's motion to exclude this exhibit from evidence, since I
find Ms. McDonnell's testimony on the document, her error, and the
correction credible. [Gov't Brief, at 36, 38].
\33\ The revised certification was admitted into evidence
without objection. [Tr. 51; Resp't Ex. 1(B)]. Respondent's Exhibit
1(B) is the updated copy of Respondent's records from APHP that Ms.
McDonnell certified. Ms. McDonnell testified that she certified the
second set of documents, even though she no longer served as the
program coordinator, since she made the error on the first
certification. [Tr. 42-43]. I will deny the Government's motion to
exclude this exhibit from evidence, since I find Ms. McDonnell's
testimony on the document, her error, and the correction credible.
[Gov't Brief, at 36, 38].
\34\ From the record and Ms. McDonnell's testimony, July 18,
2011 appears to be the first date that Respondent was tested for
anabolic steroids. [Tr. 52; see also Resp't Ex. 1(B), at 7]. This
occurred just over a week after Respondent was arrested on drug-
related felony charges.
\35\ Respondent incorrectly recalled that he was first tested
for steroids through a hair sample in January or February of 2013 by
APHP. [Tr. 123-24].
\36\ Respondent incorrectly testified that he provided a hair
sample on two occasions for the steroid test, explaining that the
first test resulted in an insufficient sample and the second test to
his knowledge was negative. [Tr. 124].
\37\ Respondent clarified on recross-examination that in January
of 2012, while he was under voluntary contract with the physician
monitoring program, he was asked to give a hair sample. [Tr. 202].
Respondent maintains that he had shaved his whole body since at
least 1998, but as long ago as the 1980's. [Tr. 204]. Furthermore,
there was not a lab nearby that would do the fingernail testing as
an alternative. [Tr. 202-03]. Respondent says he has since grown
chest hair in order to comply with the January 2012 Alabama Board
Order. [Tr. 203].
---------------------------------------------------------------------------
[[Page 18723]]
E. Federal Investigations of Respondent
1. Drug Enforcement Administration (DEA)
In February 2000, Kurt Dittmer (``Supervisor Dittmer'') \38\
investigated Respondent's renewal application for his Pennsylvania
registration, since Respondent had checked ``yes'' to whether the
applicant had previous ``liability issues'' with licensing
organizations or law enforcement. [Tr. 58]. Dr. Koch's positive
response to the liability question on his application concerned his use
of cocaine while on vacation in the Caribbean. [Tr. 59]. During a phone
conversation, Respondent told Supervisor Dittmer that he had tested
positive for his cocaine use through a urine analysis. [Tr. 60].
Respondent told Supervisor Dittmer that his state of Pennsylvania
medical license was subsequently put under active suspension. [Id.]
\39\ Once Respondent indicated he was represented by an attorney,
Supervisor Dittmer said he contacted the attorney, Grant Palmer, for
further questioning. [Tr. 60-61].
---------------------------------------------------------------------------
\38\ Supervisor Dittmer has been employed by the DEA for 18
years. [Tr. 56]. He was initially trained as a Diversion
Investigator for the DEA, but returned to Quantico, Virginia in 2005
to train as a Group Supervisor. [Tr. 57]. Supervisor Dittmer is
responsible for overseeing 20,000 registrants in 27 counties of
western Pennsylvania. [Id.]. The registrants include methadone
clinics, physicians, dentists, and pharmacies. [Id.].
\39\ Respondent's attorney at the time of the investigation
helped confirm that Respondent did not write any prescriptions for
controlled substances while his medical license was under
suspension. [Tr. 64].
---------------------------------------------------------------------------
Supervisor Dittmer credibly testified that at the time of the
investigation, Respondent had a valid medical license in Pennsylvania,
but explained that the license was subject to probationary conditions.
[Tr. 61].\40\ At this point in the investigation, Supervisor Dittmer
said that he memorialized his findings in a report and renewed
Respondent's registration. [Tr. 64]. DEA was satisfied that the
probationary conditions, which involved monitoring through drug-
testing, were sufficient protections to support renewal of Respondent's
registration. [Tr. 65]. Supervisor Dittmer's testimony was sufficiently
detailed, consistent, and plausible to be fully credited in this
recommended decision.
---------------------------------------------------------------------------
\40\ Supervisor Dittmer testified that he told Respondent's
attorney during the investigation that while Respondent's medical
license had been suspended, Respondent should have surrendered his
registration. [Tr. 62]. Supervisor Dittmer did not provide the legal
basis for such testimony. I find it noteworthy that neither the
statutes, nor DEA regulations define such a responsibility, as
described by Supervisor Dittmer, which requires a registrant to
surrender their registration in the event that their medical license
is suspended.
---------------------------------------------------------------------------
In 2003, Frank Younker (``Supervisor Younker'') \41\ came into
contact with Respondent when he was asked by the Philadelphia office to
investigate an application filed by the Respondent for renewal of his
Pennsylvania registration. [Tr. 68]. Similar to Supervisor Dittmer's
testimony, Younker's investigation began when Respondent checked
``yes'' to the liability question on the application. [Id.]. Respondent
indicated on the application that he had a history of drug abuse and
was currently participating in a monitoring agreement with the board of
medicine in Pennsylvania. [Id.].
---------------------------------------------------------------------------
\41\ Supervisor Younker has been employed with DEA for 28 years.
[Tr. 67]. He has worked as a Senior Investigator and Group
Supervisor out of the Cincinnati Resident Office. [Id.]. His
responsibilities include attending training sessions at Quantico,
Virginia, conducting investigations, and interviewing registrants.
[Tr. 68].
---------------------------------------------------------------------------
As part of the investigation, Supervisor Younker contacted the
Pennsylvania State Board of Osteopathic Medicine (``SBOM''). [Tr. 69].
The SBOM indicated that they were ``acting on behalf of something that
was done in Alabama.'' [Tr. 70]. Specifically, Younker added that it
concerned Respondent's cocaine and alcohol abuse. [Id.]. Since
Supervisor Younker was aware of Supervisor Dittmer's prior
investigation, Younker testified that he decided to offer Respondent
the opportunity to enter into a memorandum of agreement (``MOA'') \42\
with the DEA concerning his application. [Id.].
---------------------------------------------------------------------------
\42\ Government Exhibit 9 was identified by Supervisor Younker
during his testimony as the Memorandum of Agreement. [Tr. 71]. The
MOA was signed by Dr. Koch on June 30, 2003 and signed by Diversion
Program Manager for the Philadelphia Field Division, Ann L. Carter,
on July 15, 2003. [Gov't Ex. 9; Tr. 74, 77]. Government Exhibit 9
was admitted into evidence without objection. [Tr. 76].
---------------------------------------------------------------------------
Supervisor Younker explained that his decision to draft an MOA was
prompted by Respondent's past history of drug use and non-compliance.
[See Tr. 70-71]. In drafting the MOA, Younker credibly testified that
he took into account Dr. Koch's past history of drug use, non-
compliance with monitoring, adverse actions by state medical boards,
and current employment status. [Tr. 72]. Supervisor Younker said of the
MOA, ``[i]t's not like a cookie cutter document.'' [Id.].
Under the MOA, Respondent was not only required to abide by all
federal and state laws, he was also required to abide by monitoring and
treatment programs in Pennsylvania and maintain logs of all controlled
substances he prescribed for two years, which would allow DEA to
identify any unusual prescribing habits.\43\ [Tr. 72, 77-78].
Additionally, Respondent was prohibited under the MOA from possessing
any controlled substances, unless he had a legitimate medical
prescription. [Tr. 73]. He was also prohibited from prescribing,
dispensing or administering controlled substances to a family member
and prohibited from purchasing or prescribing controlled substances for
himself. [Id.].
---------------------------------------------------------------------------
\43\ Supervisor Younker testified that he would not actively
seek out information concerning Respondent's unusual prescribing
habits. [Tr. 79]. He would only rely on information that was
provided to him by Respondent, the required log, or the prescription
monitoring program (``PMP''). [Tr. 80].
---------------------------------------------------------------------------
While the MOA was in effect, from July 15, 2003 through July 15,
2005, Supervisor Younker was not aware of any violations committed by
Respondent when Younker left the office in November 2004. [Tr. 75, 78;
Gov't Ex. 9, at 2]. However, during his testimony, Respondent was shown
the MOA written by Supervisor Younker in 2003. [Gov't Ex. 9; Tr. 161].
Respondent admitted that he, prior to 2005, failed to comply with the
conditions of the MOA that prohibited him from possessing or purchasing
controlled substances for personal or office use and that also
prohibited him from prescribing, dispensing, or administering
controlled substances to relatives. [Gov't Ex. 9, at 1-2; Tr. 161].
Supervisor Younker's testimony was sufficiently detailed, consistent,
and plausible to be fully credited in this recommended decision.
In April 2012, Martin Craig Riley (``DI Riley'') \44\ began an
investigation of Respondent on the basis of a notice he received from
the Alabama State Board of Medical Examiners, Medical Licensure
Commission (``SBME''), which indicated that Respondent's Alabama
medical license \45\ had been temporarily suspended. [Tr. 82.]. The
suspension was in response to Respondent having pled guilty to a
``conspiracy to distribute and possess with intent to distribute
anabolic steroids'' \46\ DI Riley confirmed this information from
public records on the board of medical examiner's Web site
[[Page 18724]]
and from its investigator, William Perkins. [Tr. 83].
---------------------------------------------------------------------------
\44\ DI Riley has spent 25 years as a Diversion Investigator
with DEA. [Tr. 81-82]. His responsibilities include conducting
regulatory, civil and criminal investigations arising out of
individuals and corporations who are registered with the DEA. [Tr.
82].
\45\ Government Exhibit 31 contains the details of Respondent's
Alabama medical license. [Tr. 94]. This exhibit was identified by DI
Riley and admitted into evidence. [Tr. 94-95].
\46\ [Gov't Ex. 25, at 1]. Government Exhibits 22-26 are
stipulated to and admitted into evidence. [Tr. 90].
---------------------------------------------------------------------------
During the investigation, DI Riley testified that he also
discovered Respondent held DEA registrations in Alabama and
Minnesota.\47\ [Tr. 84]. DI Riley clarified that Respondent no longer
had a DEA registration in Pennsylvania, even though he maintained an
active medical license in Pennsylvania. [Tr. 84, 96]. Additionally, DI
Riley explained that he had obtained orders from the Pennsylvania
Medical Board \48\ concerning Respondent's cocaine use, orders from the
Alabama Medical Board \49\ concerning Respondent's cocaine and alcohol
abuse, and an order from the Minnesota Medical Board \50\ concerning
Respondent's felony conviction involving anabolic steroids.\51\
Attached to one of the orders in Pennsylvania was a letter \52\ from
Dr. Koch to Kevin Knight, program director, at the Bureau of
Professional and Occupational Affairs in Pennsylvania. [Tr. 87]. In the
letter, Respondent admitted to a positive drug screen in December 2004.
[Gov't Ex. 13; Tr. 87]. DI Riley credibily testified that the
monitoring required by the state medical board orders involved random
drug-testing, and the Alabama Order required testing through hair
samples. [Tr. 85]. DI Riley's testimony was sufficiently detailed,
consistent, and plausible to be fully credited in this recommended
decision.
---------------------------------------------------------------------------
\47\ Dr. Koch had explained to DI Riley he wanted to obtain a
DEA registration in Minnesota so that he could work as a locum
tenens physician in Minnesota. [Tr. 86].
\48\ Government Exhibits 2-4, 7-8, 17, 20, 30 are Pennsylvania
Medical Board orders that were stipulated to by the parties and
admitted into evidence. [Tr. 89].
\49\ Government Exhibits 1, 5, 6, 12, 14-16, 18-19, 21, 27-29
are Alabama Medical Board orders that were stipulated to by the
parties and admitted into evidence. [Tr. 89]. Similarly, Government
Exhibits 10 and 11 are additional orders stipulated to and admitted
into evidence. [Tr. 91-92].
\50\ Government Exhibit 43 is a Minnesota Medical Board order
stipulated to by the parties and admitted into evidence. [Tr. 89]. A
professional profile of Respondent is available on the Minnesota
Board of Medical Practice's Web site, which includes the status of
his license. This information was proposed Government Exhibit 32.
[Tr. 95-96]. It was identified by DI Riley through his testimony and
admitted into evidence without objection. [Id.; Gov't Ex. 32].
\51\ DI Riley indicated that part of the charge, which
Respondent pled guilty to, was ``self-using the anabolic steroids.''
[Tr. 84]. Even though Count I of the indictment makes no mention of
consumption of anabolic steroids [Gov't Ex. 23, at 1], such conduct
is included in the factual resume of the indictment [Gov't Ex. 25,
at 14]. ``Mark Peter Koch, a physician practicing in Camden, Alabama
and Monroeville, Alabama, purchased, consumed, and trafficked
anabolic steroids.'' [Gov't Ex. 25, at 14]. The factual resume also
reveals that Respondent: (1) discussed pending purchases of anabolic
steroids with co-defendants; (2) contributed money to purchases of
steroids; (3) acquired drugs that appeared to be manufactured in
``underground labs''; and (4) acquired drugs that exceeded 300
grams. [Id.].
\52\ During his testimony, DI Riley identified Government
Exhibit 13 as a letter sent by Dr. Koch. [Tr. 87]. This exhibit was
admitted into evidence, without objection. [Id.; Gov't Ex. 13].
---------------------------------------------------------------------------
2. Federal Bureau of Investigation (FBI)
Jeffrey Young (``Agent Young'') \53\ credibly testified that he was
involved in Dr. Koch's arrest for drug-related felony charges. On July
7, 2011, Agent Young was at the Mobile, Alabama headquarters
communicating with both management and the arrest team by telephone
when Respondent was arrested for felony charges related to anabolic
steroids. [Tr. 101].\54\ Agent Young's testimony was sufficiently
detailed, consistent, and plausible to be fully credited in this
recommended decision.
---------------------------------------------------------------------------
\53\ Agent Young has worked for the Federal Bureau of
Investigation (FBI) for over nine years as a special agent. [Tr.
98]. His responsibilities include investigating crimes involving
white collar, violent crime, and crimes with national security
issues. [Tr. 99].
\54\ I ruled that any testimony concerning the uncharged
misconduct at the time of the arrest is inadmissible because the
witness has no personal knowledge of the conduct. [Tr. 102-03, 105].
---------------------------------------------------------------------------
F. Respondent's State Disciplinary Actions
1. Alabama State Board of Medical Examiners; Licensure Commission
In 1997, Respondent voluntarily agreed to abstain from alcohol and
drugs, as well as participate in a drug-testing program that complied
with the aftercare requirements of Talbot Recovery Campus (``Talbot'').
[Gov't Ex. 1, at 1-2]. The Alabama State Board of Medical Examiners
(``SBME'') maintained the discretion to remove these restrictions from
Respondent's license, if he demonstrated compliance. [Id. at 1].
However, in the following years, he failed to do so. [Tr. 146].
On January 25, 2000, the SBME filed an administrative complaint
\55\ against Dr. Koch in response to disciplinary actions taken against
him in Pennsylvania and evidence indicating Respondent had violated the
voluntary restrictions placed against his medical license in Alabama.
[Gov't Ex. 5, at 1]. In the complaint, the SBME requested revocation of
Respondent's medical license. [Id. at 4].
---------------------------------------------------------------------------
\55\ This Administrative Complaint was admitted into the record
without objection. [Tr. 89; Gov't Ex. 5].
---------------------------------------------------------------------------
In June of 2000, the SBME made factual findings and legal
conclusions, which supported the revocation of Respondent's medical
license.\56\ [Gov't Ex. 6, at 3; Tr. 155]. As a result, Respondent lost
his license to practice medicine in the state of Alabama.
---------------------------------------------------------------------------
\56\ Government counsel asked Respondent whether he notified DEA
that he no longer had state authority to handle controlled
substances in Alabama. [Tr. 155]. Respondent said he had not,
because his DEA registration was in Pennsylvania at the time. [Id.].
Respondent believes he switched his DEA registration to Alabama most
recently in 2000. [Id.]. Again, Government has not provided the
legal basis for a registrant's responsibility to notify the DEA of
his loss of state authority to prescribe controlled substances.
---------------------------------------------------------------------------
Then, in March 2004, the Alabama SBME issued the Respondent an
Order to Show Cause,\57\ which asked Respondent to ``show cause, if any
he has, why [his] request for reinstatement [of his medical license]
should not be denied.'' [Gov't Ex. 10; Tr. 162]. Respondent testified
that at the time of this Order and corresponding hearing, his DEA COR
was in Pennsylvania and he had no intention of maintaining an Alabama
medical license for purposes of a DEA COR registered in Alabama. [Tr.
162-63].\58\
---------------------------------------------------------------------------
\57\ The Order to Show Cause was admitted into the record
without objection. [Tr. 92; Gov't Ex. 10].
\58\ Respondent added that his DEA registration was in
Pennsylvania from 1997 until 2007. [Tr. 163]. However, in previous
testimony, he said he had reassigned his DEA registration to Alabama
as recent as 2000. [Tr. 155]. I have noted the inconsistency in
Respondent's testimony, but I do not find that it affects his
credibility.
---------------------------------------------------------------------------
Later, in May 2004, the Alabama SBME ordered \59\ reinstatement of
his medical license. However, conditions were ordered, to include that
the Respondent is to participate in APHP, which included drug-testing
for controlled substances and alcohol using hair samples. [Gov't Ex.
11, at 1]. Respondent explained that he did not comply with this Order
since he decided not to pursue an Alabama medical license. [Tr. 164].
Respondent also explained that he never filled out the paperwork in
order to obtain a license in Alabama. [Id.]. He alleged that he told
both his attorney and the Alabama SBME that he was not going to pursue
a license at that time. [Tr. 165]. Consequently, Respondent's privilege
to have an Alabama license was withdrawn \60\ as a result of
Respondent's failure to comply with the May 2004 Order. [Gov't Ex. 12;
Tr. 165].
---------------------------------------------------------------------------
\59\ This Order was admitted into the record without objection.
[Tr. 92; Gov't Ex. 11].
\60\ This Order was admitted into the record without objection.
[Tr. 89; Gov't Ex. 12].
---------------------------------------------------------------------------
When testifying on this issue, Respondent admitted that prior to
2005 he was in a ``power struggle with the Alabama Physician Recovery
Network and the Board of Medicine'' because he was not cooperative and
not willing to acknowledge he had a drug problem. [Gov't Ex. 8, at 5 ]
13; Tr. 158]. During this time, the Alabama SBME remarked that
Respondent did not see his ``use of
[[Page 18725]]
illegal drugs and other mood altering substances as inappropriate.''
[Gov't Ex. 8, at 9]. Respondent credibly admitted in his testimony that
he was told multiple times to stop using illegal drugs prior to 2005,
but he failed to comply. [Tr. 160].
When Respondent was released from a rehabilitation program in 2005,
he sought reinstatement of his medical license in Alabama. [Gov't Ex.
14; Tr. 167]. The state of Alabama again issued an Order to Show Cause
\61\ on May 26, 2005 for Respondent to appear and explain why his
reinstatement should not be denied. [Gov't Ex. 14, at 1; Tr. 167].
Respondent attended the administrative hearing, which took place on
September 28, 2005. [Gov't Ex. 15; Tr. 167]. In an order \62\ issued
October 4, 2005, the Alabama SBME concluded that Dr. Koch had ``failed
to present sufficient evidence to warrant the reinstatement of his
license.'' [Gov't Ex. 15, at 1].
---------------------------------------------------------------------------
\61\ The Order to Show Cause was admitted into the record
without objection. [Tr. 89; Gov't Ex. 14].
\62\ The Order was admitted into the record without objection.
[Tr. 89; Gov't Ex. 15].
---------------------------------------------------------------------------
Nonetheless, on October 2, 2006, an order \63\ reinstated
Respondent's medical license on the condition that Respondent maintain
an indefinite contract with APHP. [Gov't Ex. 16; Tr. 168]. According to
the October 2006 Order, Respondent was to provide hair samples,
although Respondent testified that in reality the method of drug-
testing was up to Dr. Skipper at APHP. [Gov't Ex. 16, at 1; Tr. 168,
200].\64\
---------------------------------------------------------------------------
\63\ The Order was admitted into the record without objection.
[Tr. 89; Gov't Ex. 16].
\64\ During this part of the testimony, Government counsel tried
to prove Respondent's non-compliance with the Board Order since he
did not provide hair samples for drug-testing. [See Tr. 168-70].
However, I find this line of inquiry carries little weight since
Respondent provided urine samples in accordance with the
requirements of Dr. Skipper's program at APHP and the Alabama SBME
mandated Respondent's participation in APHP. [Gov't Ex. 16, at 1;
Tr. 168, 200].
---------------------------------------------------------------------------
On June 28, 2007, the Alabama SBME issued an order \65\ indicating
that an administrative hearing took place and Respondent had been in
attendance. [Gov't Ex. 18, at 1]. Furthermore, the SBME found that
Respondent's request for amendment of his license ``is due to be
granted.'' [Id.]. Respondent was conditionally permitted to practice
medicine in Frisco City, Alabama for Tri County Medical Center. [Id.].
---------------------------------------------------------------------------
\65\ The Order was admitted into the record without objection.
[Tr. 89; Gov't Ex. 18].
---------------------------------------------------------------------------
On July 30, 2008, all restrictions were removed from Respondent's
Alabama medical license through an order.\66\ [Gov't Ex. 19]. However,
the order clarified that Respondent was nonetheless required to
maintain a contract with APHP. [Id.]. The order also required random
drug-testing through the use of hair samples. [Id.].
---------------------------------------------------------------------------
\66\ The Order was admitted into the record without objection.
[Tr. 89; Gov't Ex. 19].
---------------------------------------------------------------------------
On July 13, 2010, the Alabama SBME issued an order \67\ that lifted
all restrictions from Respondent's license. [Gov't Ex. 21; Tr. 175].
Most noteworthy was the condition to participate in APHP indefinitely,
which was removed so that Respondent held a ``full unrestricted
licenses to practice medicine in Alabama.'' [Gov't Ex. 21; Tr. 175].
---------------------------------------------------------------------------
\67\ This Order was admitted into the record without objection.
[Tr. 89; Gov't Ex. 21].
---------------------------------------------------------------------------
However, on April 18, 2012, the Alabama SBME ``immediately
suspended'' \68\ Dr. Koch's license to practice medicine and osteopathy
as a result of his felony conviction. [Gov't Ex. 27, at 1; Tr. 179-80].
The Alabama SBME subsequently placed Respondent on ``indefinite
probation,'' which required Respondent to once again ``maintain,
indefinitely, a contract with the Alabama Physicians Health Program.''
[Gov't Ex. 29, at 4; Tr. 180-81]. The order \69\ specified that ``[i]f,
at any time, Dr. Koch shall have insufficient hair and/or nails to
perform a valid test, he will, in such event, be considered to have had
a positive test and he will be referred to the Medical Licensure
Commission for appropriate action.'' [Gov't Ex. 29, at 4]. After the
Respondent's arrest on July 7, 2011, he voluntarily called the APHP and
requested a drug test for steroids. [Tr. 190-91]. This test was
negative. [Resp't Ex. 1(B), at 3; Tr. 124].
---------------------------------------------------------------------------
\68\ The Order was admitted into the record without objection.
[Tr. 89; Gov't Ex. 27]. Respondent testified that he did not report
the suspension to the DEA. [Tr. 180]. Respondent's initial hearing
date of June 20, 2012 was extended to July 25, 2012, through an
Order of Continuance, which was admitted into the record. [Tr. 89;
Gov't Ex. 28].
\69\ This Order was admitted into the record without objection.
[Tr. 89; Gov't Ex. 29]. Under this Order Respondent was fined
$10,000.00 and required to pay the administrative fees associated
with the hearing. [Gov't Ex. 29, at 4].
---------------------------------------------------------------------------
Before returning to the practice of medicine, the April 2012 Order
also required Respondent to seek ``prior approval'' for ``a detailed
plan of practice'' from the Alabama SBME. [Id.]. Respondent testified
that he submitted such plan and it was approved. [Tr. 181-82].
Respondent indicated that the plan involved him practicing family and
emergency medicine in Mobile, Alabama and practicing as a locum tenens
for emergency rooms in Minnesota. [Id.].
2. Pennsylvania State Board of Osteopathic Medicine
In 1998, the Pennsylvania State Board of Osteopathic Medicine
(``SBOM'') issued a consent agreement and order \70\ acknowledging the
voluntary restrictions Respondent had agreed to in Alabama as a result
of his cocaine use. [Gov't Ex. 2, at 2]. Even though Respondent's
license could have been suspended for three years because of
disciplinary actions against his license in Alabama, the SBOM of
Pennsylvania ruled that the suspension would be ``stayed in favor of
probation.'' [Id.].
---------------------------------------------------------------------------
\70\ This Order was admitted into evidence without objection.
[Tr. 89; Gov't Ex. 2].
---------------------------------------------------------------------------
However, in 1999, the stay was ``VACATED'' and the probationary
period ``TERMINATED'' in an order \71\ concerning Dr. Koch's medical
license in Pennsylvania.\72\ [Tr. 148-49; Gov't Ex. 3]. Respondent was
ordered to ``immediately cease practicing the profession'' for a
duration of three years. [Gov't Ex. 3, at 1]. When asked about the
order during his testimony, Respondent did not recall the details of
the suspension, explaining that he was never even informed of the
details regarding the positive drug test that he believes triggered the
suspension. [Gov't Ex. 3, at 6; Tr. 150]. Respondent said he thought
the positive drug was caused by an injection of pain medication \73\
into his back during a visit to the emergency room. [Tr. 149].
Respondent's confusion is easily resolved by the factual findings in a
subsequent Consent Agreement and Order,\74\ which indicated that
Respondent tested positive for cocaine on September 29, 1999 in
violation of the SBOM's 1998 Order. [Gov't Ex. 3, at 6; Gov't Ex. 4, at
3; Tr. 150]. The Consent Agreement and Order also indicated that
Respondent was required to enroll in the Talbot for a minimum of 96
hours of assessment. [Gov't Ex. 4, at 3-4]. Also, he was again ordered
to stop using controlled substances. [Gov't Ex. 4, at 10]. Respondent
credibly admitted during his testimony that he failed to comply. [Tr.
153-54]. The
[[Page 18726]]
Respondent did not report this suspension to the DEA. [Tr. 148-49].
---------------------------------------------------------------------------
\71\ This Order was admitted into evidence without objection.
[Tr. 89; Gov't Ex. 3].
\72\ Government counsel asked Respondent whether he notified DEA
of the suspension. [Tr. 149]. Respondent replied in the negative.
[Id.]. Government has not provided the legal basis for a
registrant's responsibility to notify the DEA of a suspended medical
license. Thus, the relevance of this question is unclear.
\73\ The Order indicates that the ``completely synthetic
drugs,'' which Respondent said were injected into his back for pain,
``would not register as cocaine metabolites on a urine screen
test.'' [Gov't Ex. 3, at 7].
\74\ This Order was admitted into evidence without objection.
[Tr. 89; Gov't Ex. 7].
---------------------------------------------------------------------------
On July 3, 2001, an adjudication \75\ and order \76\ by the
Pennsylvania SBOM suspended Respondent's medical license indefinitely,
with the possibility of it being restored should Respondent comply with
the terms and conditions of the Consent Agreement and Order. [Gov't Ex.
7, at 8; Gov't Ex. 4; Tr. 156]. Respondent explained during his
testimony that his attorney at the time had negotiated with the
Pennsylvania SBOM and it was his understanding that his stay at Talbot
was a sufficient program to satisfy the probationary terms. [Tr. 156-
57]. In other words, he did not believe he had to participate in
further drug-monitoring after his assessment at Talbot, even though it
was described in detail throughout the terms of the Consent Agreement
and Order. [See Gov't Ex. 4, at 6].
---------------------------------------------------------------------------
\75\ An administrative hearing was held on April 4, 2001. [Gov't
Ex. 7, at 2].
\76\ Government counsel asked Respondent if he had notified DEA
of the indefinite suspension of his medical license, to which the
Respondent said he did not recall providing the notification. [Tr.
157]. Again, the basis for such a responsibility is unclear.
---------------------------------------------------------------------------
As a result, in December 2001, after Respondent failed to comply
with the extent of the probationary terms outlined in the Consent
Agreement and Order,\77\ the Pennsylvania SBOM ordered \78\ that
Respondent's ``license to practice osteopathic medicine and surgery''
be ``indefinitely suspended,'' but indicated that ``[s]uch suspension
is to be immediately stayed in favor of not less than five years
probation. . . .'' [Gov't Ex. 8, at 11]. The terms of the probation
required Respondent to: (1) abide by state and federal laws; (2)
cooperate with professional organizations; (3) submit truthful
information to the SBOM; (4) avoid leaving the Commonwealth of
Pennsylvania for more than 20 days at a time; (5) enroll in a new
monitoring program or notify the local medical board if Respondent
moves jurisdictions; (6) notify the PHMP of criminal charges against
him; and (7) notify the PHMP of changes to his address or contact
information. [Id. at 11-13]. The Order indicated that upon successful
completion of the probationary term, Respondent could petition the SBOM
to obtain an unrestricted license to practice medicine in Pennsylvania.
[Gov't Ex. 8, at 23].
---------------------------------------------------------------------------
\77\ [Gov't Ex. 4].
\78\ This was contained in an adjudication and order, which was
admitted into the record without objection. [Tr. 89; Gov't Ex. 8].
---------------------------------------------------------------------------
Several years later, Dr. Koch wrote a letter dated May 19, 2005 to
the Pennsylvania Bureau of Professional and Occupational Affairs, of
the PHMP Unit II. [Gov't Ex. 13; Tr. 166]. In the letter Dr. Koch
admitted to a ``long standing problem with substance abuse (alcohol and
cocaine)'' and explained that for years he had ``been in denial of this
problem.'' [Gov't Ex. 13, at 1]. Respondent further indicated that he
``recently realized'' the problem and that he ``need[s] professional
help.'' [Id.]. Respondent associated this turning point with a positive
drug screen in December 2004.\79\ [Id.]. Based on the advice of an APHP
physician, Respondent said he entered Talbot Recovery Campus in
Atlanta, Georgia on February 1, 2005, and completed treatment on May 7,
2005. [Id.].
---------------------------------------------------------------------------
\79\ During his testimony, Respondent could not remember if he
had a positive drug screen in December 2004. He responded, however,
``[i]t's possible.'' [Tr. 166]. According to Government's
documentary evidence, the positive drug screen occurred December 21,
2004. [Gov't Ex. 17, at 53].
---------------------------------------------------------------------------
In November 2006, the Pennsylvania SBOM issued a Consent Agreement
and Order.\80\ [Gov't Ex. 17; Tr. 171]. The Order indicated that
Respondent failed to submit to six \81\ drug screens. [Gov't Ex. 17, at
2]. While Respondent testified that the missed drug tests occurred
while he was in rehabilitation at Talbot in 2005, the drug-testing
results indicate that there were twelve missed calls before he entered
the rehabilitation program on February 1, 2005 and eight missed calls
after he left Talbot on approximately May 10, 2005. [Gov't Ex. 17, at
2, 53-55; Tr. 171].\82\ Government counsel also called Respondent's
attention to a condition of the Consent Agreement and Order, which
prohibited Respondent from using controlled substances. [Gov't Ex. 17,
at 9; Tr. 172]. Respondent credibly responded ``I've actually complied
with'' this order.\83\ [Tr. 172]. Yet, the Respondent was not randomly
drug-tested for steroids while in the Pennsylvania monitoring program.
[Tr. 174].
---------------------------------------------------------------------------
\80\ This Order was admitted to the record without objection.
[Tr. 89; Gov't Ex. 17].
\81\ Documentary evidence contained in Government Exhibit 17
indicates that Respondent actually missed eight drug tests after he
was discharged from Talbot in 2005. [Gov't Ex. 17, at 55]. The dates
of the missed drug tests are 5/11/2005, 5/12/2005, 5/13/2005, 5/16/
2005, 5/17/2005, 5/18/2005, 5/19/2005, and 5/20/2005.
\82\ On redirect examination, Respondent testified that he
submitted a few drug tests every week at Talbot and assumed that
Pennsylvania had access to these drug results. [Tr. 198].
Furthermore, Respondent added that he signed releases for
Pennsylvania and Alabama to receive his records from Talbot. [Tr.
199].
\83\ As previously mentioned, Government counsel tried again to
show Respondent's non-compliance with a Board Order by having
Respondent admit he never provided hair samples. [See Tr. 174-75].
However, I find this testimony similarly insignificant since
Respondent provided the type of sample requested by the physician
coordinator the PHP monitoring. Therefore, I will disregard similar
questioning by the Government attorney concerning Government
Exhibits 18 and 19. [Id.].
---------------------------------------------------------------------------
On February 4, 2010, Respondent's medical license was reinstated as
unrestricted in Pennsylvania through an order \84\ issued by the SBOM.
[Gov't Ex. 20, at 1; Tr. 175]. However, there is currently an
unresolved action against Respondent's license concerning Respondent's
felony conviction in 2012. [Tr. 175]. Thus, Pennsylvania is in the
process of reacting \85\ to Respondent's recent drug-related felony
conviction. As of the time of the hearing in this case, the Respondent
had not had a hearing before the Pennsylvania SBOM. [Gov't Ex. 30, at
1; Tr. 182-83].
---------------------------------------------------------------------------
\84\ The ``Final Order Reinstating Respondent's License'' was
admitted into the record without objection. [Tr. 89; Gov't Ex. 20].
\85\ An Order to Show Cause filed on November 14, 2012 was
admitted into the record without objection. [Tr. 89; Gov't Ex. 30].
Respondent was asked to respond to ``why the State Board of
Osteopathic Medicine . . . should not suspend, revoke, or otherwise
restrict Respondent's license, impose a civil penalty, or impose the
costs of investigation.'' [Gov't Ex. 30, at 2].
---------------------------------------------------------------------------
3. Minnesota Board of Medical Practice
Since Respondent is employed in Minnesota, the Minnesota Board of
Medical Practice (``BMP'') has also investigated Respondent's case and
plan to ``mirror'' Alabama's action. [Gov't Ex. 43; Tr. 183, 199]. An
Order \86\ from August 30, 2012 indicates that when Alabama releases
Respondent from probation, Minnesota intends to grant Respondent an
``unconditional license.'' [Gov't Ex. 43, at 4; see Tr. 183, 199-200].
The Order also served as a formal reprimand. [Gov't Ex. 43, at 3].
---------------------------------------------------------------------------
\86\ This Order was admitted into the record without objection.
[Tr. 89; Gov't Ex. 43].
---------------------------------------------------------------------------
G. Respondent's Felony Conviction
On July 7, 2011,\87\ Respondent was arrested for felony charges
related to anabolic steroids. [Gov't Ex. 22]. The arrest was made at
Respondent's home, which he had access to on certain days of the week
as a result of his divorce proceedings. [Tr. 141]. Respondent testified
that Jim Hewette, an investigator for the Alabama SBME, said he was
permitted to see patients in his home so long as his address was
registered with the Board. [Tr. 142]. On the day of the arrest,
Respondent was locked out of his house, with six patients waiting in
the driveway. [Id.].
---------------------------------------------------------------------------
\87\ Respondent had been asked to provide a urine sample earlier
that day for drug-testing. [Tr. 126]. Respondent believes the
results were negative. [Tr. 126].
---------------------------------------------------------------------------
The basis for the charges \88\ against Respondent was a violation
of 21 U.S.C.
[[Page 18727]]
841(a)(1), which prohibits ``possession with [the] intent to distribute
anabolic steroids,'' as well as 21 U.S.C. 846, which prohibits a
``conspiracy'' to distribute anabolic steroids. [Gov't Ex. 22].
---------------------------------------------------------------------------
\88\ The criminal complaint filed against Respondent was
admitted into the record without objection. [Tr. 91; Gov't Ex. 22].
---------------------------------------------------------------------------
During his testimony, Respondent explained that his wife had
purchased steroids for herself and two other people from someone in
northern Alabama. [Tr. 126, 195-96]. He had requested that his wife buy
him some Viagra and Cialis. [Tr. 126, 129-30, 196]. Respondent admits
that he was aware of his wife's drug purchases. [Tr. 127, 196].
Respondent testified that he just wanted to ``get some cheap Viagra and
Cialis and wound up getting drug (sic) into a steroid charge.'' [Tr.
129-30].
On his applications to renew his DEA registration, Respondent
described the situation that gave rise to the charges:
Going thru a contentious divorce and my wife set me up and
entrapped me in a scheme to purchase and distribute steriods (sic).
On advice of my attorney I plead guilty to a felony of conspiracy to
possess and distribute steriods (sic) in order to minimize the
consequences. This had nothing to do with my medical practice. I
have and continue to maintain compliance with the Alabama Physicians
Health Program for 6 \1/2\ years. [Gov't Ex. 33, at 2].
Respondent wrote a similar description of the events on the renewal
application for his Minnesota DEA COR. [See Gov't Ex. 34, at 1-2].
While Respondent failed to accept responsibility and repeatedly blamed
his ex-wife for the felony charges, he also repeatedly testified that
he too ``us[ed] poor judgment.'' [Tr. 140, 196, 197, 199.] \89\
Respondent reflected on the conviction saying, ``I mean I used very
poor judgment and I accepted responsibility--I knew my wife was doing
something illegal and I should not have gotten involved with it.'' [Tr.
140].\90\
---------------------------------------------------------------------------
\89\ Respondent also offered evidence of his acceptance of
responsibility through an Order Denying Motion to Revoke Conditions
of Release. The order was admitted in to the record as Respondent
Exhibit 2, over Government's objection. [Resp't Ex. 2, at 11; Tr.
209-10]. I deny Government's motion to exclude this exhibit, since
it is relevant and material evidence relating to Respondent's
willingness and unwillingness to comply with court orders. [Gov't
Brief, at 36, 38].
\90\ Respondent's statements during his sentencing hearing, a
transcript of which was admitted into evidence as Respondent Exhibit
3, indicate that he accepted responsibility for the drug-related
conviction. [Resp't Ex. 3]. Respondent said, ``I'd just like to
apologize to the Court. I made a mistake. I used poor judgment. I
accept full responsibility for my behavior. And I wish that you
would have leniency on me so I can continue to serve my patients and
the community.'' [Id. at 6-7]. I note that a similar apology was not
offered by the Respondent to this Court.
---------------------------------------------------------------------------
On July 28, 2011, Respondent was indicted \91\ on Count I:
``willfully, knowingly, and unlawfully'' conspiring with co-defendants
to ``dispense and possess with the intent to distribute and dispense
testosterone \92\ and primobolan depot \93\ from about August 2005 \94\
to approximately July 8, 2011; and Count II: ``knowingly and
intentionally unlawfully dispens[ing] and possess[ing] with intent to
distribute and dispense testosterone and primobolan depot'' on or about
June 28, 2011. [Gov't Ex. 23, at 1-2; see also Gov't Ex. 24].
Respondent testified that he pled guilty to Count I concerning the
conspiracy. [Tr. 177].
---------------------------------------------------------------------------
\91\ A copy of the indictment was admitted into the record
without objection. [Tr. 91; Gov't Ex. 23]. A copy of a document
styled as a ``Penalty Page'' was similarly admitted into evidence.
[Tr. 91; Gov't Ex. 24].
\92\ Testosterone is a steroid regulated under Schedule III of
the Controlled Substances Act. 21 U.S.C. 812; 21 CFR 1308.13; see
also 21 CFR 1300.01 (b)(60).
\93\ Primobolan Depot is an injectable steroid that is
generically known as, methenolone. It is regulated under Schedule
III of the Controlled Substances Act. 21 U.S.C. 812; 21 CFR 1308.13.
\94\ Government counsel brought to Respondent's attention that
the criminal conduct began just one month after Respondent's MOA
with the DEA ended in July 2005. [Tr. 177].
---------------------------------------------------------------------------
On September 20, 2011, in the Southern District Court of Alabama,
Respondent entered into a plea agreement \95\ and pled guilty to the
first count of the indictment, which ``charg[ed] a violation of Title
21, United States Code, Section 846--conspiracy to distribute and
possess with intent to distribute anabolic steroids.'' [Gov't Ex. 25,
at 1; Tr. 126, 178].\96\ When Respondent signed the plea agreement, he
agreed to the statements contained therein, including: ``[t]he plea of
guilty is freely and voluntarily made and is not the result of force,
threats, promises, or representations, apart from those representations
set forth in the Plea Agreement. . . . [and] [t]he defendant is
pleading guilty because he is guilty.'' [Gov't Ex. 25, at 3 ] 10].
---------------------------------------------------------------------------
\95\ Respondent's plea agreement was admitted into the record
without objection. [Tr. 90; Gov't Ex. 25].
\96\ Even when Respondent testified about this issue on direct
examination, he maintained that he did not consume and traffic
anabolic steroids, but his ex-wife had. [Tr. 178].
---------------------------------------------------------------------------
On November 15, 2011, a magistrate made findings \97\ regarding
Respondent's compliance with his order of release while he was awaiting
sentencing for his felony charges. [Resp't Ex. 2]. The magistrate wrote
in an order, which denied the Government's motion to revoke his order
of release, that ``[w]ithout question, the defendant has violated the
Court's release order by contacting his wife by phone, te[x]t
messaging, and at least one personal visit.'' [Id. at 12]. However, the
magistrate found that the violations were ``an insufficient reason to
revoke and detain the defendant.'' [Id. at 13].\98\
---------------------------------------------------------------------------
\97\ After I deferred ruling on its admissibility, an order
dated November 15, 2011 regarding Respondent's violation of a
previous release order was admitted into evidence. [Tr. 264-65].
Government's objection to admission of the exhibit will go to the
weight I afford to the document. [Tr. 265; Resp't Ex. 2].
\98\ In arriving at this conclusion, the magistrate found that
Respondent has ``appeared at all times when his presence was
required, and admitted his guilt without a guarantee that the
district judge would agree to his continued release.'' [Resp't Ex.
2, at 11]. This statement about Respondent's admission of guilt was
made pursuant to a determination of flight risk and not a
determination of guilt or innocence. Thus, I weigh the statement
accordingly.
---------------------------------------------------------------------------
On February 24, 2012, Respondent was sentenced \99\ to five years
of probation, which he is currently still serving. [Gov't Ex. 26, at 2;
Tr. 132, 178-79]. As a result of his guilty plea, Respondent must also
serve two hundred hours \100\ of community service and pay a $10,000
fine. [Tr. 132]. The second count, on which Respondent had been
indicted, was dismissed. [Gov't Ex. 26, at 1]. The Respondent denied
ever purchasing, consuming, or trafficking anabolic steroids. [Tr. 178;
Gov't Ex. 25, at 14]. The Respondent did not take responsibility for
these acts as presented in the Factual Resume provided to the Court.
[Gov't Ex. 25].
---------------------------------------------------------------------------
\99\ Respondent's Exhibit 3, the transcript of Respondent's
sentencing hearing, was admitted into the record. [Resp't Ex. 3; Tr.
130, 133, 264]. The court's judgment concerning Respondent's plea
was admitted into the record. [Tr. 91; Gov't Ex. 26]. I deny
Government's motion to exclude this exhibit from the record, since
the exhibit contains relevant and material evidence concerning
Respondent's sentencing for pleading guilty to a drug-related
felony. [Gov't Brief, at 36, 38].
\100\ Dr. Koch testified that he has already paid the fine and
served 256 hours of community service. [Tr. 132]. Respondent
identified proposed Respondent Exhibit 6 as containing information
about the two places he conducted community service: Habitat for
Humanity and Elba Hospital. [Tr. 133-34; see also Resp't Ex. 6, at
1-2]. Respondent's Exhibit 6 was admitted into the record without
objection. [Tr. 134].
---------------------------------------------------------------------------
H. Respondent's Reputation
Jawad Khan (``Dr. Khan'') \101\ testified about Respondent's
reputation, in addition to offering a signed and notarized
affidavit.\102\ [Tr. 113]. Dr. Khan admitted during his testimony that
Respondent ``had some problems in Alabama'' and ``has a conditional
license both in Alabama and in
[[Page 18728]]
Minnesota.'' [Tr. 114]. Prior to hiring Respondent, Dr. Khan testified
that he conducted an internal investigation. [Id.]. Dr. Khan mentioned
he was aware Respondent had ``at one time pled guilty to some drug
related offense.'' [Id.]. However, he added that he did not know any of
the facts about Respondent's substance abuse. [Id.].
---------------------------------------------------------------------------
\101\ Dr. Khan is the Director of the Emergency Room at Sanford
Health in Thief River Falls, Minnesota. [Tr. 111].
\102\ Dr. Jawad Khan's affidavit, which was identified as
Respondent's Exhibit 9, was admitted into the record over
Government's objection. [Tr. 118; Resp't Ex. 9]. His affidavit was
signed and notarized. [Resp't Ex. 9, at 1-2].
---------------------------------------------------------------------------
Dr. Khan concluded that Minnesota has not said Respondent cannot
work in the state. [Id.]. He added that ``as long as the state Board
allows him to practice and we don't have any personal concerns about
him, we don't have any problems with him practicing with us.'' [Tr.
116]. Dr. Khan emphasized that his primary concern with regards to
Respondent's employment is whether he has a valid state license to
practice medicine. [Tr. 117].
Furthermore, Dr. Khan explained that his personal opinion of the
Respondent is based on his ``personal contact with him.'' [Tr. 115]. He
stated generally that Respondent ``has done a good job and we have not
had any problems with him.'' [Id.]. Specifically, with regards to
prescription drugs, Dr. Khan credibly testified that ``we have never
had any concerns about him'' working in the emergency room where there
are ``a lot of people who have problems with drugs.'' [Id.]. Dr. Khan's
affidavit similarly noted that, ``during his tenure at the [Thief River
Falls Emergency Room], there has never been any issue regarding any
prescriptions that he has written nor has there been any misuse of his
DEA certificate.'' [Resp't Ex. 9, at 1].
Also testifying regarding Respondent's reputation was Gladys Luker
(``Ms. Luker''), who is a registered nurse at J. Paul Jones Hospital in
Camden, Alabama. [Tr. 218]. Ms. Luker first met Respondent in
approximately 2008 when he began taking shifts at the hospital. [Tr.
219]. Ms. Luker said she has had the opportunity to observe him taking
care of patients. [Id.]. She has accompanied him to see patients in the
emergency room, assist while he does procedures, and carried out his
medical orders. [Tr. 220]. Overall, Ms. Luker credibly testified that
Respondent's professional reputation is ``[e]xcellent.'' [Tr. 219-20].
Ms. Luker admitted that she is aware of Respondent's guilty plea,
but maintained that this does not affect her opinion of him. [Tr. 220].
However, she testified that she is not really sure what the drug
conviction was for. [Tr. 221]. Ms. Luker has also not discussed
Respondent's long history with drug use and abuse, prior disciplinary
actions, and news articles about Respondent's conviction. [Tr. 221-22].
Respondent then called Shirley Candies (``Ms. Candies'') to
testify. Ms. Candies is a registered nurse and the assistant director
of nursing at J. Paul Jones Hospital in Camden, Alabama. [Tr. 223-24].
Ms. Candies worked with Respondent from approximately 2009 to 2012.
[Tr. 224, 227]. Ms. Candies credibility testified that she has
``observed him to be a very professional doctor'' with ``good bedside
manner.'' [Tr. 224].
Ms. Candies admitted that she is aware of Dr. Koch's history of
substance abuse, but has not discussed it with other people. [Tr. 225].
She also testified that she is aware Respondent ``pled guilty to some
type of steroid charge,'' but maintains that it does not have an impact
on her impression of Respondent. [Tr. 225-26]. Finally, Ms. Candies
admitted there have been disciplinary actions taken against Respondent
by three medical boards, but testified that it does not change her
impression of him. [Tr. 226].
Next, Sheila Roe (``Ms. Roe'') testified about Respondent's
reputation. She is a registered nurse at J. Paul Jones Hospital, in
Camden, Alabama. [Tr. 228]. Ms. Roe last worked with Respondent in
approximately 2012. [Tr. 233]. In total, she worked with Respondent for
over four years. [Id.]. She testified that Dr. Koch ``is a very
excellent, thorough and intelligent physician.'' [Tr. 229]. She
testified that she has never questioned a written or verbal order from
the Respondent with regards to patient care. [Id.]. Specifically, she
credibly testified that she has never questioned Respondent when
writing prescriptions for patients. [Tr. 230].
Ms. Roe testified, however, that she is not aware of Respondent's
history of drug abuse, or the specific details concerning Respondent's
felony conviction. [Tr. 231-32]. She also testified that she has not
read any newspaper articles about him, nor was she aware of the
administrative proceedings against him. [Tr. 232]. The witness has not
discussed any of these subjects with other employees, patients or
Respondent. [Tr. 232-33]. The witness explained, she just wants to work
with a physician who ``know[s] what he's doing,'' even if they have a
few ``issue[s].'' [Id.].
Then, Respondent called Jan Wicker (``Ms. Wicker'') to testify.
[Tr. 237]. She is a registered nurse, director of nurses, and assistant
administrator. [Tr. 238, 240]. Ms. Wicker worked with Respondent in the
emergency room as locum tenens in early 2011 and then in a clinic from
October 2011 to October 2012. [Tr. 240]. Then she worked with him on a
daily basis, Monday through Friday, until February 28, 2013. [Tr. 243].
Ms. Wicker testified that she was aware of Respondent's drug use
and abuse, specifically with regards to steroids. [Id.]. She learned
this from court documents when the hospital was considering whether to
hire Respondent. [Id.]. She credibly testified that this does not
concern her as long as he is rehabilitated and being monitored. [Tr.
245]. She further testified that she was not aware, however, that he
had previously abused cocaine and alcohol. [Tr. 241]. The witness was
familiar with the disciplinary actions in Alabama, but not Pennsylvania
and Minnesota. [Id.]. The witness added that she was aware Respondent's
Medicare and Medicaid numbers were ``denied.'' [Tr. 242]. Ms. Wicker
testified that she had privately discussed some of Respondent's issues
with the administrator, specifically Respondent's recent guilty plea.
[Tr. 244-45]. However, she added that it had not impacted the
administrator's hiring decision. [Id.]. The witness later clarified
that she, personally, does not make decisions on hiring and firing
physicians, or whether a physician should be credentialed. [Tr. 246].
During her testimony, Ms. Wicker laid the foundation for Respondent
Exhibit 8,\103\ which is a quarterly report of Respondent's conduct by
a worksite monitor. [Tr. 238-39; Gov't Ex. 8]. The report was completed
on April 5, 2013. [Tr. 243]. The report covers Respondent's conduct up
until the facility closed on February 28, 2013. [Id.]. Ms. Wicker
credibly testified that the report was written at the request of the
Physician Health Program on April 4th or 5th of this year. [Id.]. The
Program provided Ms. Wicker with the form. [Tr. 247]. The witness had
completed similar reports in the past. [Tr. 244]. Ms. Wicker testified
that Respondent's decision to leave the area and the clinic was the
result of ``the closing of the hospital and clinic due to financial
decline.'' [Id.; see also Resp't Ex. 8, at 1]. Ms. Wicker also wrote
that ``[w]e were looking forward to a long and mutually beneficial
relationship with Dr. Koch.'' [Resp't Ex. 8, at 1].
---------------------------------------------------------------------------
\103\ The Quarterly Report completed by worksite monitor, Jan
Wicker, was admitted into the record without objection as
Respondent's Exhibit 8. [Resp't Ex. 8; Tr. 247].
---------------------------------------------------------------------------
Judy Holloway (``Ms. Holloway'') followed with testimony concerning
the Respondent. She has been licensed as a registered nurse for thirty
years. [Tr. 250]. She testified that she has worked with the Respondent
as an emergency
[[Page 18729]]
room nurse at Elba General Hospital for approximately 300 hours, most
recently in February 2012. [Tr. 251, 252, 254]. Ms. Holloway credibly
testified that Dr. Koch's work is ``excellent.'' [Tr. 251]. She added
that ``all [of] the patients liked him.'' [Id.].
Ms. Holloway said she was not aware of Respondent's drug abuse
problem, but knew he had an issue with steroids. [Tr. 253]. Ms.
Holloway added that her opinion of him did not change even knowing he
had been disciplined by multiple state medical boards. [Tr. 253-54].
Thereafter, Rosanne Cook (``Dr. Cook'') testified telephonically.
[Tr. 256-63]. Dr. Cook is a primary care physician in a community
health center located in Pineapple, Alabama and staff member at J. Paul
Jones Hospital in Camden, Alabama. [Tr. 257-58]. The witness testified
that she has had an opportunity to work with him and has ``no
complaints about his clinical skills, his diagnostic skills, and his
ability to provide the right care for patients, both coming in to the
emergency room and also in the in-patients in our little hospital. He
took care of my patients quite well when I was not available, and I
could trust his judgment.'' [Tr. 258]. Dr. Cook clarified that she does
not know Dr. Koch socially. [Tr. 259]. She last worked with Dr. Koch
approximately two years ago. [Tr. 263].
Dr. Cook said she was aware Respondent had a drug problem and had
talked with him about it briefly. [Tr. 260-61]. She was aware of his
drug-related felony conviction and five-year probationary term. [Tr.
261]. She was also aware of the disciplinary actions against
Respondent's medical license. [Id.]. However, Dr. Cook offered credible
testimony clarifying that when Dr. Koch has been at work in the
hospital he had ``never in any way act[ed] like he was under any
influences, other than just good judgment.'' [Tr. 262]. Dr. Cook
admitted that she had never drug-tested him. [Id.].
Dr. Cook concluded that her impression of Dr. Koch's reputation was
based on his ``clinical judgment.'' [Tr. 262]. Dr. Cook's affidavit
\104\ also noted that ``there has never been any complaint or problem
with the care that he has given nor any misuse of his DEA certificate.
I have never seen him impaired in any way.'' [Resp't Ex. 10, at 1].
---------------------------------------------------------------------------
\104\ Dr. Cook's affidavit was admitted into evidence without
objection. [Resp't Ex. 10; Tr. 265]. Dr. Cook's affidavit was signed
and notarized. [Resp't Ex. 10, 1-2].
---------------------------------------------------------------------------
Finally, although Jana Wyatt (``Ms. Wyatt'') was not able to
testify, she noted in her affidavit \105\ that as CEO of Mizell
Memorial Hospital in Opp, Alabama she was ``familiar with Dr. Koch
through the physician recruitment process.'' [Resp't Ex. 11, at 1; Tr.
207]. Ms. Wyatt said ``he could be a welcome addition to our staff,''
however, Ms. Wyatt admitted her opinion is only based on ``brief
discussions'' with him. [Resp't Ex. 11, at 1].\106\ Ms. Wyatt did not
provide any insight into Respondent's experience handling controlled
substances.
---------------------------------------------------------------------------
\105\ Jana Wyatt's affidavit was admitted into evidence without
objection. [Resp't Ex. 11; Tr. 207]. Her affidavit is signed and
notarized. [Resp't Ex. 11, at 1-2].
\106\ Wyatt also mentions that she has heard Dr. Koch has
``billing issues with Medicare and Medicaid,'' but does not go into
detail about them. [Resp't Ex. 11, at 1].
---------------------------------------------------------------------------
Generally, I find that the witnesses, who testified regarding
Respondent's reputation, are credible. However, I will take into
account the fact that the witnesses did not rely on Respondent's past
misuse and abuse of controlled substances or his steroid conviction
when forming their opinions. This consideration will affect the weight
I afford to the witnesses' testimony.
I. Respondent's Remedial Actions
During his testimony, the Respondent said ``I'd been in denial of
my problem,'' but ``once I realized I did have a problem, I accepted
responsibility for it.'' [Tr. 120]. On February 1, 2005, he entered
Talbot Recovery Center (``Talbot'') in Atlanta, Georgia and spent 14
weeks in rehabilitation.\107\ [Tr. 120-21]. After being ``discharged
with advocacy'' from Talbot, he signed an agreement with the Alabama
Physician Health Program (``APHP''). [Tr. 121]. Respondent testified
that ``since 2005 [he has] been compliant.'' [Tr. 197].
---------------------------------------------------------------------------
\107\ Dr. Koch said he entered Talbot on February 1, 2005 and
was discharged on or about May 8 or May 10, 2005. [Tr. 122]. During
this time period, he was being monitored in Pennsylvania. [Tr. 143-
44]. Assuming Respondent was discharged on May 10, 2005, results
from the Pennsylvania monitoring program indicate that Respondent
missed eight drug tests, none of which can be attributed to
Respondent's participation in the rehabilitation program. [Gov't Ex.
17, at 53-55]. Respondent added that he was not monitored by Alabama
until May 2005. [Tr. 143].
---------------------------------------------------------------------------
Dr. Koch credibly testified that he has not used cocaine since
January 2005. [Tr. 121]. As a result, he has not had a positive drug
test result since then. [Tr. 123]. Respondent also maintained that he
has been drug-free since he completed the Talbot Program and alcohol-
free since January 2005. [Tr. 139]. Respondent cited that the biggest
change from pre-2005 to post-2005 was ``recogniz[ing] [he] had a
problem'' and ``needed help with it.'' [Id.]. To this point, Respondent
added that he has ``been compliant with everything that the State Board
plus the Alabama Physician Health Program has asked me to do.'' [Id.].
Respondent also said ``[s]ince the day I've taken responsibility for
[his] actions, [he has] not had any relapses. Nor [has he] used any
alcohol or drugs.'' [Id.]. Throughout his testimony, Respondent did not
deny that he violated past board orders as a result of using illegal
drugs prior to 2005. [Tr. 160]. However, in accepting responsibility,
he also failed to show genuine remorse for the risks associated with
his previous actions. [See Tr. 160-61].
I find Respondent generally credible, with the exception of
specific areas of Respondent's testimony that I do not find
sufficiently detailed, consistent, and plausible to be fully credited
in this recommended decision. First, I do not find the Respondent
credible with respect to his testimony that he never missed a drug
test. [Tr. 122, 138]. It is inconsistent with documentary evidence in
the record that he missed twelve drug tests from July 2002 to February
2005. [Gov't Ex. 17, at 53-55]. It is also inconsistent with
documentary evidence indicating he missed eight drug tests after his
release from Talbot in May 2005. [Id.].
Secondly, when Government counsel asked Respondent if he had
purchased, consumed or trafficked anabolic steroids, Respondent lacked
credibility when he responded, ``[t]hat I did not do that.'' [Tr. 178].
Respondent's statement is contradictory to evidence contained in the
factual resume of his indictment, which states: ``Mark Peter Koch, a
physician practicing in Camden, Alabama and Monroeville, Alabama,
purchased, consumed, and trafficked anabolic steroids.'' [Gov't Ex. 25,
at 14]. The factual resume was incorporated into his plea agreement by
reference. [Gov't Ex. 25, at 3].
Finally, I do not find that Respondent was credible when he
testified that he has been ``compliant'' since 2005. [Tr. 197]. In
2012, Respondent was in violation of 21 U.S.C. 841(a)(1), which
prohibits ``possession with [the] intent to distribute anabolic
steroids,'' as well as 21 U.S.C. 846, which prohibits a ``conspiracy''
to distribute anabolic steroids. [Gov't Ex. 22]. While awaiting his
sentencing for the conviction, a magistrate wrote in an order, which
denied the Government's motion to revoke Respondent's order of release,
that ``[w]ithout question, the defendant has violated the Court's
release order by contacting his wife by phone, te[x]t messaging, and at
least one personal visit.'' [Resp't Ex. 2, at 12]. This
[[Page 18730]]
evidence is contrary to Respondent's testimony about compliance with
state and federal laws, which I do not find credible.
V. Statement of Law and Discussion
A. Positions of the Parties
1. Government's Position
The Government timely filed its closing brief (``Government's
Brief'') with this Court on June 26, 2013. [Gov't Brief, at 1]. The
Government offered proposed findings of fact and conclusions of law
that support the denial of Respondent's renewal application and the
revocation of Respondent's existing registrations. [Gov't Brief, at 2].
Government addressed its proposed factual findings and conclusions of
law within the framework of the public interest analysis.
Concerning Respondent's conviction related to controlled
substances, the Government proposed I find that Respondent pled guilty
to a drug-related felony involving a conspiracy to distribute anabolic
steroids. [Gov't Brief, at 21-22]. Government suggested I conclude that
this conviction, on its own, is sufficient justification to revoke
Respondent's registration. [Id.].
Additionally, with regards to Respondent's experience handling
controlled substances, the Government suggested I find that Respondent
had a long history of controlled substance abuse, which led to various
violations of both state and federal law. [Id. at 23]. Specifically,
the Government proposed I find that the various administrative board
orders demonstrate a general pattern of Respondent's noncompliance with
state law. [See id. at 13, 23-26]. The Government also proposed that I
make factual findings concerning the various DEA investigations that
arose when Respondent applied for DEA CORs, as well as the Memorandum
of Agreement (``MOA'') that DEA entered into with Respondent, because
they show a pattern of non-compliance with federal laws. [Id. at 4-5,
23-27].
Government further suggested that I find Respondent failed to take
complete responsibility for his actions. [Id. at 14-16]. In support,
the Government noted that the Respondent denied he had purchased,
consumed, or trafficked anabolic steroids and instead testified that
his ex-wife purchased the steroids, which he had neither consumed, nor
trafficked. [Id.]. Government added that on other occasions, when
Respondent took partial responsibility, I should find that he did so
without remorse and without an apology. [Id. at 13, 29].
Government also pointed to evidence supporting their contention
that the Respondent failed to take corrective actions concerning his
future intentions to handle controlled substances. [Id. at 32-33]. The
Government asserted that the Respondent failed to present a plan
demonstrating that his past illegal conduct would not be repeated. [Id.
at 33].
Government then proposed that I give limited weight to the
testimony offered concerning Respondent's reputation, since it was
based on general opinions of Respondent's patient care, and not his
ability to handle controlled substances. [Id. at 9]. Government also
suggested I find that the testimony from Respondent's colleagues
carries little weight because they are not well-informed of
Respondent's history of drug abuse and recent drug-related conviction.
[See id. at 17-19, 34].
In conclusion, the Government urged that I find it has satisfied
its prima facie case, but Respondent has failed to properly rebut it.
[Id. at 29-30]. In reaching this result, Government requested that I
exclude documentary evidence contained in Respondent's Exhibits 2 and
3, on the basis that they are irrelevant and immaterial, as well as
exclude documentary evidence in Respondent's Exhibits 1(A) and 1(B)
because they are inaccurate and unreliable. [Id. at 36, 38].
2. Respondent's Position
The Respondent filed a timely closing brief (``Respondent's
Brief'') with this Court on June 27, 2013. [Resp't Brief, at 1]. The
brief proposed several factual findings and legal conclusions.
First, Respondent suggested that I find he has not abused the
discretionary authority granted to him pursuant to DEA CORs No.
BK1391729 and FK1953327. [Id. at 2]. Second, he asserted I should find
that he provided excellent medical care to his patients and further has
never been subject of any complaint from his patients, peers, or
employers. [Id. at 4]. Third, Respondent asserted that contrary to his
drug convictions, there is no evidence he ever actually obtained or
distributed the steroids alluded to in the criminal matter. [Id. at 5].
Fourth, Respondent proposed I find that he has not consumed any illegal
substances since entering Talbot Recovery Campus in 2005, nor has he
tested positive for any controlled substances since he has been
enrolled in the APHP in May 2005. [Id. at 6-7].
Finally, Respondent suggested I find that the Government has not
presented any evidence that shows his continued registration would be
inconsistent with the public interest. [Id. at 6]. Respondent urged me
to find that Government failed to meet its prima facie case to revoke
Respondent's existing registrations and deny any applications for
renewal or modification. [Id. at 8]. In conclusion, Respondent
requested I issue an order denying Government's motion to revoke or
suspend the DEA CORs of Dr. Koch, or in the alternative, continue the
DEA CORs of Dr. Koch, subject to ``any conditions the ALJ might deem
proper while Respondent's medical license is on a probationary basis.''
[Id. at 9].
B. Statement of Law and Analysis
Pursuant to 21 U.S.C. 823(f) (2011), the Deputy Administrator may
deny an application for a DEA COR, if he determines that such
registration would be inconsistent with the public interest.\108\
Similarly, pursuant to 21 U.S.C. 824(a)(4), the Deputy Administrator
may revoke a DEA COR, if he determines that such registration would be
inconsistent with the public interest. In determining the public
interest, the following factors are considered:
---------------------------------------------------------------------------
\108\ The Deputy Administrator has the authority to make such a
determination pursuant to 28 CFR 0.100(b), 0.104 (2012).
(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.
21 U.S.C. 823(f) (2011).
These factors are to be considered in the disjunctive; the Deputy
Administrator may rely on any one or a combination of factors and may
give each factor the weight he deems appropriate in determining whether
a registration should be revoked or an application for registration be
denied. See Robert A. Leslie, M.D., 68 FR 15,227, 15,230 (DEA 2003)
(citing Henry J. Schwartz, Jr. M.D., 54 FR 16,422, 16,424 (DEA 1989)).
Moreover, the Deputy Administrator is ``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).
Thus, ``this is not a contest in which score is kept; the Agency is not
required to mechanically count up the factors and
[[Page 18731]]
determine how many favor'' each party. Jayam Krishna-Iyer, M.D., 74 FR
459, 462 (DEA 2009). ``Rather, it is an inquiry which focuses on
protecting the public interest[.]'' Id.
The Government bears the ultimate burden of proving that the
requirements for registration are not satisfied. 21 CFR Sec.
1301.44(d) (2012). Specifically, the Government must show that
Respondent has committed acts that are inconsistent with the public
interest. 21 U.S.C. 823(f); Jeri Hassman, M.D., 75 FR 8,194, 8,227 (DEA
2010) (citing Paul J. Caragine, Jr., 63 FR 51,592, 51,601 (DEA 1998)).
However, where the Government has made out a prima facie case that
Respondent's application would be ``inconsistent with the public
interest,'' the burden of production shifts to the applicant to
``present[] sufficient mitigating evidence'' to show why he can be
trusted with a new registration. See Medicine Shoppe--Jonesborough, 73
FR 364, 387 (DEA 2008). To this point, the Agency has repeatedly held
that the ``registrant must accept responsibility for [his] actions and
demonstrate that [he] will not engage in future misconduct.'' Id.; see
also Samuel S. Jackson, D.D.S., 72 FR 23,848, 23,853 (DEA 2007). The
Respondent must produce sufficient evidence that he can be trusted with
the authority that a registration provides by demonstrating that he
accepts responsibility for his misconduct and that the misconduct will
not reoccur. See id.; see also, Samuel S. Jackson, D.D.S., 72 FR at
23,853. The DEA has consistently held the view that ``past performance
is the best predictor of future performance.'' Alra Laboratories, 59 FR
50,620 (DEA 1994), aff'd Alra Laboratories, Inc. v. DEA, 54 F.3d 450,
451 (7th Cir 1995).
On review, the Deputy Administrator must ``examine the relevant
data'' and demonstrate in the record ``a rational connection between
the facts found and the [decision] made.'' Hoxie v. DEA, 419 F.3d at
482. The Deputy Administrator's factual findings ``are conclusive if
supported by substantial evidence.'' Hoxie v. DEA, 419 F.3d at 482; 21
U.S.C. Sec. 877. Substantial evidence is ``more than a scintilla, and
must do more than create a suspicion of the existence of the fact to be
established.'' Hoxie v. DEA, 419 F.3d at 482; Morall v. DEA, 412 F.3d
at 176 (quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S.
292, 299-300, 59 S.Ct. 501, 505 (1939)). Even if there is a
``possibility of drawing two inconsistent conclusions from the
evidence,'' an agency's findings may nonetheless be ``supported by
substantial evidence.'' Shatz v. U.S. Dep't of Justice, 873 F.2d 1089,
1092 (8th Cir. 1989) (citing Trawick v. DEA, 861 F.2d at 77 (internal
citations omitted)). The Deputy Administrator's decision will be
considered ``less substantial,'' however, when the Administrative Law
Judge (ALJ) ``who has observed the witnesses and lived with the case
has drawn [different] conclusions. . . . '' Universal Camera Corp. v.
NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 469 (1951); 5 U.S.C. Sec. 557
(b) (explaining that an ALJ's decisions are part of the record, but
they are not binding on the Deputy Administrator). Thus, the ALJ's
factual findings in this decision ``are entitled to significant
deference.'' Roni Dreszer, M.D., 76 FR 19,434, 19,444 (DEA 2011)
(citing Universal Camera Corp. v. NLRB, 340 U.S. at 496).
On appeal, the Administrator's decision will be ``set aside if it
is `arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.' '' Hoxie v. DEA, 419 F.3d at 482; 5 U.S.C.
706(2)(A); Morall v. DEA, 412 F.3d at 181 (vacating the DEA's decision
to revoke a physician's registration because the agency had departed
from its precedent without explanation); cf. Chein v. DEA, 533 F.3d
828, 835 (D.C. Cir. 2008) (finding that ``mere unevenness in the
application of a sanction will not render [it] . . . `unwarranted in
law' '') (internal citations omitted).
Factor One: Recommendation of Appropriate State Licensing Board
Recommendations of state licensing boards are relevant, but not
dispositive, in determining whether a respondent should be permitted to
maintain a registration. See Gregory D. Owens, D.D.S., 74 FR 36,751,
36,755 (DEA 2009); see also Martha Hernandez, M.D., 62 FR 61,145,
61,147 (DEA 1997). According to clear agency precedent, a ``state
license is a necessary, but not a sufficient condition for
registration.'' Robert A. Leslie, M.D., 68 FR at 15,230; John H.
Kennedy, M.D., 71 FR 35,705, 35,708 (DEA 2006).
DEA possesses ``a separate oversight responsibility with respect to
the handling of controlled substances,'' which requires the Agency to
make an ``independent determination as to whether the granting of [a
registration] would be in the public interest.'' Mortimer B. Levin
D.O., 55 FR 8,209, 8,210 (1990); see also Jayam Krishna-Iyer, M.D., 74
FR at 461. Even the reinstatement of a state medical license does not
affect this Agency's independent responsibility to determine whether a
DEA registration is in the public interest. Mortimer B. Levin, 55 FR at
8,210. The ultimate responsibility to determine whether a registration
is consistent with the public interest has been delegated exclusively
to the DEA, not to entities within a state government. Edmund Chein,
M.D., 72 FR 6,580, 6,590 (DEA 2007), aff'd Chein v. DEA, 533 F.3d 828
(D.C. Cir. 2008).
Here, records from the Alabama SBME demonstrate that Respondent
satisfies the state license and registration requirements for purposes
of maintaining his DEA COR No. BK1391729 in Alabama. [Gov't Ex. 31,
33]. Documentary evidence confirms that Respondent currently has a
probationary license to practice medicine in the state of Alabama.
[Gov't Ex. 29, at 4; see also Gov't Ex. 31]. His probationary license
is subject to the condition that Respondent ``maintain, indefinitely, a
contract with the Alabama Physicians Health Program.'' [Gov't Ex. 29,
at 4; Tr. 180-81]. Additionally, Respondent has been permitted to
retain a full and unrestricted Alabama registration to handle
controlled substances in Schedules II-V. [Gov't Ex. 31].
Likewise, records from the Minnesota BMP indicate that Respondent
also has a state medical license for purposes of maintaining DEA COR
No. FK1953327 in Minnesota. [Gov't Ex. 32, 34]. Respondent currently
holds an active license as a physician and surgeon in the state of
Minnesota. [Gov't Ex. 32]. At this time, there are no disciplinary
actions pending against the Respondent in Minnesota. [Id.]. Although,
Minnesota has indicated it will be deferential to any disciplinary
actions taken by Alabama. [Gov't Ex. 43, at 3-4; Tr. 183, 199].
With regards to Respondent's Minnesota registration to handle
controlled substances, the documentary evidence does not explicitly
support the fact that Respondent maintains a valid state controlled
substances certificate of registration. However, I find that Respondent
has the authority to prescribe, administer, and dispense controlled
substances within Schedules II through V, simply by having a valid
license to practice osteopathic medicine in the state of Minnesota.
According to state statutes, ``[a] doctor of osteopathy . . . in the
course of professional practice only, may prescribe, administer, and
dispense a controlled substance included in Schedules II through V. . .
.'' Minn. Stat. Ann. Sec. 152.12 (West 2013). Therefore, in accordance
with 5 U.S.C. Sec. 556(e), I take official notice that, pursuant to
Minn. Stat. Ann. Sec. 152.12, Respondent has state authority to handle
controlled substances in Minnesota, by the very nature of his valid
state license to
[[Page 18732]]
practice osteopathic medicine.\109\ [Gov't Ex. 25].
---------------------------------------------------------------------------
\109\ ``Under the Administrative Procedure Act, `[a]gencies may
take official notice of facts at any stage in a proceeding-even in
the final decision.' '' Attorney General's Manual on the
Administrative Procedure Act 80 (1946) (Wm. W. Gaunt & Sons, Inc.,
reprint 1979). In accordance with the Act, Respondent may `` `show
to the contrary' by filing a request for reconsideration which
includes supporting documentation within fifteen days of receipt of
this order.'' Id.
---------------------------------------------------------------------------
While I find Respondent currently holds valid state medical
licenses and registrations in Alabama and Minnesota, which satisfy the
prerequisites for his DEA CORs under the first factor of the public
interest analysis, this is not the end of the inquiry. This Agency is
nonetheless required to make an independent determination of whether
Respondent's continued registration is within the public interest. See
Mortimer B. Levin, 55 FR at 8,210. I find that the plethora of state
administrative actions against Respondent's license in the past sixteen
years diminishes the weight I can give to the current state license
status.
Specifically, in 2000, Alabama SBME revoked Respondent's medical
license for cocaine use. [Gov't Ex. 6, at 3; Tr. 155]. A year later,
Respondent's Pennsylvania medical license was suspended, the suspension
was stayed, and his medical license was placed on probation. [Gov't Ex.
8, at 11]. It took Respondent nearly ten years to once again receive an
unrestricted medical license. [See Gov't Ex. 21; Tr. 175]. However, no
sooner had his license been fully reinstated, than he pled guilty to a
drug-related felony. [Gov't Ex. 25, at 1; Tr. 126, 178]. As a result of
this conviction, Respondent's Alabama license was again placed on
indefinite probation and Minnesota \110\ responded in a similar
fashion. [Gov't Ex. 29, 43]. I find that the history of state
administrative orders, which ranged in effect from revocation to
complete reinstatement, to probation, diminishes the weight of the
current state medical license status, which permits Respondent to
practice medicine and handle controlled substances.
---------------------------------------------------------------------------
\110\ At this time, Respondent no longer maintains a DEA COR in
Pennsylvania. [Tr. 84].
---------------------------------------------------------------------------
Thus, I conclude that the evidence offered under this public
interest factor satisfies the state prerequisite for a DEA COR, but
does not weigh in favor of permitting Respondent to maintain his DEA
CORs.
Factors Two and Four: Registrant's Experience With Controlled
Substances and Registrant's Compliance With Applicable State, Federal,
or Local Laws Relating to Controlled Substances
Respondent's experiences with handling controlled substances, as
well as his compliance with laws related to controlled substances, are
relevant considerations under the public interest analysis. Pursuant to
21 U.S.C. Sec. 822(b), ``[p]ersons registered by the Attorney General
under this subchapter to . . . dispense controlled substances . . . are
authorized to possess . . . or dispense such substances . . . to the
extent authorized by their registration and in conformity with the
other provisions of this subchapter.'' Leonard E. Reaves, III, M.D., 63
FR 44,471, 44,473 (DEA 1998); see also 21 CFR 1301.13(a) (providing
that ``[n]o person required to be registered shall engage in any
activity for which registration is required until the application for
registration is granted and a Certificate of Registration is issued by
the Administrator to such person.'').
DEA regulations that apply to practitioner registrants address how
to modify a registration,\111\ maintain records and inventories,\112\
and issue prescriptions.\113\ This Agency examines a ``registrant's
actions against a backdrop of how she has performed activity within the
scope of the certificate.'' Cynthia M. Cadet, M.D., 76 FR 19,450,
19,460 (DEA 2011). Specifically, the Agency considers the ``qualitative
manner'' and ``quantitative volume'' of a respondent's handling of
controlled substances. Id.
---------------------------------------------------------------------------
\111\ 21 CFR 1301.51 (stating that a registrant ``may apply to
modify his/her registration . . . or to change his/her name or
address . . . by submitting a letter'' to the DEA).
\112\ 21 CFR 1304.04.
\113\ 21 CFR 1306.04.
---------------------------------------------------------------------------
In the absence of authorization to handle controlled substances, it
is ``unlawful for any person knowingly or intentionally to . . .
dispense, or possess with intent to . . . dispense a controlled
substance.'' 21 U.S.C. 841(a)(1); see 21 U.S.C. 802(10) (`` `dispense'
means to deliver a controlled substance to an ultimate user . . .
pursuant to the lawful order of, a practitioner, including the
prescribing . . . of a controlled substance'').
1. Respondent's Use of Cocaine Violated State and Federal Law
Respondent's ability to prescribe controlled substances as a
registered practitioner, while briefly mentioned by Respondent's
colleagues during their testimony, is not the basis for any of the
allegations in this case. Rather, the relevant experience I must
consider is Respondent's addiction to cocaine and illegal handling of
anabolic steroids. [Tr. 144]. In order to follow agency precedent, I
will take into consideration evidence of Respondent's drug abuse under
the fifth public interest factor. Tony T. Bui, M.D., 75 FR 49,979,
49,989 (DEA 2010). To this point, however, the violations of state and
federal law between September 1997 and January 2005, which arose from
Respondent's cocaine addiction and unlawful conspiracy to handle
steroids, are relevant considerations under this public interest
factor.
The manner in which the Respondent used cocaine was a violation of
federal law.\114\ Specifically, Respondent's use of cocaine \115\
violated 21 U.S.C. 844(a), which provides that it is ``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 . . . .'' No one disputes that Respondent
did not have such a prescription.
---------------------------------------------------------------------------
\114\ Respondent's involvement in a conspiracy to purchase
anabolic steroids violated 21 U.S.C. 846 and 841(a)(1), which
resulted in a felony conviction. [See Gov't Ex. 23, 26]. This is
discussed in more detail under Factor 3 of the public interest
analysis.
\115\ Cocaine is regulated under Schedule II of the Controlled
Substances Act. 21 U.S.C. 812; 21 CFR 1308.12(b)(4).
---------------------------------------------------------------------------
Further, Respondent failed to comply with the MOA he entered into
with the DEA. [Gov't Ex. 9]. Even though Supervisor Younker, the author
of the document, testified that he was not aware of any violations
\116\ Respondent committed under the MOA, Respondent credibly testified
that he failed to meet the restrictions concerning the purchasing of
controlled substances and the prescribing, dispensing, and
administering of controlled substances to family members. [Gov't Ex. 9,
at 1-2; Tr. 161]. Evidence in the record also indicates that Respondent
had a positive drug test on December 21, 2004, which fell squarely
between the July 2003 and July 2005 term of the MOA. [Gov't Ex. 13; Tr.
87; Gov't Ex. 9, at 1-2].
---------------------------------------------------------------------------
\116\ [Tr. 75, 78; Gov't Ex. 9, at 2].
---------------------------------------------------------------------------
Respondent's cocaine use also violated Alabama law and
administrative orders. Under Alabama law, Respondent's use of cocaine
was a violation of Ala. Code 1975 Sec. Sec. 20-2-1, 13A-12-210, and
specifically 13A-12-212, which provides that ``[a] person commits a
crime of unlawful possession of controlled substance if: (1) [e]xcept
as
[[Page 18733]]
otherwise authorized, he or she possesses a controlled substance
enumerated in Schedules I through V.'' Ala. Code 1975 Sec. 13A-12-212.
Such behavior also caused Respondent to lose his Alabama license to
practice medicine in 2000 for failing to comply with the voluntary
restrictions placed on his license, in violation of Ala. Code
Sec. Sec. 34-24-360 (2), (3), (15) and (19). [Gov't Ex. 6, at 2-3; Tr.
155]. Then, in 2004, after requesting reinstatement of his medical
license, he failed to comply with drug-monitoring requirements and his
Alabama medical license was once again suspended. [Gov't Ex. 12; Tr.
165]. Eventually, in 2006, Respondent successfully had his medical
license reinstated subject to an indefinite contract with APHP. [Gov't
Ex. 16, at 1]. In 2010, all restrictions were lifted from Respondent's
medical license. [Gov't Ex. 21; Tr. 175]. However, in 2012, all of his
progress quickly unraveled when his license was immediately suspended
as a result of his drug-related felony conviction. [Gov't Ex. 27, at
1].
Respondent has a similar pattern of non-compliance with
Pennsylvania laws and administrative orders. In 1998, Respondent agreed
to voluntary restrictions on his medical license after he was found to
be in violation of section 63 P.S. Sec. 271.15(a)(4) of the
Osteopathic Medical Practice Act as a result of his cocaine use. [Gov't
Ex. 2, at 2]. But, he demonstrated his inability to comply with the
restrictions when he later tested positive for cocaine. [Gov't Ex. 4,
at 3]. Thus, in 1999, he was suspended from practicing medicine and
entered into a consent agreement, which required him to stop using
controlled substances. [Id. at 10, 21]. However, Respondent admitted
during his testimony that he once again did not comply. [Tr. 153-54].
In 2001, Respondent's Pennsylvania license was put on probation for not
less than five years for failing to comply with previous administrative
orders, in violation of 63 P.S. Sec. 271.15(a)(6). [Gov't Ex. 8, at 2,
11]. In 2007, Respondent entered into another consent agreement subject
to licensing restrictions because, pursuant to 63 P.S. Sec.
271.5(a)(5), Respondent was ``unable to practice the profession with
reasonable skill and safety to patients by reason of illness, addiction
to drugs or alcohol. . . .'' [Gov't Ex. 17, at 3]. While Respondent
ultimately received an unrestricted medical license in 2010,
Pennsylvania has issued an Order to Show Cause concerning Respondent's
felony conviction. [Gov't Ex. 20, at 1; Gov't Ex. 30, at 1].
2. There Is Insufficient Evidence That Respondent's Use of Anabolic
Steroids Violated Federal Law
As for Respondent's use of anabolic steroids, the Government
asserted that Respondent unlawfully consumed anabolic steroids.
Specifically, the Government stated that Respondent's use of anabolic
steroids: (1) Violated 21 U.S.C. 844, which prohibits illegal
possession of anabolic steroids; (2) violated 21 U.S.C. 841(a)(1),
which prohibits distribution of anabolic steroids; and (3) violated 21
U.S.C. 846, which penalizes participation in a conspiracy related to
the possession or distribution of controlled substances. [Gov't Brief,
at 23].
During his testimony, Respondent said that he did not purchase or
consume anabolic steroids. [Tr.178]. However, Respondent admitted that
he pled guilty to ``self-using the anabolic steroids.'' [Tr. 84].
Additionally, the factual resume of his indictment states that
Respondent ``purchased, consumed, and trafficked anabolic steroids''
and Respondent ``admits in open court and under oath that [this] . . .
statement is true and correct and constitutes evidence in the case.''
[Gov't Ex. 25, at 14].\117\
---------------------------------------------------------------------------
\117\ The factual resume of the indictment was incorporated into
Respondent's plea agreement by reference. [Gov't Ex. 25, at 3].
---------------------------------------------------------------------------
While the record contains some evidence that Respondent consumed
anabolic steroids, I find that the Government has not met its burden of
proving such consumption was unlawful. None of the counts in the
indictment mentioned Respondent's unlawful consumption of steroids or
offered a specific statute that Respondent had violated by such
consumption. [See generally Gov't Ex. 23]. Furthermore, the only count
from the indictment to which Respondent pled guilty was conspiracy to
distribute anabolic steroids. [Gov't Ex. 23; Gov't Ex. 26]. Thus, the
guilty plea made no mention of illegal consumption. [Gov't Ex. 25]. As
a result, I find that since Respondent did not plead guilty to unlawful
consumption and the evidence in the record does not support such
consumption,\118\ the record failed to prove that Respondent violated
state or federal law with regards to the unlawful consumption of
anabolic steroids.
---------------------------------------------------------------------------
\118\ The Administrator has explained that ``in the absence of
probative and reliable evidence'' of a charge, ``Respondent ha[s] no
obligation to refute the charge.'' David A. Ruben, M.D., 78 FR
38,363, 38,384 n.45 (DEA 2013). Here, since the record did not
contain probative and reliable evidence that Respondent unlawfully
consumed anabolic steroids, the Respondent is not required to refute
it according to agency precedent.
---------------------------------------------------------------------------
3. Respondent's Failure to Maintain a DEA COR at his Principal Place of
Business Violated a Duty of Registrants Under the CSA and Agency
Regulations
a. Change of Address
The Government incorrectly asserted that Respondent's failure to
notify the DEA of his change in address for his DEA COR in Minnesota
demonstrated that Respondent violated a duty arising under agency
regulations. [Gov't Brief, at 7]. Government grounded the existence of
Respondent's duty to notify the DEA of a change in address in DI
Riley's testimony, where he answered in the affirmative to Government
counsel's question, ``Investigator Riley, is it the duty and
responsibility of the DEA registrant to be able to be located at their
registered address?'' [Id.; Tr. 273]. Government then offered as proof
of Respondent's violation an envelope sent to Respondent's registered
address in Virginia, Minnesota, which was returned to the DEA with
stamps saying ``Undeliverable as Addressed,'' ``Return to Sender,'' and
``Unable to Forward.'' [Gov't Ex. 44].
DEA regulations do not explicitly define a registrant's duty to
notify the DEA of a change in address. Under 21 CFR 1301.51, a
``[r]egistrant may apply to modify his/her registration . . . or change
his/her name or address, by submitting a letter of request'' to the
DEA. However, Respondent's ability to change the registered address, as
indicated by ``may'' in the regulatory language, should not be confused
with an affirmative responsibility of the Respondent to provide such
notice under the regulations. If the DEA wanted to create a
responsibility to notify the agency of a change in address, it could
have used ``shall'' instead of ``may'' in the language of the
regulation. Thus, pursuant to Sec. 1301.51, a Respondent does not have
a duty to notify the DEA of his change in address. Consequently,
Government incorrectly asserted that Respondent violated such duty in
an effort to prove Respondent has a history of non-compliance.
b. Principal Place of Business
Sua sponte, however, I find that the envelope,\119\ which was
returned to the DEA, is evidence that Respondent violated 21 CFR
1301.12. Under both the CSA and agency regulations, a registrant is
required to obtain a ``separate registration . . . at each principal
place of business or professional practice.'' 21 U.S.C. 822(e);
[[Page 18734]]
21 CFR 1301.12.\120\ Published guidance from the DEA concerning the
``Registration Requirements for Individual Practitioners Operating in a
`Locum Tenens' Capacity'' instructs that the location where a
practitioner will work in a locum tenens capacity is considered his
``principal place of business or professional practice'' for purposes
of a DEA registration. Registration Requirements for Individual
Practitioners Operating in a ``Locum Tenens'' Capacity, 74 FR 55,499,
55,501 (DEA 2009).
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\119\ [Gov't Ex. 44].
\120\ I find Government's citation to 21 CFR 1301.52, which
discusses the conditions that may terminate registrations, and the
citation to 21 CFR 1301.11, which addresses who is required to
obtain a registration, are equally unhelpful. [Gov't Brief, at 26-
27].
---------------------------------------------------------------------------
Here, Respondent testified that he was working in a locum tenens
capacity in Minnesota. [Tr. 128]. The envelope sent by the DEA to
Respondent, which was returned to DEA as undeliverable, listed the
following address: 815 12th Street North, Virginia, Minnesota 55792.
[Gov't Ex. 44]. Such address is the Respondent's registered address.
[Gov't Ex. 34, at 1]. Because the envelope was returned to DEA having
been marked as undeliverable, I find that Respondent was not registered
at his principal place of business while working in a locum tenens
capacity in Minnesota, in violation of 21 CFR 1301.12 (requiring any
person to have a separate registration to handle controlled substances
for each principal place of business or professional practice).
In conclusion, I find that Government incorrectly asserted that
Respondent violated a duty to notify DEA of a change in his registered
address. I do not find that such duty exists under the statute or
regulations. However, I find that Respondent, by failing to maintain
his registration at his principal place of business, violated 21 CFR
1301.12. Therefore, Respondent failed to obtain a separate registration
for his principal place of business in Minnesota where he was working
in a locum tenens capacity. Thus, Respondent's violation of Sec.
1301.12 weighs in favor of finding that Respondent's continued
registration is inconsistent with the public interest.
4. Respondent's Failure To Notify DEA of His Intention to Cease Medical
Practice in Alabama Violated His Duties as a Registrant
Government argued that Respondent failed to comply with agency
regulations when he failed to notify DEA that his Alabama medical
license and certificate of registration were suspended in 2012. [Gov't
Brief, at 15; Tr. 180; Gov't Ex. 27]. Government added that Respondent
violated agency regulations when he failed to surrender his DEA COR
during periods of time when he did not have a valid medical license or
state registration. Specifically, Supervisor Dittmer indicated during
his testimony that he believed Respondent had a responsibility to
surrender his registration upon losing his Pennsylvania medical license
in 2001. [Gov't Brief, at 4; Tr. 62; Gov't Ex. 3, at 7].
The Government offered as a legal basis for such duties, 21 CFR
1307.02, which provides that ``[n]othing in [the regulations] shall be
construed as authorizing or permitting any person to do any act which
such person is not authorized or permitted to do under other Federal
laws . . . or under the law of the State in which he/she desires to do
such act. . . .'' It also cited to 21 U.S.C. 824(a)(3), which indicates
that a DEA COR may be revoked or suspended if the registrant ``has had
his State license or registration suspended, revoked, or denied by
competent State authority. . . .'' I find that the Government
incorrectly inferred a duty to notify and surrender a DEA COR from
these broad provisions.
``[T]he registration of any person . . . shall terminate . . . if
and when such person dies, ceases legal existence or discontinues
business or professional practice.'' 21 CFR 1301.52(a). Agency
precedent has interpreted this language to mean that such duty to
notify arises when a registrant establishes that ``he intends to
permanently cease the practice of medicine.'' William R. Lockridge,
M.D., 71 FR 77,791, 77,797 (DEA 2006). A registrant may also
demonstrate his intent through returning his DEA COR for cancellation.
See 21 CFR 1301.52(c); John B. Freitas, D.O., 74 FR 17,524, 17,525 (DEA
2009). Here, Respondent never testified that he intended to cease the
practice of medicine in 2001 when his Pennsylvania license was
suspended or in 2012 when his Alabama license was suspended. See Wayne
D. Longmore, M.D., 77 FR 67,669, 67,671 (DEA 2012). Thus, Respondent
did not violate a duty of notice under the agency regulations with
respect to these circumstances.
Sua sponte, however, I find that Respondent should have notified
the DEA when he decided in 2004 that he no longer had any intention of
practicing medicine in Alabama. [Tr. 165]. Respondent testified that in
2004 he notified both his attorney and the Alabama SBME that he would
not pursue an Alabama license. [Tr. 165]. As a result, the Alabama SBME
rescinded its offer to reinstate his medical license. [Gov't Ex. 12].
Under these circumstances, Respondent expressed a clear intent to cease
professional practice, which triggered 21 CFR Sec. 1301.52(a) and the
duty to notify DEA.
Even so, this does not mean that Respondent was also required to
surrender his or her DEA COR. Surrendering a registration is a
voluntary decision under agency regulations. See 21 CFR 1301.52(a);
Voluntary Surrender of Certificate of Registration, 76 FR 61,563,
61,563 (DEA 2011). Upon receiving notice, DEA can decide whether to
institute proceedings against a registrant to revoke his registration,
but the registrant is not obligated to surrender his registration.
Consequently, I find that Respondent violated the regulations and
failed to notify the DEA in 2004 of his intentions to cease the
practice of medicine in Alabama. However, I do not find that the other
circumstances described by the Government in 2001 and 2012 constituted
non-compliance with agency regulations.
In conclusion, I find that the evidence offered in support of
Factors 2 and 4 proves several violations of federal and state laws, as
well as administrative orders, which illustrate a pattern of non-
compliance that heavily weighs in favor of finding that Respondent's
maintenance of a DEA COR would be inconsistent with the public
interest.
Factor Three: Registrant's Conviction Record Relating to Controlled
Substances
Pursuant to 21 U.S.C. 823(f)(3), the Deputy Administrator may deny
a pending application for a certificate of registration upon a finding
that the applicant has been convicted \121\ of a felony related to
controlled substances under state or federal law. See Thomas G. Easter
II, M.D., 69 FR 5,579, 5,580 (DEA 2004); Barry H. Brooks, M.D., 66 FR
18,305, 18,307 (DEA 2001); John S. Noell, M.D., 56 FR 12,038, 12,039
(DEA 1991).
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\121\ The Administrator interprets the term ``conviction'' by
affording it the ``broadest possible meaning.'' Donald Patsy Rocco,
D.D.S., 50 FR 34,210, 34,211 (DEA 1985). Thus, evidence of a guilty
plea is probative under the third factor of the public interest
analysis. See e.g., Farmacia Ortiz, 61 FR 726, 728 (DEA 1996); Roger
Pharmacy, 61 FR 65,079, 65,080 (DEA 1996).
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The Deputy Administrator may revoke a respondent's certificate of
registration on a similar basis. Pursuant to 21 U.S.C. Sec. 824(a)(4),
a registration may be suspended or revoked by the [Deputy
Administrator] upon a finding that the registrant . . . has been
convicted of a felony . . . relating to any substance defined . . . as
a controlled substance.'' See Algirdas J.
[[Page 18735]]
Krisciunas, M.D., 76 FR 4,940, 4,944 (DEA 2011); Ivan D. Garcia-
Ramirez, M.D., 69 FR 62,092, 62,093 (DEA 2004); William C. Potter,
D.V.M., 65 FR 50,569, 50,569 (DEA 2000). The drug-related activity that
gives rise to the convictions does not have to involve the registrant's
DEA COR in order to justify the revocation. See e.g., Paul Stepak,
M.D., 51 FR 17,556, 17,556-57 (DEA 1986) (revocation of registration
for distributing LSD); William H. Carranza, M.D., 51 FR 2,771, 2,771-72
(DEA 1986) (denial of registration application for possessing heroin
and cocaine); Aaron Moss, D.D.S., 45 FR 72,850, 72,851 (DEA 1980)
(denial of registration application for smuggling cocaine).
It is important to note that the doctrine of res judicata precludes
a respondent from re-litigating previous criminal convictions in a DEA
administrative proceeding. See Robert L. Dougherty, M.D., 76 FR 16,823,
16,830 (DEA 2011); Dan E. Hale, D.O., 69 FR 69,402, 69,406 (DEA 2004)
(citing Robert A. Leslie, M.D., 64 Fed Reg. at 25,908-25,910).
Likewise, collateral estoppel precludes a respondent from re-litigating
the underlying factual findings of his criminal convictions in a DEA
administrative hearing. Shahid Musus Siddiqui, M.D., 61 FR 14,818,
14,818-19 (DEA 1996). The purpose of both doctrines is to ``protect[t]
the litigants from the burden of relitigating'' and ``promot[e]
judicial economy.'' Jose G. Zavaleta, M.D., 78 FR 27,431, 27,434 (DEA
2013) (citing Parklane Hosiery Co. Inc. v. Shore, 439 U.S. 322, 326
(1979)).
In this case, Respondent's September 2011 guilty plea is considered
a conviction for purposes of this factor of the public interest
analysis. See Farmacia Ortiz, 61 FR at 728. Thus, Respondent has a
recent drug-related felony conviction that strongly supports a finding
that continuing his registration and granting his renewal application
would be inconsistent with the public interest. [Gov't Ex. 25].
Furthermore, I find that since Respondent has already pled guilty
to the charges, he has waived his ability to defend his actions. I will
not reconsider Respondent's conviction, or the underlying facts of his
case, in accordance with the doctrines of res judicata and collateral
estoppel. See Dan E. Hale, D.O., 69 FR at 69,406 (citing Robert A.
Leslie, M.D., 64 FR at 25,908-25,910). I will simply adopt the findings
in the factual resume of Respondent's plea agreement. [See Gov't Ex.
25, at 14-16]. By signing the plea agreement, Respondent agreed that he
entered into it freely and he ``plea[d] guilty because he is guilty.''
[Gov't Ex. 25, at 3 ] 10]. This conviction weighs heavily in favor of
revoking Respondent's registration and denying Respondent's renewal
application because it is related to controlled substances. It carries
even greater weight because the conviction is in close proximity to
this adjudication. Additionally, the events that gave rise to the
conviction began within a month \122\ or so of the expiration of the
Respondent's DEA MOA. [Gov't Brief, at 3].
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\122\ Respondent's MOA with DEA expired July 15, 2005. [Gov't
Ex. 9, at 2]. Count I of the indictment indicates that Respondent
became involved with the conspiracy in approximately August 2005.
[Gov't Ex. 23, at 1].
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Despite significant documentary evidence regarding the conviction,
Respondent nevertheless attempted to downplay his involvement in the
events that gave rise to the conviction. Respondent tried to pass blame
for the conviction to his ex-wife because she was allegedly the one
purchasing steroids from individuals in northern Alabama. [Tr. 126,
195-96]. He explained that he ``wound up getting drug (sic) into a
steroid charge'' because he gave his ex-wife money to buy Viagra and
Cialis during the same transaction. [Tr. 130]. I find that this
testimony in no way mitigates the weight of Respondent's conviction. If
anything, Respondent's failure to apologize or show remorse for such
actions is an aggravating circumstance under this factor of the public
interest analysis.
Finally, in its closing brief, the Government identified agency
precedent that permits the Deputy Administrator to revoke a
respondent's registration solely based on a felony conviction, even if
the drug-related activity did not specifically involve the
registration. [Gov't Brief, at 21-22]. While I acknowledge that a drug-
related felony conviction could provide sufficient basis to recommend
revocation of the Respondent's registration or denial of his renewal
application, I will still make findings as to the other public interest
factors. However, the findings under this factor weigh heavily in favor
of revoking Respondent's registration and denying his renewal
application since a drug-related felony conviction is extremely
inconsistent with the public interest.
Factor Five: Such Other Conduct Which May Threaten the Public Health
and Safety
Under the fifth public interest factor, the Agency considers
``[s]uch other conduct which may threaten the public health and
safety.'' 21 U.S.C. Sec. 823(f)(5) (emphasis added). The Administrator
has clarified this language by reasoning that since Congress used the
word ``may,'' factor five includes consideration of conduct, ``which
creates a probable or possible threat (and not an actual) threat to
public health and safety.'' Roni Dreszer, M.D., 76 FR at 19,434;
Michael J. Aruta, 76 FR 19,420, 19,420 (DEA 2011); Beau Boshers, M.D.,
76 FR 19,401, 19,403 (DEA 2011); Jacobo Dreszer, M.D., 76 FR 19,386,
19,386 (DEA 2011).
Taking into consideration Congress's clear statutory language and
legislative intent under the CSA, misconduct considered under factor
five also ``must be related to controlled substances.'' Terese, Inc. D/
B/A Peach Orchard Drugs, 76 FR 46,843, 46,848 n.11 (DEA 2011); Tony T.
Bui, M.D., 75 FR at 49,989 (finding that prescribing practices related
to a non-controlled substance, such as human growth hormone, may not
provide an independent basis for concluding that a registrant has
engaged in conduct, which may threaten public health and safety); cf.,
Paul Weir Battershell, N.P., 76 FR 44,359, 44,360, 44,368 n.27 (DEA
2011) (reasoning that while respondent's violation of the Food, Drug,
and Cosmetic Act for improperly dispensing Human Growth Hormone does
not relate to a controlled substance, such violation is relevant in
assessing respondent's future compliance with the CSA).
Long-standing agency precedent indicates that a ``practitioner's
self-abuse of a controlled substance is a relevant consideration under
factor five.'' Tony T. Bui, M.D., 75 FR at 49,989; Allan L. Gant, D.O.,
59 FR 10,826, 10,827 (DEA 1994); David E. Trawick, D.D.S, 53 FR 5,326
(DEA 1988). This Agency has upheld such a position, ``even when there
[was] no evidence that the registrant abused his prescription writing
authority'' or when there was ``no evidence that the practitioner
committed acts involving unlawful distribution to others.'' Tony T.
Bui, M.D., 75 FR at 49,989.
Here, Respondent credibly testified that he struggled with his
addiction from 1985 to 2005. [Tr. 120]. Respondent openly admitted that
he abused both drugs and alcohol, during this time period. [Tr. 144].
Respondent said he used cocaine several times a year while on vacation
in the Caribbean. [Tr. 145]. He also used to drink alcohol three times
a week, consuming up to eight or ten cans of beers each episode. [Id.].
I find that Respondent failed to show genuine remorse for these actions
that could have had very devastating personal and professional
consequences. [Tr. 160-61]. Thus, his conduct and lack of remorse
weighs
[[Page 18736]]
against Respondent's maintenance of a DEA registration.
As previously explained by the Deputy Administrator, ``[t]he
paramount issue is not how much time has elapsed since [the
Respondent's] unlawful conduct, but rather, whether during that time
[the] Respondent has learned from past mistakes and has demonstrated
that he would handle controlled substances properly if entrusted with a
DEA registration.'' Leonardo V. Lopez, M.D., 54 FR 36,915, 36,915 (DEA
1989). Nonetheless, time is certainly an appropriate factor to be
considered. See Robert G. Hallermeier, M.D., 62 FR 26,818, 26,821 (DEA
1997) (four years); John Porter Richards, D.O., 61 FR 13,878, 13,879
(DEA 1996) (ten years); Norman Alpert, M.D., 58 FR 67,420, 67,421 (DEA
1993) (seven years).
In this case, the record demonstrates that the Respondent's cocaine
abuse occurred from 1985 to January 2005. [Tr. 120]. The record
contains no other use evidence of cocaine abuse. I find that
Respondent's sobriety since 2005 weighs in Respondent's favor.
However, an issue arises concerning the Respondent's handling of
steroids. Respondent denied purchasing, consuming, and trafficking
anabolic steroids,\123\ even though contradictory evidence was
contained in the factual resume \124\ of his indictment, which stated:
``Mark Peter Koch, a physician practicing in Camden, Alabama and
Monroeville, Alabama, purchased, consumed, and trafficked anabolic
steroids.'' [Gov't Ex. 25, at 14]. Since I determined that Respondent's
testimony on this issue was not credible, I find that his recent
conduct of purchasing and trafficking anabolic steroids, as documented
in the factual resume, demonstrates he has not learned from his past
mistakes concerning the handling of controlled substances. Thus, his
conduct weighs against the Respondent's maintenance of a DEA
registration.
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\123\ [See Tr. 178].
\124\ The factual resume was incorporated into his plea
agreement by reference. [Gov't Ex. 25, at 3]. However, I have found
that Government failed to prove that the Respondent unlawfully
consumed steroids.
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Overall, I conclude that the evidence under factor five weighs
against a finding that Respondent's continued registration and renewal
application are consistent with the public interest.
1. Mitigating Evidence
a. Respondent's Candor
Once the Government has proved that Respondent has ``committed acts
inconsistent with the public interest'' the Respondent must ``present
sufficient mitigating evidence to assure the Deputy Administrator that
it can be entrusted with the responsibility carried by such a
registration.'' Medicine Shoppe--Jonesborough, 73 FR at 387 (internal
citations omitted). DEA has consistently held that ``[c]andor during
DEA investigations, regardless of the severity of the violations
alleged, is considered by the DEA to be an important factor when
assessing whether a . . . registration is consistent with the public
interest'' and noting that a registrant's ``lack of candor and failure
to take responsibility for his past legal troubles . . . provide
substantial evidence that his registration is inconsistent with the
public interest.'' Jeri Hassman, M.D., 75 FR at 8,236; see also Prince
George Daniels, D.D.S., 60 FR 62,884, 62,887 (DEA 1995); see also
Ronald Lynch, M.D., 75 FR 78,745, 78,749-750 (DEA 2010) (Respondent's
attempts to minimize misconduct held to undermine acceptance of
responsibility).
During the hearing, Respondent discussed his sincere efforts to
rehabilitate. He described how he experienced a major turning point in
2005, which enabled him to recognize that he had a substance abuse
problem. [See Tr. 139]. He further explained that in February of 2005
he entered Talbot Recovery Center. [Tr. 120-21]. With the help of this
treatment, Respondent testified he has been drug-free since February
2005 and alcohol-free since January 2005. [Tr. 139]. From his demeanor,
I find that Respondent's testimony on his rehabilitation was credible.
His ability to completely abstain from drugs and alcohol for eight
years certainly weighs in Respondent's favor.
However, while I find that Respondent's candor during this
testimony was very open and honest about his addiction, he failed to
testify credibly about his handling of anabolic steroids. Respondent
blamed his ex-wife for conduct to which he pled guilty, thereby
undermining the circumstances where he had actually accepted
responsibility for his actions. This demonstrates a lack of candor and
weighs against the Respondent's continued registration.
b. Evidence of Respondent's Community Impact and Professional
Reputation
The Agency does not ``consider community impact evidence in
exercising its authority . . .'' to either deny an application for
registration or revoke an existing registration. Linda Sue Cheek, M.D.,
76 FR 66,972, 66,973 (DEA 2011); see also Steven M. Abbadessa, D.O., 74
FR 10,077, 10,078 (DEA 2009) (the hardship imposed because Respondent
lacks a registration is not a relevant consideration under the
Controlled Substances Act).
With regards to evidence offered in support of Respondent's
professional reputation, I find such testimony supportive, as far as it
goes. The Government never challenged Respondent's practice of
medicine. Therefore, the Respondent's professional reputation does not
mitigate the Respondent's misconduct in this case.
However, I have considered the Respondent's evidence, specifically
the testimony from his colleagues concerning Respondent's ability to
practice medicine. For example, Ms. Luker and Ms. Holloway described
his professional reputation as ``[e]xcellent.'' [Tr. 219-20, 251]. Ms.
Candies commented that she ``observed [Dr. Koch] to be a very
professional doctor'' with ``good bedside manner.'' [Tr. 224]. Dr. Khan
testified that ``as long as the state Board allows him to practice and
we don't have any personal concerns about him, we don't have any
problems with him practicing with us.'' [Tr. 116]. I find this
testimony carries little value under the public interest analysis
because it does not bear a connection to Respondent's ability to handle
controlled substances. Terese, Inc. D/B/A Peach Orchard Drugs, 76 FR at
46848 n.11. The fundamental issue in this case is not Respondent's
ability to practice medicine, but rather Respondent's ability to handle
controlled substances. Whether Respondent is qualified to maintain a
medical license is for the state medical boards to decide. As a result,
I find that any general testimony offered in support of Respondent's
reputation to practice medicine is of little value for purposes of the
public interest analysis in this case.
On the other hand, I acknowledge that Respondent's colleagues
offered a few general comments about Respondent's reputation related to
drugs, which deserve some consideration. Dr. Khan credibly testified
that ``we have never had any concerns about [Dr. Koch]'' working in the
emergency room where there are ``a lot of people who have problems with
drugs.'' [Tr. 115]. Ms. Roe said she has never questioned Respondent
when he wrote prescriptions for patients. [Tr. 230]. Dr. Cook said she
never thought he was acting under the influence of drugs or alcohol
while on the job. [Tr. 262]. While this testimony is more probative
than the testimony on Respondent's ability to practice medicine, it
still does not carry significant weight for purposes
[[Page 18737]]
of this public interest factor because: (1) The witnesses did not
specifically mention controlled substances; (2) they were not asked
follow-up questions that would have given context to these comments;
and (3) they were not well-informed about the facts involved in the
Respondent's history of drug abuse or his drug-related conviction.
Finally, I am not persuaded by Respondent's testimony that his
registration is in the ``best interest of the community,'' \125\
because long-standing agency precedent indicates this is not a relevant
consideration. See e.g., Linda Sue Cheek, M.D., 76 FR at 66973.
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\125\ [Tr. 229; Resp't Brief, at 4].
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C. Conclusion and Recommendation
I conclude that the Government has proven, by a preponderance of
the evidence, that Respondent's renewal application for DEA COR No.
FK1953327 in Minnesota should be denied and Respondent's DEA COR No.
BK1391729 in Alabama should be revoked. Respondent has been granted
numerous opportunities to act as a responsible DEA registrant and has
failed each time. I do not see any conditions that could be placed on
Respondent's registration now that would ensure that Respondent would
be a responsible DEA registrant, especially considering that Respondent
has been the subject of numerous state medical board orders that
imposed probationary periods, that Respondent violated his DEA MOA, and
that Respondent recently pled guilty to a felony concerning controlled
substances. Furthermore, Respondent has not shown that he has learned
from his past mistakes in a way that will prevent future misconduct.
Although Respondent offered ample testimony concerning his
reputation as a practicing physician and his impact on the medical
community, the only probative mitigating evidence offered was
generalized testimony about his ability to handle prescription drugs.
Because Respondent has not taken full responsibility for his mistakes
and genuinely expressed remorse, I find that granting Respondent's
renewal application for the DEA COR in Minnesota is against the public
interest and revoking Respondent's DEA COR in Alabama is appropriate.
Consequently, I recommend that Dr. Koch's renewal application for DEA
COR No. FK1953327 be denied and DEA Registration No. BK1391729 be
revoked.
Dated: July 18, 2013.
Gail A. Randall,
Administrative Law Judge.
[FR Doc. 2014-07450 Filed 4-2-14; 8:45 am]
BILLING CODE 4410-09-P