[Federal Register Volume 80, Number 97 (Wednesday, May 20, 2015)]
[Notices]
[Pages 29067-29096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12135]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 12-62]


Jana Marjenhoff, D.O.; Decision and Order

    On June 24, 2014, Chief Administrative Law Judge (ALJ) John J. 
Mulrooney, Jr., issued the attached Recommended Decision.\1\ Respondent 
filed Exceptions to the Decision.
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    \1\ All citations to the Recommended Decision (hereinafter, 
cited as R.D.) are to the slip opinion as issued by the ALJ.
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    Having reviewed the entire record, including Respondent's 
Exceptions, I have decided to adopt the ALJ's findings of fact,\2\ 
conclusions of law, and recommended order, except as discussed below. A 
discussion of Respondent's Exceptions follows.
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    \2\ I do not adopt the ALJ's findings that hydrocodone combined 
with acetaminophen is a schedule III controlled substance. See, 
e.g., R.D. at 5 n.12; id. at 20 n.42. While that was correct at the 
time of the underlying events, as well as on the date of the 
issuance of the Recommended Decision, this drug has since been 
placed in schedule II of the Controlled Substances Act. See 
Rescheduling of Hydrocodone Combination Products from Schedule III 
to Schedule II, 79 FR 49661 (2014).
    I also do not adopt the ALJ's finding that the dispensing event 
which occurred on March 15, 2011 was based on a hard copy 
prescription which was dated March 11, 2011, or that the March 11 
prescription was presented to different pharmacies on three 
occasions. See R.D. at 22-25. Rather, I find that the March 15 
prescription was based on a telephone prescription which was dated 
March 15, 2014. See GX 6, at 3; GX 8, at 5. As for the hard copy 
prescription which the ALJ cited as the evidence to support this 
finding, I find the date to be illegible. However, this finding does 
not alter the disposition of this matter because I adopt the ALJ's 
finding that PA Francis, whose prescribing authority was used to 
obtain the prescriptions, credibly denied having issued Respondent 
any controlled substance prescriptions after the initial controlled 
substance prescription she issued on February 14, 2011. See R.D. at 
55.
    While I adopt the ALJ's finding that the testimony of Malana 
Diminovich, who testified that the PA had issued the controlled 
substance prescriptions, was not credible, as explained in my 
discussion of Respondent's fourth exception, I do not rely on his 
reasoning to the extent it is based on the suggested inconsistency 
between Diminovich's testimony that ``Respondent was never observed 
to be under the influence of controlled substances during the time 
the two worked together'' and ``that she was aware that . . . 
Respondent was receiving controlled substance prescriptions from PA 
Francis.'' Id. at 30-31.
     In his decision, the ALJ found that ``the only evidence 
received on the issue supports the Respondent's claim that she had 
an objective medical basis that could arguably have supported the 
prescribing of controlled substances,'' Id. at 62. Given the ALJ's 
findings, it is notable that the record is devoid of evidence as to 
whether patients who are taking narcotics for legitimate pain would 
necessarily manifest symptoms consistent with abuse or intoxication.
    In any event, the Government's case primarily focused on 
Respondent's obtaining of controlled substances through fraud or 
misrepresentation such as by presenting forged prescriptions. Thus, 
resolution of the allegations does not require proof that Respondent 
was abusing the controlled substances.
    Also, I do not adopt the ALJ's findings related to the dates of 
the phone call in which Dr. Edmonds confronted Respondent as to 
whether she was forging prescriptions which were purportedly 
authorized by PA Francis. In the decision, the ALJ referred to this 
phone call as occurring in July 2011, following Respondent's 
positive urinalysis for opiates. See R.D. at 39. The evidence is 
clear, however, that this conversation did not occur in response to 
the July 2011 drug test, but in September 2011, after a pharmacist 
had notified PA Francis about the prescriptions and the latter had 
presented a printout from the State Prescription Monitoring Program 
to the clinic's Human Resources Manager, who raised it with Dr. 
Edmonds. See Tr. 195-202; 368; 831-32.
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Exception One--Whether Respondent Was Denied Adequate Notice Because 
the ALJ Relied on Matters That Were Not Raised in the Order To Show 
Cause

    Respondent argues that her rights under the Due Process Clause and 
the Administrative Procedure Act were violated because in the Show 
Cause Order, the Government alleged only that Respondent forged eight 
prescriptions and the ALJ proceeded to rely on ``other matters of fact 
to support'' his recommendation. Exceptions, at 2. Respondent does not, 
however, identify the specific facts of which she believes she was 
denied adequate notice, but rather, simply asserts that ``the matters 
determined by the ALJ to support findings against Respondent as to 
factors four and five were not previously raised in the Order to Show 
Cause.'' Id. at 3.
    To the extent Respondent takes issue with the ALJ's decision 
because the Show Cause Order alleged only eight instances of forgery 
rather than the ten instances that the ALJ found proved (as well as the 
instance in which Respondent filled the first prescription a second 
time at a second pharmacy), her argument is not well taken. However, to 
the extent Respondent takes issue with the ALJ's finding that 
Respondent engaged in conduct actionable under factor five because she 
attempted to obstruct the pharmacist who questioned her prescription 
from contacting PA Francis, her argument is well taken.
    One of the fundamental tenets of Due Process is that an Agency must 
provide a Respondent with notice of those acts which the Agency intends 
to rely on in seeking the revocation of its registration so as to 
provide a full and fair opportunity to challenge the factual and legal 
basis for the Agency's action. See NLRB v. I.W.G., Inc., 144 F.3d 685, 
688-89 (10th Cir. 1998); Pergament United Sales, Inc. v. NLRB, 920 F.2d 
130, 134 (2d Cir. 1990); see also 5 U.S.C. 554(b) (``Persons entitled 
to notice of an agency hearing shall be timely informed of . . . the 
matters of fact and law asserted.'') (emphasis added).
    However, `` `[p]leadings in administrative proceedings are not 
judged by the standards applied to an indictment at common law.' '' 
Aloha Airlines v. Civil Aeronautics Bd., 598 F.2d 250, 262 (D.C. Cir. 
1979) (quoted in CBS Wholesale Distributors, 74 FR

[[Page 29068]]

36746, 36749 (2009)); accord Citizens State Bank of Marshfield v. FDIC, 
751 F.2d 209, 213 (8th Cir. 1984). Accordingly, ``the failure of the 
Government to disclose an allegation in the Order to Show Cause is not 
dispositive and an issue can be litigated if the Government otherwise 
timely notifies a [r]espondent of its intent to litigate the issue.'' 
CBS Wholesale, 74 FR at 36750. Thus, while the Agency has held that 
``the parameters of the hearing are determined by the prehearing 
statements,'' consistent with numerous court decisions, the Agency has 
also recognized that even where an allegation was not raised in either 
the Show Cause Order or the pre-hearing statements, the parties may 
nonetheless litigate an issue by consent. See Clair L. Pettinger, 78 FR 
61592, 61596 (2013) (citing Pergament United Sales, Inc. v. NLRB, 920 
F.2d 130, 135-37 (2d Cir. 1990)); see also Duane v. Department of 
Defense, 275 F.3d 988, 995 (10th Cir. 2002) (discussing Facet 
Enterprises, Inc., v. NLRB, 907 F.2d 963, 974 (10th Cir. 1990); ``we 
held that defendant had constructive notice of an alternate theory of 
liability not described in the formal charge when the agency detailed 
that theory during its opening argument and at other points during the 
hearing and when the defendant's conduct revealed that it understood 
and attempted to defend against that theory'').\3\
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    \3\ See also Grider Drug #1 & Grider Drug #2, 77 FR 44070, 44077 
n.23 (2012) (holding that while the Government did not provide 
adequate notice of its intent to litigate an allegation in either 
the Show Cause Order or its pre-hearing statements, where 
respondents ``did not object that the allegation was beyond the 
scope of the proceeding and that they were denied adequate notice of 
it'' and ``fully litigated the issue,'' the allegation was litigated 
by consent) (citing Citizens State Bank, 751 F.2d at 213; Kuhn v. 
Civil Aeronautics Bd., 183 F.2d 839, 841-42 (D.C. Cir. 1950); and 
Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 358 (6th Cir. 
1992)).
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    ``The primary function of notice is to afford [a] respondent an 
opportunity to prepare a defense by investigating the basis of the 
complaint and fashioning an explanation that refutes the charge of 
unlawful behavior.'' Pergament United Sales, 920 F.2d at 135 (citation 
omitted). While the issue of whether an allegation ``has been fully and 
fairly litigated [by consent] is so peculiarly fact-bound as to make 
every case unique,'' id. at 136, ``the simple presentation of evidence 
important to an alternative [allegation] does not satisfy the 
requirement'' that a respondent be afforded with a full and fair 
opportunity to litigate the alternative allegation. I.W.G., 144 F.3d at 
688 (quoting NLRB v. Quality C.A.T.V., Inc., 824 F.2d 542, 547 (7th 
Cir. 1987) (other citation omitted)).
    ``An agency may not base its decision upon an issue the parties 
tried inadvertently. Implied consent is not established merely because 
one party introduced evidence relevant to an unpleaded issue and the 
opposing party failed to object to its introduction. It must appear 
that the parties understood the evidence to be aimed at the unpleaded 
issue.'' Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 358 (6th 
Cir.1992) (citation omitted). Accordingly, where the Government's case 
``focus[es] on another issue and [the] evidence of [an] uncharged 
violation [is] `at most incidental,' '' the Government has not 
satisfied its constitutional obligation to provide a full and fair 
opportunity to litigate the issue and it cannot rely on the incidental 
issue as the basis for imposing a sanction. Pergament, 920 F.2d at 136 
(quoting NLRB v. Majestic Weaving Co., 355 F.2d 854, 861-62 (2d Cir. 
1966)).
    Here, in the Government's initial prehearing statement, Respondent 
had notice that the Government intended to prove that all of the 
``prescriptions purportedly issued by PA Francis . . . after February 
14, 2011 were not authorized by'' her. ALJ Ex. 4, a 4. Moreover, in 
advance of the hearing, the Government provided Respondent with both 
the prescriptions it alleged were fraudulent as well as the search 
results from the New Mexico Prescription Monitoring Program, which 
listed each of the prescriptions which were purportedly issued by PA 
Francis to Respondent. ALJ Ex. 7, at 2. Furthermore, prior to the 
hearing, the parties engaged in extensive litigation over the 
admissibility of Government Exhibit 4, the exhibit containing the 
alleged fraudulent prescriptions, as well as over the PMP report. 
Finally, at the hearing, each of the prescriptions was offered into 
evidence and was the subject of testimony by witnesses for both 
parties, including Respondent who testified that each of the 
prescriptions had been authorized by PA Francis.
    Thus, Respondent clearly had fair notice that the Government was 
alleging that she had obtained controlled substances on eleven 
occasions by presenting the first prescription (which was authorized by 
PA Francis) for filling at a second pharmacy, and by forging ten other 
prescriptions which were presented and filled by multiple pharmacies. 
Nor can Respondent claim that she lacked notice as to the legal basis 
for the allegations, as the Government alleged and argued that her 
conduct violated 21 U.S.C. 843(a)(3). See ALJ Ex. 1, at 1-2 (Show Cause 
Order ] 3); ALJ Ex. 59, at 24-25 (Govt's Proposed Findings of Fact and 
Conclusions of Law, hereinafter, Gov. Post-Hrng. Br.).
    As noted above, Respondent also took exception to the ALJ's 
discussion at pages 62-64 of his decision. Therein, the ALJ concluded 
that Respondent had engaged in actionable misconduct which may threaten 
public health and safety, see 21 U.S.C. 823(f)(5), based on his finding 
that ``Respondent engaged in significant, intentional efforts to 
circumvent the efforts of [a pharmacist] in his attempt to execute his 
corresponding responsibility under the DEA regulations.'' R.D. at 62.
    Review of the Government's Prehearing Statement clearly shows that 
the Government provided Respondent with notice that it intended to 
elicit testimony from the pharmacist that he had received a faxed 
hydrocodone prescription for Respondent but that upon submitting the 
prescription information to Respondent's insurer, the pharmacy 
``received an insurance rejection message of `refill too soon''' and 
that a pharmacy technician had reported to the pharmacist ``that the 
same prescription had been filled the day'' before at another pharmacy. 
ALJ Ex. 4, at 3-4. The Government also provided notice that it intended 
to elicit testimony from the pharmacist that he ``attempted to call PA 
Francis to verify the prescription, but the call was intercepted by the 
Respondent,'' who told the pharmacist that she did not know the 
prescription had been sent to the other pharmacy and asked him to 
cancel the prescription. Id. at 4. The Government further provided 
notice that it intended to elicit testimony from the pharmacist that he 
had contacted the pharmacy which had already filled the prescription 
and determined that Respondent had picked up the prescription the day 
before. Id. At the hearing, both parties elicited testimony regarding 
this incident and the ALJ found the pharmacist's account credible.
    Thus, Respondent clearly had notice that her conduct related to 
this incident would be at issue in the proceeding. Moreover, this 
conduct is clearly probative of the allegation that Respondent engaged 
in obtaining controlled substances through fraud, and the Government 
relied on the pharmacist's testimony in support of its contention that 
Respondent forged the prescriptions issued under the PA's registration. 
Gov. Post-Hrng. Br. at 26.
    However, at no point in the proceeding did the Government contend 
that this conduct provided an independent basis to support a finding 
under factor five. Indeed, while in its

[[Page 29069]]

post-hearing brief, the Government argues that Respondent's ``testimony 
demonstrated a lack of candor and should weigh against granting 
Respondent's application,'' it did not argue that Respondent's acts in 
intercepting the pharmacist's phone calls and making a false statement 
to the pharmacist was separately actionable as misconduct under factor 
five. See id. at 30.
    While I agree with the ALJ that engaging in intentional and 
significant acts to obstruct a pharmacist who is attempting to verify 
the validity of a prescription constitutes ``conduct which may threaten 
public health and safety,'' the Government never advanced this theory 
in the proceeding. Thus, Respondent was never provided with the 
opportunity to argue as to why her conduct did not rise to the level of 
intentional and significant acts such as to warrant sanction under 
factor five. See Duane, 275 F.3d at 995. Accordingly, I hold that 
Respondent was not provided with fair notice that this conduct would 
also be considered under factor five.
    However, in light of the extensive evidence that Respondent 
obtained controlled substances by fraud or deception on eleven 
occasions and the ALJ's finding that she has not accepted 
responsibility for her misconduct, see R.D. at 66, my rejection of his 
conclusion that Respondent engaged in actionable misconduct under 
factor five when she attempted to circumvent the pharmacist's effort to 
verify the prescription does not alter the ultimate disposition of this 
matter. \4\
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    \4\ I do not adopt the ALJ's finding that the explanation 
Respondent provided on her DEA application lacked candor because she 
failed to include various information. R.D. at 68. At no point in 
this proceeding has the Government alleged that her explanation on 
the application was at issue in the proceeding, and at no point has 
it argued that her explanation lacked candor. In short, there is no 
basis for concluding that Respondent had fair notice that her 
explanation on the application would be at issue. Nor is there any 
basis for concluding that the parties consented to the litigation of 
the issue.
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Exception Two--The ALJ Erred When He Found That Twelve Dispensing 
Events Had Occurred

    Respondent also takes exception to the ALJ's findings that the 
prescriptions had resulted in the occurrence of twelve dispensing 
events, ``each signif[ying] an episode wherein Respondent actually 
obtained prescription narcotics.'' Exceptions, at 3 (citing R.D. at 20-
28). According to Respondent, this finding is not supported by the 
record because ``there was no evidence as to [the] actual `dispensing' 
of any prescriptions.'' Id. In support of this contention, Respondent 
further notes that ``a clear distinction was made during testimony 
between filling a prescription (i.e.[,] processing it for dispensing to 
a patient) and actually dispensing it to an individual'' and that the 
Government never presented the evidence necessary to show that the 
prescriptions were actually dispensed, i.e., the signature logs 
maintained by the pharmacy. Id.
    This argument is not persuasive. While it is true that a pharmacy's 
creation of a dispensing label for a filled prescription, as well as 
its inputting of data which was then submitted to the State's 
Prescription Monitoring Program, does not establish that the 
prescription was actually dispensed, Respondent testified that either 
she or members of her family picked up at least ten of the 
prescriptions before she attempted to change her story. Tr. 901-03, 
921. Moreover, when asked by her counsel if she knew whether ``there 
are some prescriptions waiting for you at some place,'' she answered: 
``No, I don't think so, but.'' Id. at 920. Respondent's testimony on 
this issue seems to go well beyond that of a faulty recollection 
induced by the passage of time and into the realm of being 
intentionally misleading.
    Indeed, her attempt to deny that the prescriptions were picked up 
defies logic, given that at the hearing she maintained that all of the 
prescriptions had been authorized by the PA (Tr. 822, 899, 910) and 
were issued to treat a legitimate medical condition (Tr. 903, 922). Nor 
does it makes sense that having previously presented a prescription, 
she would, in the absence of having been told that the pharmacy had 
declined to fill it, then present a further prescription to another 
pharmacy without first picking up the already filled prescription.
    In any event, even if Respondent (or her family) did not actually 
pick up any of the prescriptions, the evidence would still support a 
finding that she violated federal law. Here, the ALJ found that 
Respondent forged the PA's signature on the prescriptions and both the 
dispensing labels and the PMP report establish that the prescriptions 
were presented to the pharmacies. Thus, even if Respondent or her 
family members never picked up any of filled prescriptions, her conduct 
is still actionable as an attempt to obtain controlled substances by 
fraud or deception. See 21 U.S.C. 843(a)(3) & 846.

Exception Three--The ALJ Failed To Consider Evidence That Another 
Person Committed the Acts

    Respondent argues that the ALJ abused his discretion because he 
failed to consider evidence that two persons ``had access to the 
necessary process and information to perform the alleged acts in [her] 
name without her knowledge and/or agreement.'' Exceptions, at 9, 11. 
Respondent identifies these two persons as her husband, who was also 
taking hydrocodone, and Ms. Diminovich, Respondent's medical assistant 
at the clinic. Id. at 9-10.\5\
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    \5\ Respondent also maintains that PA Francis had prescribed 
hydrocodone to her husband. Exceptions, at 10. PA Francis testified 
that while she had written prescriptions for Respondent's husband, 
which possibly included pain medication, she did not recall if these 
included narcotics. Tr. 249.
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    I reject the exception. Even ignoring the fundamental inconsistency 
between Respondent's contention and her testimony that the 
prescriptions were lawfully prescribed to her by PA Francis, the 
exception is unsupported by anything bordering on substantial evidence.
    As for whether Respondent's husband was actually forging the 
prescriptions, even assuming that he had received hydrocodone 
prescriptions from PA Francis, no evidence was put forward that he had 
access to either the electronic medical records system (which included 
software for creating and printing a prescription) or to PA Francis's 
prescription pads. Thus, Respondent's theory is pure conjecture.
    As for whether Ms. Diminovich was forging the prescriptions, it is 
true that she had access to the clinic's electronic medical records 
system. Moreover, it seems possible that she could have had access to 
the PA's prescription pad. However, while Respondent called Ms. 
Diminovich as a witness, Diminovich was never asked if she had forged 
any of the prescriptions; nor was any other evidence put forward that 
Dimonovich was forging prescriptions and using Respondent's name as the 
patient. Indeed, consistent with her theory that the prescriptions were 
authorized by PA Francis, Respondent elicited testimony from Ms. 
Diminovich that PA Francis ``would fill out the script for [Respondent] 
personally'' and either hand it to Respondent or leave it on her desk. 
Tr. 732. Respondents' theory that Ms. Diminovich was forging and 
filling the prescriptions and filling them in the former's name is thus 
not supported by anything more than the evidence that she had access to 
the clinic's prescribing

[[Page 29070]]

software.\6\ Accordingly, I reject the exception.\7\
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    \6\ While Ms. Diminovich testified that she had left the clinic 
after she was accused of forging a document, the record does not 
establish the nature of the document she allegedly forged. As for 
her testimony that PA Francis had written the prescriptions, as 
discussed under Exception Four, the ALJ did not find Ms. 
Diminovich's testimony credible when considered against the 
testimony of the Government's witnesses.
    \7\ The Government notes the testimony of the pharmacist who 
questioned Respondent's prescription to the effect that ``in order 
to pick up a controlled substance prescription, an individual would 
need to provide picture identification, which is then recorded in 
the[] pharmacy computer system.'' Gov. Response to Respondent's 
Exceptions, at 9. While the Government attempted to introduce 
various documents which it represented as being pharmacy pick-up 
logs, it did not succeed. Moreover, the Executive Director of the 
New Mexico Pharmacy Board testified that while a ``person picking up 
the controlled substance prescription must be identified with a 
government-issued photo ID,'' the person need not be the actual 
patient. Tr. 446-7.
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Exception Four--The ALJ's Credibility Determinations Were Arbitrary

    Finally, Respondent argues that the ALJ arbitrarily discounted the 
testimony of Ms. Diminovich and that he ignored ``the context'' of her 
testimony. Exceptions, at 11. Respondent also contends that the 
Government's witnesses, who had ``the exact same `issues' in their 
testimony, were called completely credible by the ALJ provided they 
blamed'' her. Id.
    Respondent does not, however, take exception to the ALJ's findings 
as to her own testimony. Of note, the ALJ found that ``Respondent's 
testimony throughout this hearing was punctuated by internal 
inconsistencies, implausibility, and chronic equivocation.'' R.D. at 
46. The ALJ further found that ``there were several times where her 
answers seemed to evolve with objective evidence and dates she was 
confronted with.'' Id.
    As for Respondent's contention that the ALJ arbitrarily discounted 
Ms. Diminovich's testimony, the argument is based largely on her 
testimony that she observed animosity between Respondent and Dr. Edmond 
(the co-owner of the clinic), PA Francis, and the clinic's human 
resources manager. Exceptions, at 11-12. To be sure, in explaining why 
he gave less weight to Ms. Diminovich's testimony, the ALJ relied on 
her failure to testify as to whether the animosity pre-dated or post-
dated the discovery of the prescriptions at issue. See R.D. at 30. Nor 
was this the only reason the ALJ gave for giving less weight to her 
testimony. See id. at 30-31 (discussing Ms. Diminovich's testimony that 
she never observed Respondent being under the influence of controlled 
substances).\8\
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    \8\ I acknowledge that it is plausible that Ms. Diminovich may 
never have observed Respondent being under the influence of 
narcotics while at the clinic. Respondent may have developed 
tolerance to the medication or she may have been diverting the 
narcotics to others. However, I need not adopt each of the ALJ's 
reasons for giving less weight to her testimony to adopt the ALJ's 
factual findings, which give no weight to her testimony that PA 
Francis wrote narcotic prescriptions for Respondent on ``multiple'' 
occasions. Tr. 733.
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    However, I need not decide whether these two reasons provide a 
sufficient basis to support the ALJ's credibility determination because 
the ALJ also explained that ``much of Ms. Diminovich's testimony was 
too vague and lacking in detail to stand up against other record 
evidence.'' R.D. at 31. As the ALJ further explained, while Ms. 
Diminovich testified that ``she saw PA Francis prescribe controlled 
substances to the Respondent and hand the scripts over, [she] never 
sa[id] when or how often, and [did] not provide details about a single 
such event she recalls.'' Id. at 31. So too, based on Ms. Diminovich's 
testimony that she had left the clinic after five years because she had 
been accused by a clinic employee of forging some undisclosed document, 
the ALJ concluded that she could not be viewed ``as a completely 
impartial witness.'' Id.
    In short, to resolve the factual dispute as to whether PA Francis 
had authorized the prescriptions or Respondent was forging them, the 
ALJ was required to make credibility determinations with respect to the 
testimony presented by the witnesses for the Government and those for 
Respondent. Notably, with regard to the testimony of the Government's 
witnesses, Respondent makes only the conclusory assertion that their 
testimony raised ``the exact same issues'' as her witnesses, Exceptions 
at 11, and fails to cite to any specific portions of their testimony 
which she asserts lacked credibility. The ALJ was, however, in the best 
position to observe the demeanor of the witnesses, and having 
considered the ``consistency and inherent probability of the 
testimony,'' I find no reason to reject the ALJ's credibility 
determinations and findings of fact. Universal Camera Corp. v. NLRB, 
340 U.S. 474, 496 (1951).
    Accordingly, I reject the exception. I further adopt the ALJ's 
findings of fact and legal conclusions that with the exception of the 
February 14, 2011 prescription (which she filled that same day), 
Respondent violated 21 U.S.C. 843(a)(3) on eleven separate occasions by 
presenting the already-dispensed February 14, 2011 prescription to a 
second pharmacy for filling, as well as by forging the ten other 
prescriptions (or presenting the forged prescription to a second 
pharmacy). See R.D. at 52-55 (citing 21 U.S.C. 843(a)(3); 21 CFR 
1306.04(a)). Moreover, while I adopt the ALJ's factual finding and 
legal conclusions that Respondent unlawfully obtained controlled 
substances pursuant to the aforesaid prescriptions, see R.D. at 55, 
even if Respondent did not obtain possession of the controlled 
substances in each instance, her misconduct is still actionable as an 
attempt to obtain controlled substances by fraud or misrepresentation. 
See 21 U.S.C. 846. So too, I adopt the ALJ's legal conclusions with 
respect to the findings of the Iowa Board. See R.D. at 59-60.
    I therefore adopt the ALJ's conclusion of law that the Government 
has established a prima facie case to deny Respondent's application.\9\ 
R.D. at 65. Finally, because I agree with the ALJ's findings and 
conclusion of law that Respondent has not acknowledged her misconduct 
nor demonstrated that she had undertaken sufficient remedial steps to 
rebut the Government's prima facie case, as well as his finding that 
Respondent's actions were especially egregious, I will adopt his 
recommendation that I deny her application.
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    \9\ I do not adopt the ALJ's discussion of factor two to the 
extent it states that the factor manifests Congress's 
``acknowledgement that the . . . quantitative volume in which an 
applicant has engaged in the dispensing of controlled substances may 
be [a] significant factor[] to be evaluated in'' the public interest 
determination. R.D. at 51. So too, I decline to publish the ALJ's 
discussion of the substantial evidence test, the degree of deference 
owed the ALJ's findings, and the scope of the Agency's discretion. 
See Michael A. White, 79 FR 62957, 62957 n.2 (2014). It suffices to 
say that the Agency adheres to the principles set forth in Universal 
Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951).
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Order

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

    Dated: May 6, 2015.
Michele M. Leonhart,
Administrator.

Anthony S. Yim, Esq., for the Government
Billy R. Blackburn, Esq., for the Respondent

[[Page 29071]]

RECOMMENDED RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION 
OF THE ADMINISTRATIVE LAW JUDGE

    Chief Administrative Law Judge John J. Mulrooney, II. On July 13, 
2012, the Deputy-Assistant Administrator of the Drug Enforcement 
Administration (DEA) issued an Order to Show Cause (OSC) proposing to 
deny the application \1\ of Jana Marjenhoff, D.O. (Respondent), for a 
DEA Certificate of Registration (COR). In its OSC, the Government avers 
that the Respondent's application should be denied because the granting 
of a COR to the Respondent would be inconsistent with the public 
interest as that term is defined under the Controlled Substances Act 
(CSA). 21 U.S.C. 823(f) (2012). On August 20, 2012, the Respondent, 
representing herself pro se, filed a timely request for a hearing.\2\
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    \1\ A printed copy of the Respondent's on-line application was 
received into the record. Gov't Ex. 1.
    \2\ In her brief, the Respondent points to the Agency's 
``extreme delay'' in issuing an OSC almost a year and a half after 
her application for a DEA COR. ALJ Ex. 60, at 1. In this regard, it 
is worthy of note that the charges of misconduct that constitute the 
body of the Government's allegations in this matter relative to the 
Respondent's time practicing in New Mexico commenced a month after 
she submitted this application to receive a COR in New Mexico.
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    A hearing was originally conducted in this matter on February 5, 
2013, in Arlington, Virginia (First Hearing). However, because the 
Administrative Law Judge presiding over that hearing unexpectedly 
retired before issuing a recommended decision, this case was reassigned 
to another Administrative Law Judge (Second Administrative Law Judge), 
who conducted a supplemental hearing on April 10, 2013, in Albuquerque, 
New Mexico (Supplemental Hearing). The Second Administrative Law Judge 
certified the record and forwarded a recommended decision to the 
Administrator.
    The Administrator reviewed, reversed, and remanded the recommended 
decision issued by the Second Administrative Law Judge. In an order 
dated December 12, 2013 (Remand Order), the Administrator remanded the 
case for a new hearing to be conducted by another Administrative Law 
Judge,\3\ and I designated myself to preside at the remanded 
proceedings.
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    \3\ The Administrative Law Judge presiding at the Supplemental 
Hearing found that the Respondent's exit from the hearing room, 
based on a medical emergency that resulted in her departure from the 
courthouse via ambulance and an attendant hospital stay, constituted 
an implied waiver of her right to be present at her hearing. 
Consequently, the Supplemental Hearing was conducted entirely in 
absentia. The (unarguably regrettable) decision by the Second 
Administrative Law Judge to proceed in absentia (not surprisingly) 
formed a significant basis (although clearly not the only basis) for 
the Administrator's decision to remand the case for a new hearing 
(ALJ Ex. 9, slip op. at 6) by a different Administrative Law Judge 
and, unfortunately, resulted in a significant additional delay in 
the adjudication of this matter. On the positive side, as a result 
of the Administrator's Remand Order, the Respondent, who represented 
herself at the First and Second Hearings, was the beneficiary of 
skilled, diligent counsel at the Hearing on Remand, where any 
perceived due process issues ascribed to the hearing in absentia 
could be and were addressed and cured.
---------------------------------------------------------------------------

    At a January 14, 2014 on-the-record status hearing conducted in 
Albuquerque, New Mexico, the Respondent, representing herself pro 
se,\4\ signaled her intent to proceed with a new hearing. Current 
counsel filed a notice of appearance on February 10, 2014, and a 
request on his part for additional time to prepare was granted. ALJ Ex. 
37, at 1 n.1. On April 22-23, 2014, a hearing was conducted in this 
matter in Albuquerque, New Mexico (Hearing on Remand).
---------------------------------------------------------------------------

    \4\ From the outset and repeatedly throughout the course of 
these protracted proceedings, the Respondent was advised of her 
right to procure counsel. 21 CFR 1316.50 (2013). While she did 
retain counsel for a short period of time during the prehearing 
procedures prior to the First Hearing, that counsel withdrew from 
the case, and she opted to represent herself pro se for a relatively 
large swath of time during the pendency of the proceedings. The 
Respondent's fluctuating representation status also resulted in 
additional adjudication delays. During the course of the 
Supplemental Hearing, the Respondent initially sought to be 
represented by her (non-attorney) spouse under the theory that he 
falls within the regulatory definition of her employee within the 
meaning of 21 CFR 1316.50. The Administrator's Remand Order cites an 
absence of required findings associated with the Second 
Administrative Law Judge's denial of this request as an additional 
basis to justify remanding the case. ALJ Ex. 9, slip op. 5. During 
the course of the remanded proceedings, the Respondent withdrew her 
request to be represented by her husband at an on-the-record Status 
Hearing conducted on January 14, 2014, and, during the time afforded 
to her to do so, procured the representation of a qualified 
attorney.
---------------------------------------------------------------------------

    The issue ultimately to be adjudicated by the Administrator in 
these remanded proceedings, with the assistance of this recommended 
decision, is whether the record as a whole establishes by substantial 
evidence that the Respondent's application for registration with the 
DEA should be denied on the grounds alleged by the Government.
    After carefully considering the testimony elicited at the Hearing 
on Remand, the admitted exhibits, the arguments of the parties,\5\ and 
the record as a whole, I have set forth my recommended findings of fact 
and conclusions of law below.\6\
---------------------------------------------------------------------------

    \5\ The due date that was set for the submission of closing 
briefs incorporated additional time that was requested by the 
Government. Tr. 976-79.
    \6\ Because the December 12, 2013 Remand Order directed that a 
``new hearing'' be conducted in this matter (ALJ Ex. 9, slip. op. 
7), the testimony and evidence gathered in the previous hearings in 
this case, to the extent they were not re-introduced and received 
into the record, were not considered for purposes of deciding on the 
merits on remand. ALJ Ex. 29, at 4. Both parties were given the 
opportunity to file supplemental prehearing statements and to 
present evidence at the Hearing on Remand. Id. at 3-4. The testimony 
from the previous hearings (ALJ Ex. 8) was made available to the 
parties for purposes of cross-examination. ALJ Ex. 29, at 4.
---------------------------------------------------------------------------

The Allegations

    In its OSC and subsequent prehearing statements, the Government 
alleges that the COR application filed by the Respondent should be 
denied as inconsistent with the public interest. In support of the 
denial it seeks based on the public interest, the Government avers that 
the Respondent, ``from February 2011 through January 2012, . . . forged 
approximately eight prescriptions for [herself] by using another 
individual's DEA registration number . . . without that person's 
knowledge, permission, or consent'' in order to obtain controlled 
substances.\7\ The Government alleged that the Respondent did so in 
violation of 21 U.S.C. 843(a)(3), 21 CFR 1306.04 (2013), and N.M. Stat. 
Ann. Sec.  30-31-23 (West 2013).\8\
---------------------------------------------------------------------------

    \7\ ALJ Ex. 1, at 1.
    \8\ Id. at 2.
---------------------------------------------------------------------------

The Stipulations of Fact

    The Government and the Respondent have entered into stipulations 
regarding the following matters:
    (1) Respondent's prior DEA Certificate of Registration was 
BM1443681. In the absence of any renewal application, it expired by its 
own terms on January 31, 2006.
    (2) Respondent does not currently possess a DEA Certificate of 
Registration.
    (3) On January 17, 2011,\9\ the Respondent applied for a DEA 
Certificate of Registration in Schedules II through V.
---------------------------------------------------------------------------

    \9\ While the parties stipulated to an application date of 
January 17, 2011, the record evidence reflects an application date 
of January 14, 2011. Tr. 631-32; Gov't Ex. 1, at 1; Gov't Ex. 2, at 
1. The 3-day variance regarding the application date presents no 
impediment to an adjudication of this matter on the merits.
---------------------------------------------------------------------------

    (4) Respondent is licensed as an osteopathic physician in the State 
of New Mexico pursuant to license number A-1590-10. This license is 
active.\10\
---------------------------------------------------------------------------

    \10\ Although this stipulation by the parties originally 
contained the additional phrase ``and set to expire by its own terms 
on July 1, 2013,'' the fact that this date expired well before the 
commencement of the Hearing on Remand renders the relevance of this 
portion of the stipulation obsolete.
---------------------------------------------------------------------------

    (5) All medications described in Government Exhibit 6 as being

[[Page 29072]]

prescribed to the Respondent are Schedule III controlled 
substances.\11\
---------------------------------------------------------------------------

    \11\ The parties reached this stipulation during the course of 
the hearing in this matter. Tr. 747-48.
---------------------------------------------------------------------------

The Evidence

The Government's Evidence

The Government's Witnesses

    The Government's case-in-chief rested on the testimony of five 
witnesses: Physician's Assistant Raphaela Francis, John Alvis, the 
pharmacist-in-charge (PIC) of a Walmart Pharmacy located in Edgewood, 
New Mexico, Dr. Jeremy Edmonds, D.O., New Mexico Pharmacy Board (NM 
Pharmacy Board) Executive Director (Exec. Dir.) Larry Loring, and DEA 
Diversion Investigator (DI) Randall Bencomo.
    Raphaela Francis testified that she is a physician's assistant (PA) 
who is currently licensed and practicing in New Britain, Connecticut, 
but that she had previously worked as a PA at the McLeod Medical Center 
(McLeod Medical) in Moriarty, New Mexico from 2008 until August 2012. 
Tr. 173-74, 215-16. PA Francis testified that, while working at McLeod 
Medical, she maintained a DEA COR, and she knew and worked with the 
Respondent. Tr. 174.
    PA Francis stated that her working relationship with the Respondent 
at the time they worked together at McLeod was a good one, that the 
Respondent, who ``had lots more medical experience,'' was a mentor to 
her, and that Francis never observed behavior that she would classify 
as drug-seeking, impaired, or erratic from the Respondent at work. Tr. 
219, 261. According to PA Francis, on February 14, 2011, the Respondent 
approached her at work and asked to be placed on her schedule for 
chronic neck pain. Tr. 175. The Respondent told Francis that she had 
made arrangements to see a pain management specialist in Albuquerque, 
but because the pain specialist, Dr. Pamela Black, could not see her 
for several weeks, she needed a single prescription for pain medication 
to tide her over for one month. Tr. 175-77, 182-84, 221-22. PA Francis 
testified that, consistent with McLeod Medical procedures, before she 
saw the Respondent as a patient, Leilani, the medical assistant 
assigned to Francis, took an initial medical history on a patient 
questionnaire, and that the Respondent, who had brought her own x-rays, 
was added onto Francis's patient schedule for the end of the day. Tr. 
178-81, 219. Equipped with the completed patient questionnaire, PA 
Francis took her own history from the Respondent and reviewed the x-ray 
films. Tr. 181. Francis testified that she recalled that the x-ray 
imaging showed that the Respondent's neck had signs of prior surgery. 
Tr. 181-82, 220. She also remembered that the Respondent was 
complaining of headaches. Tr. 182. Francis recalled that, in response 
to her inquiry, the Respondent told her that hydrocodone had been 
effective for her in the past. Tr. 184. PA Francis's opinion was that, 
under the circumstances, the hydrocodone requested by the Respondent 
was appropriate as a short-term (not long-term) measure, so she 
prepared a prescription and handed it to the Respondent.\12\ Tr. 184-
85, 188, 227; Gov't Ex. 3. Francis was initially unambiguous in stating 
that this scrip was ``the one and only prescription'' she wrote for the 
Respondent. Tr. 185; accord Tr. 202, 240. When pressed, however, she 
recalled that she may have also treated the Respondent on another 
occasion for nausea with a non-controlled substance administered by 
injection in the office. Tr. 241, 243-44.
---------------------------------------------------------------------------

    \12\ During her testimony, PA Francis mistakenly characterized 
this medication as being listed under Schedule II (Tr. 230), when, 
in fact, it is a Schedule III controlled substance. Stipulation 5.
---------------------------------------------------------------------------

    According to PA Francis, the Respondent called off work two days 
after Francis saw her as a patient, telling Dr. Edmonds, the office 
supervising doctor/facility co-owner, that she had been to a hospital 
emergency room experiencing abdominal pain that was likely a reaction 
to the hydrocodone prescribed by Francis. Tr. 189-90, 193. Shortly 
after his conversation with the Respondent, Dr. Edmonds questioned PA 
Francis about the prescription and told her that, from that point 
forward, McLeod Medical employees were no longer permitted to write 
narcotic prescriptions for other employees. Tr. 192, 239. PA Francis 
testified that she complied with the new policy from the time it was 
conveyed to her. Tr. 194.
    PA Francis had no more cause to consider her prescription to the 
Respondent until September 2, 2011, when she received a call from a 
pharmacist in Moriarty, New Mexico, informing her that a Walmart 
pharmacist named John Alvis needed to speak with her. Tr. 195-96. When 
Francis returned the call, Alvis told her he came upon some scrips 
purportedly written by Francis for the Respondent that he felt were 
likely forgeries. Tr. 197-99. Alvis went on to say that he was forced 
to utilize an intermediary pharmacist to contact Francis because 
multiple telephonic attempts to do so had been intercepted by the 
Respondent, and he advised Francis to secure a state prescription 
monitoring program (PMP) report on the Respondent and to contact the NM 
Pharmacy Board. Tr. 199-200, 202. When Francis queried the PMP system, 
she was surprised to learn that, although she had written only one 
controlled substance prescription for the Respondent, the system 
reflected that twelve had been dispensed. Tr. 200-02.
    PA Francis testified that she brought the PMP report to the McLeod 
Medical human resources (HR) director who, in turn, notified Dr. 
Edmonds. Tr. 202-03.
    Upon reviewing copies of the scrips listed in the PMP report and 
issued over her name and COR number after the single February 14, 2011 
scrip she did write, PA Francis testified that not a single one bore 
her true signature and that all were forgeries. Tr. 205-06, 261. The 
witness indicated that she did not personally see anyone create these 
scrips, but she did know that they were not signed by her. Tr. 261.
    Francis explained that, during the time she worked at McLeod 
Medical, scrips could be generated by hand-writing them on scrip pads 
or by producing them electronically (e-scrip) from the system that 
maintained the office medical records. Tr. 207. The e-scrip would be 
printed out on blue security paper loaded into a printer designated for 
that purpose and hand-signed by the prescriber. Tr. 207, 211, 226. 
Through the use of a drop-down list, the medical record system allowed 
any McLeod Medical employee with prescriber access to create an e-scrip 
for any patient in the practice over the name of any authorized 
prescriber in the practice who has seen that patient. Tr. 208, 215, 
253-57, 260. Access to the system for prescribing controlled substances 
is password-protected, but as a McLeod Medical provider, the Respondent 
had complete access to the system, as did Francis, Dr. Edmonds, and a 
part-time nurse practitioner named Linda Agnes. Tr. 208-13, 217. The 
controlled substance scrip can be hand-carried by the patient, faxed to 
a pharmacy by a McLeod staff member,\13\ or a staff member can even 
phone in a prescription to a pharmacy so long as there is a hard-copy 
follow-up scrip. Tr. 228-30.
---------------------------------------------------------------------------

    \13\ Francis testified that McLeod Medical office policy on the 
disposition of hard copies of faxed prescriptions was inconsistent. 
When a scrip was faxed, sometimes the hard copy would also be handed 
to the patient, sometimes it would be shredded, and other times it 
would be retained in the patient's chart. Tr. 233-35.
---------------------------------------------------------------------------

    There is no indication that PA Francis has anything to gain or lose 
by the outcome of this adjudication. In light of

[[Page 29073]]

the fact that Francis currently works for a different employer in a 
different state and no longer answers to Dr. Edmonds or McLeod Medical, 
the Respondent's argument that her credibility was suspect because she 
was somehow ``in fear of her career'' because she had been reprimanded 
\14\ for writing a controlled substance prescription for the 
Respondent, and/or continued to do so after being directed not to is 
not supported in the record by anything beyond conjecture, and is 
simply unpersuasive. Her hearing testimony, much of which was 
corroborated by other witnesses, was sufficiently objective, detailed, 
plausible, and internally consistent to be considered fully credible in 
this recommended decision.
---------------------------------------------------------------------------

    \14\ ALJ Ex. 60, at 6, 8, 15. Furthermore, the position that PA 
Francis was reprimanded at all flies in the face of the Respondent's 
testimony that no policy regarding the prescribing of controlled 
substance to other employees was ever put in place at McLeod. Tr. 
721, 824.
---------------------------------------------------------------------------

    The Government also elicited the testimony of John Alvis, the 
pharmacist-in-charge (PIC) at the Walmart Pharmacy in Edgewood, New 
Mexico (Walmart Pharmacy Edgewood), where he has worked as a pharmacist 
for the last twenty-nine years. Tr. 264-65. PIC Alvis testified that he 
was familiar with the Respondent because she was a local practitioner 
with whom he had professional contact, and because she and her family 
had been customers of his pharmacy. Tr. 265-67. In the early afternoon 
of August 31, 2011, PIC Alvis received a phone call from the Respondent 
who stated that her daughters were coming by the pharmacy to pick up 
prescriptions for themselves, and that she hoped to have them also pick 
up a prescription for her during the same visit. Tr. 266-67. The 
Respondent explained to Alvis that she would contact PA Francis to 
``get that [prescription] faxed in right away.'' Tr. 267. Alvis also 
recalled that the Respondent told him that she was having trouble with 
her insurance and requested that the pharmacy bill her for the 
prescription in cash, without submitting a claim through her insurance 
carrier. Tr. 268-69. PIC Alvis testified that, while a request to have 
several medications picked up at once was not particularly out of the 
ordinary, a request to refrain from processing a scrip through a 
customer's insurance company where Medicare billing was not involved 
was not typical. Tr. 268-70. Alvis described such a request, even 
regarding Medicare billing, as ``fairly rare.'' Tr. 270.
    Although Alvis apparently voiced no objection to the Respondent's 
request to process the scrip for cash, owing to the work volume of the 
day and the speed at which the faxed prescription reached the pharmacy, 
a staff member allowed the prescription to be electronically submitted 
as a claim to the Respondent's insurance company. Tr. 270-71. The 
Respondent's insurance company rejected the claim after determining 
that the refill was too early, based on medication that had already 
been dispensed to the patient. Tr. 270, 272. PIC Alvis testified that 
once he learned from the insurance company notice that the Respondent 
was attempting to fill a prescription for the same controlled substance 
too early, he had an obligation to investigate the issue. Tr. 279-80. 
At PIC Alvis's direction, the pharmacy staff member contacted \15\ the 
Respondent's insurance company and was informed that the coverage 
rejection was based on the fact that the same medication had been 
dispensed to the Respondent at May Pharmacy the previous day. Tr. 275-
76. Based on the information he had at that moment, PIC Alvis directed 
his staff member to reach out to PA Francis at McLeod Medical, the 
prescriber depicted on the scrip. Tr. 281. A McLeod Medical staff 
member indicated that Francis was unavailable and took a message to 
have Francis return the call to the pharmacy. Tr. 281-82.
---------------------------------------------------------------------------

    \15\ The pharmacy employee was clearly an individual with no 
interest in these proceedings. PIC Alvis (a 29-year veteran 
pharmacist) testified that he was present and listening to his 
employee as she conducted these telephone inquiries at his 
direction, that he could hear her responses as the phone call was 
proceeding, that it is ``standard practice'' to rely upon this type 
of communication in the pharmacy setting, and that the employee who 
took the call had a duty to receive and convey this type of 
information accurately. Tr. 272-76. In short, even over the 
Respondent's timely objection, there was ample support in the record 
to find this hearsay evidence sufficiently reliable to rely upon it 
to a support substantial evidence determination in these 
administrative proceedings. 5 U.S.C. 556(d). See Richardson v. 
Perales, 402 U.S. 389, 402 (1971) (holding that signed reports 
prepared by licensed physicians were correctly admitted at Social 
Security disability hearing); Echostar Comm's Corp. v F.T.C., 292 
F.3d 749, 753 (D.C. Cir. 2002) (holding hearsay admissible at 
administrative hearing so long as it bears satisfactory indicia of 
reliability); Bennett v. NTSB, 66 F. 3d 1130, 1137 (10th Cir. 1995) 
(holding hearsay admissible at administrative hearing to the extent 
it is reliable and probative); Hoska v. Dep't of the Army, 677 F.2d 
131, 138-39 (D.C. Cir. 1982) (holding hearsay admissible at 
administrative hearing where witness is disinterested, statements 
are consistent, and access is provided prior to hearing); Mark P. 
Koch, D.O., 79 FR 18714, 18717 (2014) (finding an affidavit 
sufficiently reliable to be considered as substantial evidence at a 
DEA administrative hearing); Fred Samimi, M.D., 79 FR 18698, 18712 
(2014) (holding hearsay statements are admissible at DEA 
administrative proceedings and can constitute substantial evidence 
so long as they bear sufficient indicia of reliability).
---------------------------------------------------------------------------

    Shortly after the phone message was left at McLeod Medical for 
Francis, the Respondent's daughters (whom Alvis recognized as 
established customers) arrived at Walmart Pharmacy Edgewood to pick up 
the Respondent's medication and some other medication. Tr. 282-83. 
Alvis told the daughters that he needed to check with the prescriber on 
their mother's prescription, and they left the pharmacy. Tr. 282-84. 
``Almost immediately'' after the Marjenhoff daughters exited the 
pharmacy, PIC Alvis received a call from the Respondent, who informed 
Alvis that she understood he was trying to contact Dr. Black about her 
prescription. Tr. 284. PIC Alvis clarified that he was trying to reach 
PA Francis and that he had not yet heard back from her. Tr. 284. The 
Respondent explained to Alvis that there was some ``confusion'' because 
the prescription he was inquiring about was also sent to May Pharmacy 
without her knowledge, and that Alvis should ``just disregard this 
prescription.'' Tr. 284-85.
    Following Alvis's conversation with the Respondent, a pharmacy 
staff member received a return call from someone at McLeod Medical, 
asking if the pharmacy still needed to speak with PA Francis.\16\ Tr. 
285. When the pharmacy technician told the McLeod Medical staff member 
that she still needed to speak with Francis, the call was placed on 
hold, and the Respondent picked up the line and identified herself. Tr. 
825. The technician informed the Respondent that she was holding to 
speak with PA Francis, not with the Respondent. The Respondent told the 
technician, ``I know it's concerning my prescription. I've already 
spoken to John [Alvis]. There's some confusion with that. I've told 
John [Alvis] to cancel that prescription, and so we're good,'' and 
unilaterally ended the call by hanging up the phone. Tr. 286-88.
---------------------------------------------------------------------------

    \16\ Alvis testified that he was present for the conversation 
and could even overhear the voice on the phone from McLeod Medical. 
Tr. 287.
---------------------------------------------------------------------------

    PIC Alvis testified that this development deepened his level of 
concern about the prescription. Tr. 288. Additionally, Alvis compared 
the faxed scrip with prior, reliable examples on file and concluded 
that the purported signature of PA Francis on the scrip at issue was 
not consistent with the signatures found on the prior scrips. Tr. 302-
04. The next morning, Alvis telephoned Kenny Romp, the pharmacist at 
May Pharmacy, who at one time worked for Alvis. Tr. 290-93. Pharmacist 
Romp indicated that he specifically recalled the prescription in 
question. He told Alvis that he remembered that the Respondent,

[[Page 29074]]

herself, picked up the medication, and that he also recalled it was a 
partial fill because May Pharmacy did not have the entire amount called 
for by the prescription in stock. Tr. 293-95. This revelation that the 
Respondent actually picked up the medication the day before her phone 
calls to Alvis flew in the face of the Respondent's representations on 
the phone that she did not know that her prescription had been filled 
at May Pharmacy, and her assertion that the early refill insurance 
notification was the result of some sort of an inadvertent mix-up. Tr. 
295-96. The fact that the Respondent picked up her medication at May 
Pharmacy the day before she told Alvis she did not know it had been 
dropped off there left little doubt that there was more afoot than an 
innocent mix-up.
    Alvis then devised a plan wherein he enlisted the help of a third 
local pharmacist, Reid Rowe, to reach out to PA Francis and relay a 
message that Alvis needed to speak to her privately and directly. Tr. 
296-97. Alvis's plan was successful, and, the following day, he finally 
received a call from PA Francis. Tr. 298-99. Francis apologized for not 
calling back, and related to Alvis that she had actually been standing 
next to the Respondent when the pharmacy technician called. Francis 
explained to Alvis that based on what she heard of the call, she 
assumed that the matter had been resolved as a benign insurance issue. 
Tr. 301. When PIC Alvis conveyed the details of the current 
prescription and asked Francis to verify it and indicate whether he had 
her authorization to dispense, Francis informed him that she had not 
written a controlled substance prescription for any McLeod Medical 
employee since February 14, 2011. Tr. 301-02. When PIC Alvis let 
Francis know that his pharmacy was in possession of other scrips 
purportedly authorized by her on behalf of the Respondent and that he 
questioned the validity of the signatures, PA Francis asked him to 
provide copies. Tr. 304. Alvis faxed copies of some scrips that had 
been filled by his pharmacy on the Respondent's behalf over PA 
Francis's purported signature to the McLeod Medical HR manager. Tr. 
305-09. The HR manager, in turn, sent PIC Alvis a copy of a 
corresponding complaint filed by PA Francis with the NM Board of 
Osteopathic Medical Examiners regarding the incident, which Alvis 
forwarded through his internal, corporate channels and to the NM 
Pharmacy Board. Tr. 309-11, 316. The prescription was then deactivated 
at Walmart Pharmacy Edgewood and not dispensed. Tr. 335.
    PIC Alvis is a witness with no stake in the outcome of the 
case.\17\ His testimony, which was largely corroborated by other 
sources in the record, was enhanced by the professionalism with which 
he executed his corresponding responsibilities as a pharmacist, and 
sufficiently objective, detailed, plausible, and internally consistent 
to be fully credited in this recommended decision.
---------------------------------------------------------------------------

    \17\ In her brief, the Respondent argues that she and PIC Alvis 
``had previously been in strong disagreements . . . in regards to 
his lack of competence.'' ALJ Ex. 60, at 4. However, the record is 
unsupportive. The Respondent testified that she ``switched 
pharmacies, mainly over to May's [Pharmacy] because [she] had a 
problems with [Alvis], in that on a couple of occasions he 
prescribed the wrong medication to [her] patients, and [she] 
reprimanded him.'' Tr. 935. Apart from the reality that pharmacists 
do not ``prescribe'' medication, the objective evidence of record is 
that, notwithstanding the multiple pharmacy options available to 
(and used by) the Respondent, she continued to patronize the Walmart 
Pharmacy Edgewood that Alvis managed. Additionally, the record 
demonstrates that the Respondent was not only sufficiently satisfied 
with Alvis that she selected his pharmacy on one of the occasions 
where she illegitimately utilized the February 14, 2011 prescription 
from PA Francis (Gov't Ex. 3, at 1), but she was sufficiently 
comfortable with her relationship with Alvis to call him on August 
31, 2011 to request that his pharmacy refrain from submitting the 
prescription to her insurance company, and, once again, when Alvis 
declined to dispense the medication to her daughters. Tr. 268-69, 
282. Indeed, the PMP/Marjenhoff Report reflects as many dispensing 
events through Walmart Pharmacy Edgewood as occurred at May 
Pharmacy. Gov't Ex. 6, at 2-3, 13-14.
---------------------------------------------------------------------------

    The Government also presented the testimony of Dr. Jeremy Edmonds, 
D.O. Although Dr. Edmonds testified that is currently employed at 
Presbyterian Healthcare Services in Albuquerque, during all times 
relevant in these proceedings, he served as the medical director and 
co-owner of McLeod Medical and supervised the Respondent and all other 
staff members at McLeod. Tr. 358-60. Dr. Edmonds also testified that he 
is on the New Mexico Board of Osteopathic Medicine. Tr. 387.
    Dr. Edmonds recalled that, when the Respondent was hired by McLeod 
Medical, she did not possess a COR. Tr. 382. According to Edmonds, the 
work-around for this issue was that the Respondent would see patients 
and ``draft up'' a controlled substance prescription over her name when 
necessary, but that Dr. Edmonds or PA Francis would co-sign the scrip 
and manually fill in their respective COR numbers. Tr. 382-85. Edmonds 
testified that all providers (including the Respondent) were 
``practicing primary care [medicine and] all treated very similar 
problems.'' Tr. 386. Consistent with the testimony of PA Francis, Dr. 
Edmonds explained that prescriptions in the office could be generated 
by writing on a pad or through the e-scrip system, and that, while all 
employees had a sign-in password, only providers had the e-scrip access 
required to produce controlled substance scrips off the system. Tr. 
415-21. Non-controlled prescriptions could be electronically signed and 
forwarded to pharmacies for filling, but controlled substance e-scrips 
required a manual signature by an authorized prescriber.\18\ Tr. 424-
28.
---------------------------------------------------------------------------

    \18\ At another point during the proceedings, NM Pharmacy Board 
Executive Director Larry Loring confirmed that all controlled 
substance scrips must bear a hard signature to be effective. Tr. 
458-61.
---------------------------------------------------------------------------

    Dr. Edmonds, who (like PA Francis) characterized his working 
relationship with the Respondent as ``good,'' \19\ recalled that, in 
February 2011, the Respondent called off work for one or two days, 
explaining to Edmonds on the phone that she had an adverse reaction to 
hydrocodone. Tr. 361. When the Respondent told Edmonds that PA Francis 
had supplied her with the hydrocodone prescription, Dr. Edmonds sat 
both Francis and the Respondent down and unambiguously informed them, 
in a conversation that he characterized as ``stern . . . very direct,'' 
\20\ that ``prescribing potentially habit-forming medications to a 
colleague or staff member'' at McLeod Medical ``is not tolerated and 
should not persist.'' Tr. 361-62. Dr. Edmonds was precise and forceful 
in the manner in which he recalled the details of the meeting. In his 
words:
---------------------------------------------------------------------------

    \19\ Tr. 359.
    \20\ Tr. 392, 956.

[T]he discussion really went as follows. I walked into the room, and 
Dr. Marjenhoff and Raphaela Francis were both there. And I basically 
said that--I sat them both down, and I said that, you know, I 
understand that, Raphaela, you prescribed controlled substance to 
Dr. Marjenhoff, and I believe it was hydrocodone. And you had an 
adverse reaction to that. And I said, I want you to know that this 
is not good practice. I don't want this to continue. Don't let it 
happen again, and just don't do it. Those were my exact words. Just 
---------------------------------------------------------------------------
don't do it.

Tr. 955-56. According to Dr. Edmonds, although his tone at the outset 
of the meeting was ``one of collegiality,'' he stated that, ``at the 
end, it was very stern in the tone.'' Tr. 956.
    Edmonds clarified that this directive, which applied to all 
controlled substances, was ``mandatory'' and not optional, and it was 
disseminated throughout the McLeod Medical staff by the HR manager and 
was subsequently reduced to writing in the McLeod Medical employee 
handbook. Tr. 363-64, 393-99, 956-57. Dr. Edmonds

[[Page 29075]]

further recalled that, at the time, he encouraged the Respondent to 
seek out the consultation of a pain and spine physician. Tr. 362.
    Dr. Edmonds also testified that, about five months later, on July 
21, 2011, he was notified that a random urinalysis sample collected 
from the Respondent two days earlier registered positive for an opiate. 
Tr. 364-66, 400. Edmonds recalled that on the day of the urinalysis, 
when the preliminary, in-office screen-test results indicated the 
presence of opiates, the Respondent approached him and said she felt 
she was ``being singled out.'' Tr. 971. Several days later, after 
receiving the lab confirmation that the Respondent had opiates in her 
system, Dr. Edmonds sought her out for an explanation. Tr. 963-64, 971. 
It was at that point (and not before) that the Respondent told Edmonds 
that she was receiving pain medication from a Dr. Pamela Black, a pain 
treatment specialist. Tr. 365, 391-92, 963-64, 971. When, in response 
to Edmonds's request to see the prescription, the Respondent brought 
him a bottle of morphine with a prescription label dated July 25, 2011 
(six days after the urinalysis sample was collected),\21\ Dr. Edmonds 
did not push the matter, extending what he euphemistically 
characterized as ``professional courtesy.'' Tr. 363-67, 400-01. He 
extended this courtesy, even in light of the fact that the portion of 
the form completed by the Respondent at the time she provided the urine 
sample that could have reflected that she was taking medications did 
not. Tr. 958, 964, 966-70. Thus, Dr. Edmonds knew that the Respondent 
could have indicated on the form that she was on controlled substances 
at the time she provided the sample, and could have told him that she 
was seeing Dr. Black when the in-office screen test popped positive 
(instead of indicating that she was being singled out), but did not 
avail herself of either opportunity.
---------------------------------------------------------------------------

    \21\ Dr. Edmonds could not recall whether the bottle label 
reflected an original prescription or a refill. Tr. 366.
---------------------------------------------------------------------------

    Two months after the positive urinalysis result, Dr. Edmonds was 
informed by the McLeod HR manager that personnel at Walmart Pharmacy 
Edgewood had advised her that the Respondent had attempted to fill, and 
may have filled, multiple illegitimate narcotic medication 
prescriptions over PA Francis's name and DEA COR number. Tr. 368-69. 
After a meeting with PA Francis and the HR manager where the three 
consulted a PMP report,\22\ Edmonds set about attempting to contact 
officials at the local DEA office. A day or so later, Edmonds 
telephoned the Respondent at home. Tr. 369-70. In his testimony, Dr. 
Edmonds was clear that he asked the Respondent three questions: First, 
did she have a problem with drugs? Second, did she have an addiction 
problem? And, third, did she forge the prescriptions that Edmonds was 
inquiring about? Tr. 370, 959. According to Edmonds, the Respondent's 
answer to the first two inquiries was ``no,'' but, regarding the 
forgery question, the Respondent replied that she only did that (forged 
prescriptions) twice. Tr. 370, 959. Edmonds recalled that the 
Respondent's exact words were ``I only did that twice.'' Tr. 370, 408-
09, 959. Although, in her hearing testimony, the Respondent indicated 
that she replied ``twice'' when asked how many times Francis prescribed 
controlled substances to her, Dr. Edmonds was clear, persuasive, and 
credible in relating his detailed recollection that he had no reason to 
ask the Respondent about the number of times Francis prescribed 
controlled substances to her, and that he did not ask that question. 
Tr. 959. Indeed, in the face of the six to eight scrips that Francis 
presented to Edmonds at that time as forged,\23\ it would have made 
little sense for Edmonds to ask the Respondent such a question, and 
less sense for the Respondent (who claims that Francis was regularly 
and appropriately prescribing controlled substances to her) to answer 
``twice.'' Additionally, to the extent that the Respondent believed 
that Dr. Edmonds's meeting on employee-to-employee controlled substance 
prescribing yielded only optional guidance, the answer ``twice'' and 
even the question would have made little sense. In this regard, Dr. 
Edmonds's recollection of events is more plausible and will be credited 
in this recommended decision.
---------------------------------------------------------------------------

    \22\ Tr. 402.
    \23\ Tr. 369.
---------------------------------------------------------------------------

    Dr. Edmonds put the Respondent on administrative leave and placed 
two conditions on the Respondent's continued employment at McLeod 
Medical. First, she was to enroll in the New Mexico Monitored Treatment 
Program (MTP), a drug treatment monitoring program designed to 
evaluate, treat, and monitor physicians and healthcare providers.\24\ 
Second, the Respondent was required to ``mend the relationship that she 
had broken with [PA] Francis.'' Tr. 370, 409-11. According to Dr. 
Edmonds, he discussed these conditions both orally and in writing with 
the Respondent, and she agreed to both. Tr. 371-72. It took a few weeks 
for the Respondent to affiliate with MTP,\25\ but after she was in the 
program, MTP notified Edmonds that a treatment plan had been developed 
and that, at least in MTP's view, she could return to a work 
environment. Tr. 372-73. Shortly thereafter, however, Dr. Edmonds 
terminated her based on his determination she was not sufficiently 
committed to repairing her professional relationship with PA Francis. 
In Dr. Edmonds's words:
---------------------------------------------------------------------------

    \24\ Tr. 374-76, 388-90, 410.

    \25\ Tr. 378.

    I fired [the Respondent] because she created a hostile work 
environment and eroded the trust between herself and her 
---------------------------------------------------------------------------
subordinate, Physician's Assistant Raphaela Francis.

Tr. 962. According to Dr. Edmonds, the Respondent's sole effort 
directed at relationship repair was an email she sent to Francis, 
wherein the former explained to the latter that she was sorry she chose 
her as her provider. Tr. 373-77, 414. Apparently, the tenor of the 
Respondent's email was just not what Edmonds was looking for in the 
repair of a professional relationship torn atwain by one coworker 
forging another coworker's name on controlled substance prescriptions, 
and, on October 24, 2011, approximately six weeks after she was placed 
on administrative leave, the Respondent was let go. Tr. 378-79, 415.
    Dr. Edmonds is no longer associated with McLeod Medical. It is 
clear that he has no stake in the outcome of these proceedings, and his 
testimony presented as clear, certain, and unequivocal. In this case, 
the testimony presented by Dr. Edmonds, much of which was corroborated 
by other testimony in the record, was sufficiently objective, detailed, 
plausible, and internally consistent to be deemed fully credible in 
this recommended decision.
    NM Pharmacy Board Executive Director (Exec. Dir.) Larry Loring also 
testified on behalf of the Government at the hearing. Loring testified 
that, prior to his appointment as the executive director, he had served 
for twenty-two years as a NM Pharmacy Board inspector. Tr. 440-41. As 
executive director, his responsibilities at the NM Pharmacy Board 
include the supervision of the Board's administrative and inspector 
personnel, as well as the assignment of cases to the inspection staff. 
Tr. 430-31. Additionally, Exec. Dir. Loring testified that he has been 
in charge of the New Mexico Prescription Monitoring Program (PMP) since 
its inception in 2005 until last year, when he hired a

[[Page 29076]]

manager to administer the program. Tr. 431. Loring explained that the 
PMP is a computer database maintained by the NM Pharmacy Board that is 
the repository for information on all controlled substances dispensed 
in New Mexico. Tr. 432, 434. Information is inputted into the PMP 
exclusively by the pharmacies across the state. Tr. 433. The pharmacies 
bear a legal obligation to accurately report dispensing data to the 
PMP,\26\ and, at the time of these events, could do so at upload 
increments of up to seven days. Tr. 433-34, 444-45.
---------------------------------------------------------------------------

    \26\ Exec. Dir. Loring explained that a disclaimer placed at the 
bottom of each page of reports generated by the PMP alerts the 
reader that the accuracy of the data perforce depends on the 
accuracy of the input by the pharmacies, and is not independently 
confirmed by the NM Pharmacy Board. Tr. 435-36.
---------------------------------------------------------------------------

    Exec. Dir. Loring testified that he opened an investigation 
concerning the Respondent based on a phone call he received from PIC 
Alvis. Tr. 441, 450. When Alvis advised him that he believed he had 
identified a forged prescription made out on behalf of the Respondent, 
Loring ran a PMP report querying all controlled substance prescriptions 
issued by PA Francis where the Respondent is reflected as a patient for 
a two-year period commencing on October 12, 2010 (PMP/Marjenhoff 
Report),\27\ and he used this report as a framework to contact 
pharmacies in furtherance of his investigation. Tr. 441-43, 447-48; 
Gov't Ex. 6. Exec. Dir. Loring testified that he went to each pharmacy 
listed on the PMP/Marjenhoff Report and obtained documents related to 
the transactions listed therein by supplying the prescription 
transaction numbers from the Report.\28\ Tr. 443, 660; Gov't Ex. 8. 
According to Loring, he eventually turned over the documents he 
procured from the pharmacies to DEA DI Bencomo. Tr. 443, 661; Gov't Ex. 
8.
---------------------------------------------------------------------------

    \27\ Actually, the PMP/Marjenhoff Report introduced by the 
Government contains two reports generated from two distinct queries. 
The first query is a ``Prescriber Rx History Report'' wherein PA 
Francis's DEA COR number is queried and the prescriptions dispensed 
to the Respondent are culled out (Gov't Ex. 6, at 2-12), and the 
second is a ``Patient Rx History Report'' wherein the Respondent's 
name is queried for controlled substance medications dispensed on 
her behalf as the listed patient. Id. at 13-15.
    \28\ The Respondent's objection to the documents supplied to 
Exec. Dir. Loring by the pharmacies was sustained to the extent that 
notations on the documents that lacked an adequate foundation were 
excluded from consideration. Tr. 679-81.
---------------------------------------------------------------------------

    On the issue of the PMP/Marjenhoff Report, Exec. Dir. Loring did 
not know why there was no indication of a controlled substance 
prescription dispensed at May Pharmacy on August 30, 2011 (the day May 
Pharmacy partially dispensed the same medication the Respondent was 
seeking to procure from Walmart Pharmacy Edgewood on August 31, 
2011).\29\ Tr. 455-56, 465-66.
---------------------------------------------------------------------------

    \29\ However, it is worthy of note that the Prescriber Rx 
History Report (Gov't Ex. 6, at 2-12) of the PMP/Marjenhoff Report 
admitted into evidence only queried prescriptions issued by PA 
Francis, not those issued by Dr. Pamela Black, the pain specialist 
the Respondent indicated she was seeing for pain medication, the 
prescriber she mentioned to PA Francis during their February 14, 
2011 appointment, and the prescriber she asked PIC Alvis about when 
they spoke on the phone regarding her insurance-rejected 
prescription. See Tr. 183, 221-22, 366, 652-53, 810, 819, 836-40, 
924-28, 947-49, 964-66, 973.
---------------------------------------------------------------------------

    Exec. Dir. Loring presented as a thorough, impartial, methodical 
state regulator.\30\ He has no stake in the outcome of the proceedings, 
and his testimony was sufficiently objective, detailed, plausible, and 
internally consistent to be fully credited in this recommended 
decision.
---------------------------------------------------------------------------

    \30\ Notwithstanding the Government's curious assertion to the 
contrary (ALJ Ex. 59, at 11), Exec. Dir. Loring was never offered, 
qualified, or recognized as an expert in these proceedings. In fact, 
during the course of an extremely limited inquiry regarding whether 
particular scrip signatures were handwritten or machine generated, 
the Respondent's counsel decisively declined the opportunity to do 
so during the hearing, and made it clear that any mention of this 
witness as an expert ``was just in jest.'' Tr. 706-07, 710; see also 
id. at 459, 703. There was simply nothing unclear about this aspect 
of the proceedings during the hearing or thereafter.
---------------------------------------------------------------------------

    The Government also presented the testimony of its lead 
investigator in this matter, Diversion Investigator (DI) Randall 
Bencomo, a fifteen-year DEA investigator and retired Air Force veteran. 
Tr. 474. DI Bencomo testified that his contact with this case began 
with a referral from his supervisor to investigate the Respondent's COR 
application due to an affirmative response on an application liability 
question. Tr. 475-77, 632. During the course of his investigation, 
Bencomo learned that the Respondent had a history of disciplinary 
action with the Board of Medical Examiners of the State of Iowa (Iowa 
Medical Board). Tr. 475, 477-78. In August of 2011, DI Bencomo 
telephonically contacted the Iowa Medical Board and was referred to its 
Web site (medicalboard.iowa.gov) where he located, printed out, and 
supplied this tribunal with a document styled ``Settlement Agreement 
and Final Order'' (Iowa Board Order/Settlement Agreement or IBO/SA), 
which related to an administrative action regarding the Respondent's 
Iowa medical license, and a corresponding document entitled ``Statement 
of Charges'' (Iowa Board Charging Document or IBCD), which provides the 
charges resolved in the IBO/SA. Gov't Ex. 9; Tr. 484, 552-59, 619-22.
    DI Bencomo also testified that, in the first full week of September 
2011, during his investigation of the Respondent's application, he was 
contacted by and met with PA Francis. Tr. 478. According to DI Bencomo, 
Francis indicated that she wished to lodge a complaint against the 
Respondent for forging her name on controlled substance prescriptions. 
Tr. 478-80. When Francis and Bencomo met, the former brought the PMP 
report she generated with her and recounted her experience with the 
Respondent and her interaction with PIC Alvis. Tr. 478-80. Bencomo 
recalled that PA Francis explained the machinations Alvis was forced to 
invent to finally contact her at McLeod Medical. Tr. 480-81.
    According to Bencomo, utilizing very much the same approach as 
Exec. Dir. Loring, he contacted the pharmacies set forth in the PMP/
Marjenhoff Report and sought documentation that corresponded to the 
dispensed prescriptions that Francis described as forged. Tr. 481. 
Bencomo testified that, as he was interacting with the pharmacies 
listed on the PMP, he came to learn that Exec. Dir. Loring from the NM 
Pharmacy Board had been pursuing the same documents from the same 
establishments, and had been provided with original documents by the 
pharmacies. Tr. 481-82. Bencomo stated that the pharmacies provided him 
with copies because the originals had already been provided to Exec. 
Dir. Loring. Tr. 481, 500, 507. DI Bencomo testified that he 
subsequently contacted Loring and that the latter transferred the 
original documents he had procured from the pharmacies into Bencomo's 
custody. Tr. 482-84, 501, 627-29.
    DI Bencomo testified that, about a week after he spoke with PA 
Francis, he also interviewed PIC Alvis at the Walmart Pharmacy 
Edgewood. Tr. 484-85. Bencomo recollected that details supplied by 
Alvis were consistent with the account provided by to him by PA 
Francis. Tr. 486.
    Among the documents presented by Bencomo was a pair of identical 
controlled substance scrips that he obtained from two different 
pharmacies and that reflect that both pharmacies filled the single 
prescription. Tr. 499; Gov't Ex. 3. Also received into the record were 
two exhibits containing copies of the documents collected by Exec. Dir. 
Loring and DI Bencomo from the pharmacies listed in the PMP/Marjenhoff 
Report.\31\ Gov't Ex. 4; Gov't Ex. 8.
---------------------------------------------------------------------------

    \31\ Although DI Bencomo testified that Government Exhibit 4 is 
an amalgam of copies of documents he received from Exec. Dir. Loring 
and directly from the pharmacies listed in the PMP/Marjenhoff Report 
(Tr. 531), as his testimony progressed, it became apparent as he was 
describing another noticed exhibit that he was not altogether 
confident as to which documents he collected from the pharmacies and 
which he received from Loring. See, e.g., Tr. 537-47. That said, 
Bencomo was consistent in testifying that every document in the 
exhibit came from one source or the other. To clarify the record, DI 
Bencomo brought the original documents provided by Exec. Dir. Loring 
to make them available for examination by the Respondent's counsel 
and this tribunal. Tr. 614, 627-31, 661-63; Gov't Ex. 8.

---------------------------------------------------------------------------

[[Page 29077]]

    DI Bencomo's testimony was certainly not without its warts. There 
were points where his testimony lacked clarity in describing the manner 
in which he procured and maintained important documentation. He 
initially testified that he obtained documentation from the Iowa Board 
by implementing a download from its Web site, but was unable to testify 
about who he spoke with at the Iowa Board, what they said, when the 
conversation took place, or the Web site address he was referred to. 
Tr. 553-54, 556-57. Similarly, DI Bencomo testified that he collected 
documentation from several pharmacies regarding the Respondent's New 
Mexico prescriptions, but he was initially unable to tease out which 
documents were obtained by him and which were provided by Exec. Dir. 
Loring. Tr. 541-42. DI Bencomo was ultimately able to resolve numerous 
evidentiary issues, but only after being granted leave in the midst of 
his testimony to do so. Still, DI Bencomo, whose testimony was largely 
corroborated by other testimony and evidence, presented as an 
objective, experienced regulator who clearly has no stake in the 
outcome of the proceedings, and, taken as a whole, his testimony was 
sufficiently detailed, plausible, and internally consistent enough to 
merit full credibility here.

The Government's Documentary Evidence

    The Government submitted documentary evidence in support of 
purported misconduct that took place in Iowa (Iowa Misconduct) and New 
Mexico (New Mexico Misconduct).

Iowa Misconduct Documents

    The record contains an affidavit executed by the DEA's Chief of the 
Registration and Program Support Section, Richard A. Boyd, regarding 
the history of the Respondent's registration with the DEA (DEA Records 
Affidavit). Gov't Ex. 2. The DEA Records Affidavit states that the 
Respondent applied \32\ for a DEA COR on January 14, 2011, at the 
address of 1108 U.S. Route 66 W., P.O. Box 1520, Moriarty, New Mexico 
87035, and that, on January 17, 2011, the DEA assigned the Respondent 
with a COR control number (W11002696C) while her application was 
pending. Id. at 1. The DEA Records Affidavit further provides that the 
Respondent provided an affirmative answer to the third liability 
question contained in the COR application, to wit: whether she had 
``ever surrendered (for cause) or had a state professional license or 
controlled substance registration, revoked, suspended, denied, 
restricted, or placed on probation, or is any such action pending?'' 
\33\ Id.
---------------------------------------------------------------------------

    \32\ Gov't Ex. 1.
    \33\ DI Bencomo testified that this affirmative answer and 
explanation was the likely genesis of the referral of the 
Respondent's application to a DI for in-depth examination. Tr. 476-
77.
---------------------------------------------------------------------------

    The DEA Records Affidavit also contains language provided by the 
Respondent in her COR application explaining her liability-question 
response regarding any prior adverse state license history.\34\ Id. at 
1-2. According to the language supplied by the Respondent \35\ 
explaining the facts surrounding her Iowa license surrender:
---------------------------------------------------------------------------

    \34\ During her testimony at the hearing, the Respondent 
attested to the veracity of this explanation and acknowledged that 
this information was supplied to DEA by her in connection with her 
application. Tr. 763-64, 937-39.
    \35\ DI Bencomo testified that this language was taken from the 
Respondent's COR application, which is the position that the 
Respondent's counsel took at the hearing, and is consistent with the 
Respondent's testimony. Tr. 636-37, 639, 643-46, 937-39.

    Incident Date: 03/15/2000, Incident Location: Corydon, IA, 
Incident Nature: Patient was on long-term opioids for 
Antiphospholipid antibody syndrome. Had consults from hematology and 
pain clinic, who suggested above meds. After 1 yr on meds, unknown 
person sent complaint to Iowa Board of Medicine that patient was 
``addicted to the pain medicine[.''] IA Board did not inform DEA, as 
no investigation was needed. Incident Result: I voluntarily took CME 
course on prescribing controlled substances from Vanderbilt 
---------------------------------------------------------------------------
University.

Id.
    The Government also introduced a copy of the Iowa Board Order/
Settlement Agreement entered into by the Respondent and the Iowa Board 
in 2005, as well as the corresponding IBCD, which set forth the 
charges. Gov't Ex. 9. The IBO/SA cites the Respondent for 
``inappropriately and repeatedly prescribing controlled drugs to 
numerous patients in violation of the laws and rules governing the 
practice of medicine.'' Id. at 2 (emphasis added). The IBO/SA reflects 
that the Respondent became licensed in Iowa on April 5, 2000, which 
would be the month following the incident date she provided in her 
application explanation. Compare Gov't Ex. 9, at 1 ] 2 (memorializing 
that the Iowa Board and the Respondent agree that her state license was 
issued on April 5, 2000), with Gov't Ex. 2, at 1-2 ] 3 (noting that, in 
her COR application, the Respondent listed the Iowa Board license 
incident as March 15, 2000). Thus, even a cursory examination of the 
plain language of the two documents supports either two Iowa Board 
actions, only one of which is explained in the Respondent's COR 
application, or one Board action regarding which the Respondent 
supplied a puzzling date and a markedly incomplete/disingenuous 
explanation. Confusingly, in her brief, the Respondent clarified that 
Iowa administrative proceedings were initiated in March 2000 (which, if 
credited, would mean that proceedings to discipline her license 
commenced a month prior to the time she was even licensed in Iowa). ALJ 
Ex. 60, at 2. In their briefs, both parties are in apparent agreement 
that there was only one Iowa Board disciplinary action.\36\ ALJ Ex. 59, 
at 29; ALJ Ex. 60, at 12.
---------------------------------------------------------------------------

    \36\ Inasmuch as it is the Government who is the proponent of 
this evidence and the party that seeks to rely on the Iowa 
Misconduct to sustain the COR denial it seeks, it was incumbent upon 
the Government to provide a logical explanation.
---------------------------------------------------------------------------

    The Iowa Board Charging Document \37\ alleges that the Respondent 
violated Iowa's pain management rule, Iowa Admin. Code r. 653-13.2, 
which, inter alia, serves ``to minimize the potential for substance 
abuse and drug diversion.'' Iowa Admin. Code r. 653-13.2(1) (2013). At 
the DEA hearing, the Respondent adopted the IBO/SA as an accurate 
account of the events that occurred surrounding the incident, and 
official notice \38\ was taken of the actions of the Iowa Board 
depicted in the IBO/SA and IBCD.\39\ Tr. 625, 764-65.
---------------------------------------------------------------------------

    \37\ Gov't Ex. 9, at 10.
    \38\ See 5 U.S.C. 556(e).
    \39\ At the hearing of this matter, the Respondent was afforded 
until May 28, 2014 (over 30 days) to challenge the factual basis of 
this official notice and declined to do so.
---------------------------------------------------------------------------

New Mexico Misconduct Documents

    According to the testimony of Exec. Dir. Loring, the investigation 
he conducted on behalf of the NM Pharmacy Board (and ultimately the 
Government's case here) is structured from the PMP/Marjenhoff Report he 
generated from his query on the New Mexico PMP. Tr. 441-43, 447-48; 
Gov't Ex. 6. The PMP/Marjenhoff Report reflects twelve (12) dispensing 
events on scrips purportedly authorized by PA Francis that resulted in 
controlled substances being issued to the Respondent, or members of her 
family on her behalf, during a two-year period

[[Page 29078]]

commencing on October 12, 2010. Gov't Ex. 6. As discussed, supra, 
documents corresponding to the prescription transaction numbers on the 
PMP/Marjenhoff Report were independently procured from the relevant 
pharmacies by Exec. Dir. Loring and DI Bencomo. Gov't Ex. 4; Gov't Ex. 
8. Exec. Dir. Loring turned over nine original prescription documents 
to DI Bencomo.\40\ Tr. 687; Gov't Ex. 8. DI Bencomo's prescription 
documents, which appear to be a combination of Loring's documents 
supplemented with documents he procured independently of Loring,\41\ 
related to twelve transactions. Gov't Ex. 3; Gov't Ex. 4. Each of the 
twelve dispensing events referenced in the PMP/Marjenhoff Report and 
its significance is discussed below.
---------------------------------------------------------------------------

    \40\ Although Exec. Dir. Loring testified that he visited all 
pharmacies listed in the PMP/Marjenhoff Report and did not recall 
any of the pharmacies declining or being unable to comply with his 
documentary requests, he was unable to explain why he only turned 
over nine sets of prescription documents to DI Bencomo. Tr. 686-90.
    \41\ DI Bencomo originally testified that his documents were 
copies collected from the pharmacies. Tr. 501-02. However, the 
notations on some of these documents are consistent with the 
notations made by Exec. Dir. Loring recording the location and date 
the scrips were picked up by him from the pharmacies. Tr. 664. In 
light of the fact that the Government presented other documents that 
were an amalgamation of the documents collected by DI Bencomo and 
Exec. Dir. Loring (Tr. 531), it is safe to assume that these 
prescriptions presented by DI Bencomo also include copies of 
documents obtained by Exec. Dir. Loring.
---------------------------------------------------------------------------

Dispensing Event 1: February 14, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated February 14, 2011 (same date) for Hydrocodone 
Bitartrate and Acetaminophen 10-500 mg \42\ and issued on behalf of the 
Respondent, was dispensed at the Walmart Pharmacy Edgewood.\43\ Gov't 
Ex. 6, at 3, 14. A copy of a scrip and corresponding dispensing label 
procured from the Walmart Pharmacy Edgewood by DI Bencomo \44\ shares 
the same transaction number (#4411974), ``issue'' date, medication/
dosage description \45\ issued under PA Francis's COR number and 
purported signature, and patient (the Respondent) as this entry in the 
PMP/Marjenhoff Report. Gov't Ex. 3, at 1.
---------------------------------------------------------------------------

    \42\ Hydrocodone Bitartrate and Acetaminophen 10-500 mg is a 
Schedule III controlled substance. Stip. 5; 21 CFR 
1308.13(e)(1)(iv).
    \43\ According to a key included in the PMP/Marjenhoff Report, 
the pharmacy identification number associated with this dispensing 
event corresponds to the number assigned to the Walmart Pharmacy 
Edgewood. Gov't Ex. 6, at 11, 15.
    \44\ These documents were not among the documents procured by 
Exec. Dir. Loring. Tr. 689-90.
    \45\ The scrip reflects a prescription for Lortab 10-500 mg 
(Gov't Ex. 3, at 1), which is a brand name for Hydrocodone 
Bitartrate and Acetaminophen 10-500 mg. Nursing97 Drug Handbook 351 
(1997). The dispensing label reflects a prescription for Hydro/Apap 
10-500 mg. Gov't Ex. 3, at 1. ``Apap'' is an abbreviation for 
Acetaminophen. Nursing97 Drug Handbook 315.
---------------------------------------------------------------------------

    On the present record, it is undisputed that the Respondent validly 
received this scrip from PA Francis,\46\ that it was faxed to the 
Walmart Pharmacy Edgewood where it was validly dispensed. According to 
the PMP/Marjenhoff Report, a 30-day supply of medication was dispensed. 
Gov't Ex. 6, at 3, 14.
---------------------------------------------------------------------------

    \46\ Tr. 688-89.
---------------------------------------------------------------------------

Dispensing Event 2: February 16, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated February 14, 2011 for Hydrocodone Bitartrate and 
Acetaminophen 10-500 mg and issued on behalf of the Respondent, was 
dispensed at the Walgreens Pharmacy \47\ in Edgewood, New Mexico 
(Walgreens Pharmacy). Gov't Ex. 6, at 3, 14. A copy of a scrip and 
corresponding dispensing label that was procured from the Walgreens 
Pharmacy by Exec. Dir. Loring shares the same transaction number 
(#369902), ``issue'' date, medication/dosage description under PA 
Francis's COR number and purported signature, and patient (the 
Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 
1; Gov't Ex. 3, at 2.
---------------------------------------------------------------------------

    \47\ According to a key included in the PMP/Marjenhoff Report, 
the pharmacy identification number associated with this dispensing 
event corresponds to the number assigned to the Walgreens Pharmacy. 
Gov't Ex. 6, at 10, 15.
---------------------------------------------------------------------------

    A comparison of the copy of the scrip presented during the course 
of this dispensing event to the scrip presented to the Walmart Pharmacy 
Edgewood in Dispensing Event 1 (two days before Dispensing Event 2) 
shows that the same scrip was presented in both transactions. Compare 
Gov't Ex. 8, at 1, and Gov't Ex. 3, at 2, with Gov't Ex. 3, at 1. PA 
Francis credibly testified that she prepared and personally handed the 
scrip to the Respondent. Tr. 188. But there was no indication that the 
scrip was authorized for multiple pharmacy presentations to procure 
multiple doses of the same medication. On its face, the scrip does not 
even purport to authorize refills. Gov't Ex. 3. PA Francis also 
credibly testified that this was the one and only controlled substance 
prescription that she issued on behalf of the Respondent. Tr. 185, 202.
    This dispensing event resulted in the Respondent receiving a 30-day 
supply of the medication, notwithstanding the fact that only 2 days 
earlier she had received a 30-day supply of the same medication 
(Dispensing Event 1). Gov't Ex. 6, at 3, 4. Thus, by presenting the 
same scrip twice, over the course of 2 days, the Respondent acquired an 
aggregate amount of medication that should have lasted 60 days.

Dispensing Event 3: March 1, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated February 28, 2011 for Hydrocodone Bitartrate and 
Acetaminophen 10-500 mg and issued on behalf of the Respondent, was 
dispensed at May Pharmacy \48\ in Moriarty, New Mexico (May Pharmacy). 
Gov't Ex. 6, at 3, 14. A copy of a scrip and corresponding dispensing 
label obtained from May Pharmacy by Exec. Dir. Loring shares the same 
transaction number (#9142353), ``issue'' date, medication/dosage 
description under PA Francis's COR number and purported signature, and 
patient (the Respondent) as the PMP/Marjenhoff report. Gov't Ex. 8, at 
3; Gov't Ex. 4, at 1.
---------------------------------------------------------------------------

    \48\ According to a key included in the PMP/Marjenhoff Report, 
the pharmacy identification number associated with this dispensing 
event corresponds to the number assigned to May Pharmacy. Gov't Ex. 
6, at 7, 15.
---------------------------------------------------------------------------

    At the hearing, PA Francis testified that she neither signed this 
scrip nor authorized this prescription. Tr. 205-06, 261.
    This dispensing event resulted in the Respondent receiving a 23-day 
supply of the medication, notwithstanding the fact that only 15 days 
earlier she had received a 30-day supply of the same medication 
(Dispensing Event 1), and 13 days earlier she had received yet another 
30-day provision of the same medication (Dispensing Event 2). Gov't Ex. 
6, at 3, 14. Thus, even by the terms of the scrips (one of which was 
presented twice and the other forged), over the course of the 15 days 
that elapsed from Dispensing Event 1, the Respondent had received an 
aggregate amount of medication that should have lasted 60 days (45 
extra dosage days) before this prescription was filled.

Dispensing Event 4: March 11, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated March 11, 2011 (same date) for Hydrocodone 
Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the 
Respondent, was dispensed at the Walgreens Pharmacy. Gov't Ex. 6, at 3, 
14. DI Bencomo \49\ procured a copy of a scrip \50\ from the

[[Page 29079]]

Walgreens Pharmacy that shares the same ``issue'' date, medication/
dosage description under PA Francis's COR number and purported 
signature, and patient (the Respondent) as this entry in the PMP/
Marjenhoff Report. Gov't Ex. 4, at 2. This exhibit does not bear a 
corresponding dispensing label. Id. Upon examination, this scrip was 
also used to effect Dispensing Events 5 and 6. Compare Gov't Ex. 4 at 
2, 2a, with Gov't Ex. 8, at 5, 7, and Gov't Ex. 4, at 4, 4a, 5.
---------------------------------------------------------------------------

    \49\ These documents were not among the documents procured by 
Exec. Dir. Loring. Tr. 689-90.
    \50\ As initially supplied by the Government, this document was 
illegible and excluded. Prior to the commencement of the hearing, 
the Government supplied a copy that was sufficiently enhanced 
through magnification that its content could be somewhat better 
deciphered and considered.
---------------------------------------------------------------------------

    At the hearing, PA Francis testified that she neither signed this 
scrip nor authorized this prescription. Tr. 205-06, 261.
    This dispensing event resulted in the Respondent receiving a 15-day 
supply of the medication, notwithstanding the fact that only 25 days 
earlier she had received a 30-day supply of the same medication 
(Dispensing Event 1), 23 days earlier she had received yet another 30-
day provision of the same medication (Dispensing Event 2), and 10 days 
earlier she had received a 23-day supply of the same medication 
(Dispensing Event 3). Gov't Ex. 6, at 3, 14. Thus, even by the terms of 
the scrips (some of which were presented on multiple occasions and some 
of which were forged), over the course of the 25 days that elapsed from 
Dispensing Event 1, the Respondent had received an aggregate amount of 
medication that should have lasted 83 days (58 extra dosage days) 
before this prescription was filled.

Dispensing Event 5: March 15, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated March 15, 2011 for Hydrocodone Bitartrate and 
Acetaminophen 10-500 mg and issued on behalf of the Respondent, was 
dispensed at the Walmart Pharmacy Edgewood. Gov't Ex. 6, at 3, 14. A 
physical copy of a document entitled ``Telephonic Prescription,'' 
completed by hand, with an attached corresponding dispensing label, was 
procured by Exec. Dir. Loring from the Walmart Pharmacy Edgewood. Gov't 
Ex. 8, at 5; Gov't Ex. 4, at 3. Loring testified that, based on his 
over two-dozen years of experience, a pharmacist must (and it must be a 
pharmacist, not a technician) complete this type of form when a 
controlled substance prescription is telephoned into the pharmacy. Tr. 
672-74, 704-05. Although the prescription must be taken by a pharmacist 
and reduced to writing at the pharmacy end, the prescriber can have the 
prescription phoned in by an authorized administrative person. Tr. 704-
05. In reviewing the documents associated with this transaction, Exec. 
Dir. Loring determined that the paperwork reflects that a controlled 
substance prescription was telephoned into Walmart Pharmacy Edgewood on 
March 15, 2011, that, the following day, it was followed up by a fax 
version of the scrip, and that the dispensing sticker indicates that 
the medication was processed for dispensing.\51\ Tr. 674-77.
---------------------------------------------------------------------------

    \51\ Exec. Dir. Loring testified that the presence of a 
dispensing sticker indicates that the medication was processed for 
dispensing, but not necessarily that it was dispensed. Tr. 676-77.
---------------------------------------------------------------------------

    The record also contains a hard-copy of a scrip, dated March 11, 
2011, with a signature placed above PA Francis's name as the 
prescriber. Gov't Ex. 8, at 5; Gov't Ex. 4, at 4, 4a. The dispensing 
label affixed to the hard-copy scrip shares the same transaction number 
(#4412395), medication/dosage \52\ description issued under PA 
Francis's COR number and purported signature, and patient (the 
Respondent) as the entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 
5; Gov't Ex. 4, at 4, 4a.
---------------------------------------------------------------------------

    \52\ The telephonic and hard-copy scrip prescribe ``Lortab,'' a 
brand name for Hydrocodone Bitartrate and Acetaminophen. Nursing97 
Drug Handbook 351 (1997).
---------------------------------------------------------------------------

    At the hearing, PA Francis testified that she neither signed this 
scrip nor authorized this prescription. Tr. 205-06, 261. Further, upon 
examination, it appears that the March 11 hard-copy scrip, utilized by 
facsimile to effect this dispensing event, is the same scrip utilized 
in Dispensing Events 4 (via facsimile) and 6 (via presentation of the 
original document).\53\ A comparison of the copy of this scrip 
presented to the Walmart Pharmacy Edgewood to the copy of the scrip 
presented to the Walgreens Pharmacy (in connection to Dispensing Event 
4) shows that the same document was presented to both pharmacies, and 
that the dispensing events were separated by four days. Compare Gov't 
Ex. 8, at 5, and Gov't Ex. 4, at 4, with Gov't Ex. 4, at 2. 
Furthermore, this same scrip was presented to, and filled at, another 
Walmart Pharmacy in Albuquerque six days later (Dispensing Event 6). 
Compare Gov't Ex. 8, at 5, and Gov't Ex. 4, at 4, 4a, with Gov't Ex. 8, 
at 7, and Gov't Ex. 4, at 5.
---------------------------------------------------------------------------

    \53\ Upon careful examination or the original documents during 
the hearing, Exec. Dir. Loring opined that the scrip utilized for 
Dispensing Event 5 was the same scrip utilized for Dispensing Event 
6. Tr. 681-85.
---------------------------------------------------------------------------

    This dispensing event resulted in the Respondent receiving a 15-day 
supply of the medication, notwithstanding the fact that only 29 days 
earlier she had received a 30-day supply of the same medication 
(Dispensing Event 1), 27 days earlier she had received another 30-day 
provision of the same medication (Dispensing Event 2), 14 days earlier 
she had received a 23-day supply of the same medication (Dispensing 
Event 3), and 4 days earlier she had received a 15-day supply of the 
same medication (Dispensing Event 4). Gov't Ex. 6, at 3, 14. As of the 
date of this dispensing event, although only 29 days had elapsed since 
the first scrip was filled (Dispensing Event 1), the Respondent had 
accumulated an aggregate amount of medication sufficient to last 98 
days (69 extra dosage days) before this prescription was filled.

Dispensing Event 6: March 21, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated March 11, 2011 for Hydrocodone Bitartrate and 
Acetaminophen 10-500 mg and issued on behalf of the Respondent, was 
dispensed at the Walmart Pharmacy \54\ in Albuquerque, New Mexico 
(Walmart Pharmacy Albuquerque). Gov't Ex. 6, at 3, 14. The copies of 
the scrip and corresponding dispensing label procured by Exec. Dir. 
Loring from the Walmart Pharmacy Albuquerque share the same transaction 
number (#4407701), ``issue'' date, medication/dosage description under 
PA Francis's COR number and purported signature, and patient (the 
Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 
7-8; Gov't Ex. 4, at 5-6. The scrip copy received into the record is 
not obscured by the security features that indicate photocopy or 
facsimile transmission. Gov't Ex. 8, at 7-8; Gov't Ex. 4, at 5-6.
---------------------------------------------------------------------------

    \54\ According to a key included in the PMP/Marjenhoff Report, 
the pharmacy identification number associated with this dispensing 
event corresponds to the number assigned to the Walmart Pharmacy 
Albuquerque. Gov't Ex. 6, at 12, 15.
---------------------------------------------------------------------------

    At the hearing, PA Francis testified that she neither signed this 
scrip nor authorized this prescription. Tr. 205-06, 261. In the opinion 
of Exec. Dir. Loring, the signature on the scrip was manually signed 
(i.e., not electronically generated). Tr. 706.
    Upon examination, it appears that the scrip utilized to effect this 
dispensing event is the same scrip utilized via facsimile to consummate 
Dispensing Events 4 and 5. Compare Gov't Ex. 8, at 7-8, and Gov't Ex. 
4, at 5-6, with Gov't Ex. 8, at 5, and Gov't Ex. 4, at 2, 2a, 4, 4a. 
Thus, this scrip, which bears the Respondent's name as the patient, was 
presented three times to three separate pharmacies to procure the 
controlled substances described therein.

[[Page 29080]]

    This dispensing event resulted in the Respondent receiving a 15-day 
supply of the medication, notwithstanding the fact that only 20 days 
earlier she had received a 23-day supply of the same medication 
(Dispensing Event 3), 10 days earlier she had received a 15-day 
provision of the same medication (Dispensing Event 4), and 6 days 
earlier she had received a 15-day supply of the same medication 
(Dispensing Event 5). Gov't Ex. 6, at 3, 14. Thus, even by the terms of 
the scrips (some of which were presented on multiple occasions and most 
of which were forged), over the course of the 35 days that elapsed from 
the date of Dispensing Event 1 to this dispensing event, the Respondent 
had received an aggregate number of medication to last 113 days (78 
extra dosage days) before this prescription was filled.

Dispensing Event 7: March 31, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated March 31, 2011 (same date) for Hydrocodone 
Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the 
Respondent, was dispensed at May Pharmacy. Gov't Ex. 6, at 3, 14. 
Copies of a scrip \55\ procured from May Pharmacy by Exec. Dir. Loring 
and its corresponding dispensing label share the same transaction 
number (#9145722), ``issue'' date, medication/dosage description under 
PA Francis's COR number and purported signature, and patient (the 
Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 
9-10; Gov't Ex. 4, at 7-8.
---------------------------------------------------------------------------

    \55\ As initially supplied by the Government, this document was 
illegible and excluded. Prior to the commencement of the hearing, 
the Government supplied a copy that was sufficiently enhanced 
through magnification that its content could be deciphered and 
considered.
---------------------------------------------------------------------------

    At the hearing, PA Francis testified that she neither signed this 
scrip nor authorized this prescription. Tr. 205-06, 261.
    This dispensing event resulted in the Respondent receiving a 30-day 
supply of the medication, notwithstanding the fact that 10 days earlier 
she had received a 15-day supply of the same medication (Dispensing 
Event 6). Gov't Ex. 6, at 3, 14. Thus, even by the terms of the scrips 
(some of which were presented on multiple occasions and some of which 
were forged), over the course of the 45 days that elapsed from the date 
of Dispensing Event 1 to this dispensing event, the Respondent had 
received an aggregate number of medication to last 128 days (83 extra 
dosage days).

Dispensing Event 8: April 6, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated April 6, 2011 (same date) for Hydrocodone 
Bitartrate and Acetaminophen 10-500 mg and issued on behalf of the 
Respondent, was dispensed at the Walmart Pharmacy Albuquerque. Gov't 
Ex. 6, at 3, 14. A copy of a scrip obtained by Exec. Dir. Loring from 
the Walmart Pharmacy Albuquerque and its corresponding dispensing label 
shares the same transaction number (#4407973), ``issue'' date, 
medication/dosage description under PA Francis's COR number and 
purported signature, and patient (the Respondent) as this entry in the 
PMP/Marjenhoff Report. Gov't Ex. 8, at 11-12; Gov't Ex. 4, at 9.
    At the hearing, PA Francis testified that she neither signed this 
scrip nor authorized this prescription. Tr. 205-06, 261.
    This dispensing event resulted in the Respondent receiving a 15-day 
supply of the medication, notwithstanding the fact that 6 days earlier 
she had received a 30-day supply of the same medication (Dispensing 
Event 7). Gov't Ex. 6, at 3, 14. Thus, even by the terms of the scrips 
(some of which were presented on multiple occasions and most of which 
were forged), over the course of the 51 days that elapsed from 
Dispensing Event 1, the Respondent had received an aggregate amount of 
medication that should have lasted 158 days (107 extra dosage days) 
before this prescription was filled.

Dispensing Event 9: July 9, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated July 8, 2011 for Hydrocodone Bitartrate and 
Acetaminophen 10-500 mg and issued on behalf of the Respondent, was 
dispensed at the Walmart Pharmacy Edgewood. Gov't Ex. 6, at 2, 13. A 
copy of a scrip, which was procured from the Walmart Pharmacy Edgewood 
by Exec. Dir. Loring, and corresponding dispensing label share the same 
transaction number (#4413861), ``issue'' date, medication \56\/dosage 
description issued under PA Francis's COR number and purported 
signature, and patient (the Respondent) as this entry in the PMP/
Marjenhoff Report. Gov't Ex. 8, at 13; Gov't Ex. 4, at 10.
---------------------------------------------------------------------------

    \56\ Lortab, which is reflected on the scrip, is a brand name 
for Hydrocodone Bitartrate and Acetaminophen 10-500 mg. Nursing97 
Drug Handbook 351 (1997).
---------------------------------------------------------------------------

    At the hearing, PA Francis testified that she neither signed this 
scrip nor authorized this prescription. Tr. 205-06, 261.
    This dispensing event resulted in the Respondent receiving a 30-day 
supply of the medication. Gov't Ex. 6, at 2, 13. Thus, even by the 
terms of the scrips (some of which were presented on multiple occasions 
and most of which were forged), over the course of the 145 days that 
elapsed from Dispensing Event 1, the Respondent had received an 
aggregate amount of medication that should have lasted 173 days (28 
extra dosage days) before this prescription was filled.

Dispensing Event 10: August 4, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated August 4, 2011 (same date) for Hydrocodone 
Bitartrate and Acetaminophen 10-325 mg and issued on behalf of the 
Respondent, was dispensed at May Pharmacy. Gov't Ex. 6, at 2, 13. A 
copy of a scrip and corresponding dispensing label acquired by Exec. 
Dir. Loring from May Pharmacy shares the same transaction number 
(#9157693), ``issue'' date, medication \57\/dosage description issued 
under PA Francis's COR number and purported signature, and patient (the 
Respondent) as this entry in the PMP/Marjenhoff Report. Gov't Ex. 8, at 
15; Gov't Ex. 4, at 11.
---------------------------------------------------------------------------

    \57\ The scrip describes the medication as hydrocodone-
acetaminophen. Gov't Ex. 8, at 15.
---------------------------------------------------------------------------

    At the hearing, PA Francis testified that she neither signed this 
scrip nor authorized this prescription. Tr. 205-06, 261.
    This dispensing event resulted in the Respondent receiving a 23-day 
supply of the medication, notwithstanding the fact that 26 days earlier 
she had received a 30-day supply of the same medication (Dispensing 
Event 9). Gov't Ex. 6, at 2, 13. Thus, even by the terms of the scrips 
(some of which were presented on multiple occasions and most of which 
were forged), over the course of the 171 days that elapsed from 
Dispensing Event 1, the Respondent had received an aggregate amount of 
medication that should have lasted 203 days (32 extra dosage days) 
before this prescription was filled.

Dispensing Event 11: August 9, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated August 9, 2011 (same date) for Hydrocodone/Apap 10-
325 mg and issued on behalf of the Respondent, was dispensed at the 
Walgreens Pharmacy. Gov't Ex. 6, at 2, 13. A copy of a scrip DI Bencomo 
\58\ procured from Walgreens Pharmacy shares the same ``issue'' date,

[[Page 29081]]

medication/dosage description under PA Francis's COR number and 
purported signature, and patient (the Respondent). Gov't Ex. 4, at 12. 
No dispensing label is attached to this document. Id.
---------------------------------------------------------------------------

    \58\ These documents were not among the documents procured by 
Exec. Dir. Loring. Tr. 687.
---------------------------------------------------------------------------

    At the hearing, PA Francis testified that she neither signed this 
scrip nor authorized this prescription. Tr. 205-06, 261.
    This dispensing event resulted in the Respondent receiving a 22-day 
supply of the medication, notwithstanding the fact that 5 days earlier 
she had received a 23-day supply of the same medication (Dispensing 
Event 10). Gov't Ex. 6, at 2. Thus, even by the terms of the scrips 
(some of which were presented on multiple occasions and most of which 
were forged), over the course of the 176 days that elapsed from 
Dispensing Event 1, the Respondent had received an aggregate amount of 
medication that should have lasted 226 days (50 extra dosage days) 
before this prescription was filled.

Dispensing Event 12: September 10, 2011

    The PMP/Marjenhoff Report reflects that, on this date, a 
prescription, dated September 10, 2011 (same date) for Hydrocodone 
Bitartrate and Acetaminophen 10-325 mg and issued on behalf of the 
Respondent, was dispensed at CVS Pharmacy \59\ in Albuquerque, New 
Mexico (CVS Pharmacy). Gov't Ex. 6, at 2, 13. A copy of a scrip 
procured by Exec. Dir. Loring from CVS Pharmacy reflects that the same 
prescription was purportedly issued under PA Francis's COR number and 
purported signature on September 8, 2011 (2 days prior to the ``issue'' 
date reflected in the PMP/Marjenhoff Report).\60\ Gov't Ex. 8, at 17-
18; Gov't Ex. 4, at 13-14. A corresponding dispensing label attached to 
the scrip, bearing the same transaction number as the entry in the PMP/
Marjenhoff Report (#0354748), reflects a September 10, 2011 ``issue'' 
date, which is consistent with the PMP, but inconsistent with the date 
on the scrip. Compare Gov't Ex. 8, at 17-18, and Gov't Ex. 4, at 13-14, 
with Gov't Ex. 6, at 2, 13.
---------------------------------------------------------------------------

    \59\ According to a key included in the PMP/Marjenhoff Report, 
the pharmacy identification number associated with this dispensing 
event corresponds to the number assigned to the CVS Pharmacy. Gov't 
Ex. 6, at 11, 15.
    \60\ This anomaly remains unexplained by any Government witness, 
but likewise received no attention from the Respondent. In light of 
the other data in the scrip and dispensing label, which correspond 
to the data on the PMP/Marjenhoff Report, this discrepancy does not 
undermine the weight afforded to the exhibit. Still, it would have 
been helpful for the Government, as the proponent of the exhibit to 
explain this aspect of the document.
---------------------------------------------------------------------------

    At the hearing, PA Francis testified that she neither signed this 
scrip nor authorized this prescription. Tr. 205-06, 261. Exec. Dir. 
Loring testified that, in his opinion, the signature on the scrip was 
handwritten (i.e, not computer generated). Tr. 711.
    This dispensing event resulted in a 23-day supply of the 
medication. Gov't Ex. 6, at 2, 13. Thus, even by the terms of the 
scrips (some of which were presented on multiple occasions and most of 
which were forged), over the course of the 208 days that elapsed from 
Dispensing Event 1, the Respondent had received an aggregate amount of 
medication that should have lasted 248 days (40 extra dosage days) \61\ 
before this prescription was filled.\62\
---------------------------------------------------------------------------

    \61\ It is worth noting that these amounts do not include 
whatever controlled substance medication the Respondent was 
receiving through prescriptions issued by Dr. Black and/or members 
of Dr. Black's staff.
    \62\ The Respondent's argument that ``the spacing of 
prescriptions follows a pattern one would expect to see if a 
professional was prescribing a controlled substance for a medical 
reason'' (ALJ Ex. 60, at 11) is completely bereft of any competent 
opinion of record to support it. No expert testified about the type 
or quantities of medication that could be appropriate here. On this 
record, the only comparison that can competently be examined is the 
dosages of medication set forth on forged, illegitimate scrips, and 
the Respondent regularly exceeded even those fictitious levels.
---------------------------------------------------------------------------

The Respondent's Evidence

    The Respondent's case-in-chief was presented through her own 
testimony and the testimony of her former medical assistant at McLeod 
Medical, Malana Diminovich.
    Malana Diminovich testified that she has been a certified medical 
assistant for eleven years, and currently works at the ABQ Health 
Partners (ABQ) in Albuquerque, New Mexico. Tr. 719-20. Prior to 
beginning her current position at ABQ, Ms. Diminovich worked as a 
medical assistant at McLeod Medical for approximately five years, and 
left when the McLeod Medical HR manager accused her of forgery. Tr. 
720-21, 739. Diminovich explained that she worked as the Respondent's 
medical assistant and that, during the Respondent's tenure at McLeod 
Medical, there were approximately six providers, each one of whom 
generally had two assigned medical assistants. Tr. 721, 739. Ms. 
Diminovich explained that she worked towards the back of the office in 
a space she shared with the HR manager, PA Francis, and the Respondent. 
Tr. 721-22. Diminovich testified that she observed some level of 
tension between the Respondent and the HR manager, PA Francis, and Dr. 
Edmonds. Tr. 741-42.
    Ms. Diminovich stated that, when they worked together, she knew the 
Respondent's medical record system passcode and that she had sufficient 
computer access with that passcode to print out a prescription for 
controlled substances under the Respondent's name. Tr. 727. She 
testified that the scrips would then be printed out on blue (security-
feature) paper by a printer located in Dr. Edmonds's office towards the 
front of the building. Tr. 724-26. Diminovich believed that Dr. Edmonds 
and PA Francis handled most of the patients requiring narcotics 
prescriptions,\63\ but on those occasions when the Respondent would 
need to issue a controlled substance prescription, Ms. Diminovich would 
log into the computer system, select the Respondent's name as the 
provider, print out the prescription, and then present it to Dr. 
Edmonds for his signature. Tr. 730-31.
---------------------------------------------------------------------------

    \63\ Tr. 728-29.
---------------------------------------------------------------------------

    Diminiovich testified that she was aware that PA Francis was 
prescribing pain medication for the Respondent, and testified that she 
even remembered being in the room at times when Francis prepared the 
scrips. Tr. 732-33. She explained that she would see PA Francis write 
out a prescription and then either hand it to the Respondent or leave 
it on her desk. Tr. 732. Diminovich even remembered ``an occasional 
time'' when, at Francis's direction, she called prescriptions into 
pharmacies for the Respondent. Tr. 733.
    Ms. Diminovich testified that she has been trained as an emergency 
medical technician (EMT) and that she received training on how to 
detect when an individual is under the influence of medication. Tr. 
735-36. Applying her training as a volunteer EMT to her observations of 
the Respondent, Diminovich testified that she had no reason to believe 
that the Respondent was under the influence of narcotics or 
inappropriately seeking medication. Tr. 733-38.
    There are several aspects of Ms. Diminovich's testimony that tend 
to somewhat diminish the extent to which it can and should be relied 
upon. Although the witness testified that she observed ``animosity'' 
between the Respondent and Dr. Edmonds, PA Francis, and the McLeod 
Medical HR manager, this testimony is not consistent with other 
credible evidence of record. Francis and Edmonds both described their 
working relationship

[[Page 29082]]

with the Respondent as ``good,'' \64\ and the Respondent described Dr. 
Edmonds as ``a very kind man'' and ``very polite and professional.'' 
Tr. 825-26. Additionally, the fact that the Respondent chose PA Francis 
to be her principal medical provider \65\ when there were other choices 
in the office, including the ``very kind'' Dr. Edmonds,\66\ tends to 
undermine any claim of tension between Francis and the Respondent. 
Furthermore, Diminovich never indicates whether the animosity she 
perceived predated or postdated the discovery at McLeod that the 
Respondent was the beneficiary of about a dozen forged controlled 
substance prescriptions on office scrip stationary. The testimony 
regarding office tension is vague and not entirely consistent with 
reliable record evidence.
---------------------------------------------------------------------------

    \64\ Tr. 219, 359.
    \65\ Tr. 805.
    \66\ Tr. 825.
---------------------------------------------------------------------------

    Similarly, there are issues regarding Diminovich's testimony that, 
based on her training as an EMT, she is able to competently conclude 
that the Respondent was never observed to be under the influence of 
controlled substances during the time the two worked together at McLeod 
Medical. Tr. 733-34. Diminovich testified to having received some EMT 
training related to recognizing individuals under the influence of 
controlled substances. Tr. 735-37. Even if her competence in this area 
were to be conceded, arguendo, it conflicts with the Respondent's own 
testimony that she was receiving and (presumably) taking controlled 
substances from PA Francis, Dr. Black, and one of Dr. Black's 
associates during this time, as well as the Respondent's opiate-
positive random urinalysis result. Tr. 364-66, 392, 400. Even the 
Respondent does not contest the fact that during this time she was 
taking controlled medications. Tr. 802-03, 810-11, 820-23, 838-39, 907-
08, 914, 926. Diminovich's testimony in this regard even stands at some 
odds with her own testimony that she was aware that the Respondent was 
receiving controlled substance prescriptions from PA Francis. Tr. 732-
33. If Ms. Diminovich's expertise to divine controlled substance use by 
patients is assumed at face value, and the Respondent's posture that 
she validly received controlled substances from PA Francis and Dr. 
Black's office is credited, it raises the issue of where the controlled 
substances she did receive were going. Put simply, either the 
Respondent was taking the prescribed medication and Diminovich (not 
withstanding her purported expertise) was unable to accurately perceive 
that, or Diminovich was correct, the Respondent had no opiates in her 
system, and the medication was being diverted for another purpose. A 
third (more likely) alternative is that Ms. Diminovich has no idea 
whether there were controlled substances in the Respondent's system, 
and that she testified in this manner in an effort to help the 
Respondent defend herself in these proceedings. To the extent that Ms. 
Diminovich's testimony was offered to establish that the Respondent 
never appeared to slur her words, sway in her gait, or in other ways 
appear over-medicated, this issue was never alleged by the Government 
or raised by the evidence.
    Additionally, much of Ms. Diminovich's testimony was too vague and 
lacking in detail to stand up against other record evidence. She said 
she saw PA Francis prescribe controlled substances to the Respondent 
and hand the scrips over, but never says when or how often, and does 
not provide details about a single such event she recalls. In a similar 
vein, she says there was animosity, but never provides any timeframe, 
specific conversations, incidents, or areas of contention. She says 
that the Respondent did not seem like she was under the influence of 
medication but disregards the fact that, by every bit of uncontested 
evidence, the Respondent was receiving powerful controlled medications 
in significant doses. Additionally, by virtue of the fact that, like 
the Respondent (by whom she was supervised, and apparently amicably 
so), Ms. Diminovich left McLeod Medical in the midst of allegations of 
forgery leveled against her, it would be difficult to view her as a 
completely impartial witness regarding similar allegations related to 
her former supervisor during the time when they worked together. Tr. 
739. In short, Ms. Diminovich's testimony was lacking in detail, 
inconsistent with other credible record evidence, and not entirely 
objective or plausible. While there were certainly credible aspects of 
her testimony, it must be viewed skeptically to the extent it conflicts 
with other, more credible record evidence.
    The Respondent also testified as a part of her case-in-chief, and, 
during the course of her testimony, she listed a long and commendable 
professional history of varied experience in the medical profession, 
hospital administration, and academia. She explained that she is a 
licensed doctor of osteopathic medicine (D.O.), and that she is 
currently employed by the Indian Health Service (IHS) at its 
Crownpoint, New Mexico facility. Tr. 748-49, 752. Additionally, the 
Respondent stated that she is also the medical director at Corrections 
Corporation of America (CCA) in Estancia, New Mexico. Tr. 749.
    The Respondent testified that she received her Bachelor of Arts 
degree in biology and science in 1983 from St. Thomas University in 
Miami and, in 1987, was awarded her medical degree from Nova 
Southeastern University, College of Osteopathic Medicine, in Fort 
Lauderdale. Tr. 750-51. According to the Respondent, she commenced her 
medical career as a rural health practitioner in Tennessee,\67\ and 
eventually transitioned to solo practices in Indiana and then in 
Corydon, Iowa. Tr. 753-56. The Respondent related that before leaving 
Indiana for Iowa in 2000, she was involved in a severe automobile 
accident,\68\ wherein she suffered multiple neck and femur fractures. 
Tr. 754-55. The Respondent testified that, as a result of the car 
accident, she was the beneficiary of eight reconstructive surgeries and 
was unable to work for a year. Tr. 754-55.
---------------------------------------------------------------------------

    \67\ Tr. 752.
    \68\ The Respondent testified that the accident occurred while 
she was driving to attend to a patient who was in labor. Tr. 754.
---------------------------------------------------------------------------

    The Respondent testified that once she had recovered sufficiently 
to return to work, she spent four to five years practicing in Corydon, 
Iowa. Tr. 755-56. Because of restrictions placed on her license by the 
Iowa Medical Board,\69\ and reckoning that she ``was fed up with 
medicine,'' \70\ the Respondent testified that she temporarily left the 
practice of medicine and took a position as a billing and coding 
specialist at a hospital in Ganado, Arizona. Tr. 756-58, 764. The 
Respondent's professional odyssey next took her to Albuquerque, New 
Mexico, where, prior to her association with McLeod Medical, she joined 
the faculty of Brookline College as the Dean of Allied Health, a 
position with both administrative and teaching responsibilities.\71\ 
Tr. 757, 759.
---------------------------------------------------------------------------

    \69\ See Gov't Ex. 9.
    \70\ Tr. 757.
    \71\ The Respondent testified that she taught courses in coding 
and billing at times when the college did not have a professor to 
teach those course offerings. Tr. 759.
---------------------------------------------------------------------------

    The Respondent explained that the restrictions put upon her by the 
Iowa Medical Board were the result of a settlement agreement she 
entered into with the Board, which placed her state medical license on 
probation while she completed several requirements. Tr. 763-65; Gov't 
Ex. 9. These requirements included a monetary fine, a series of 
continuing education courses, and monitoring by a preceptor doctor. Tr. 
765. The Respondent testified that she

[[Page 29083]]

fulfilled her obligations, completed a course on issues associated with 
prescribing controlled substances,\72\ and worked (part-time and 
without compensation) under the supervision of a preceptor-physician 
\73\ (``to keep [her] skills up'' \74\) at an IHS facility while she 
was working in Ganado. Tr. 766-70. When she began working at Brookline 
College, the Respondent applied for her state license to practice 
medicine in New Mexico. Tr. 770-71. In November 2010, one month after 
the Iowa Medical Board discharged her from her probation,\75\ and upon 
receiving her New Mexico D.O. license,\76\ the Respondent went to work 
at McLeod Medical, a position she held for approximately one year 
before she was fired. Tr. 760, 770-71.
---------------------------------------------------------------------------

    \72\ The Respondent testified that she took a course entitled 
``Prescribing Controlled Substance Pitfalls,'' and, subsequently, 
she has completed 160 hours of pain management training. Tr. 769. 
The coursework was in compliance of the terms of the IBO/SA. Tr. 
770.
    \73\ The Respondent indicated that practicing with at preceptor 
was a condition placed upon her by the Iowa Medical Board in the 
IBO/SA. Tr. 758; Gov't Ex. 9, at 4.
    \74\ Tr. 768.
    \75\ Tr. 770.
    \76\ The Respondent explained that ``[a]nytime there's a doctor 
who's had any kind of sanctions or anything, it takes a little bit 
longer to get a [state medical] license, so that's what I was doing, 
working as a dean in the process of getting my New Mexico license.'' 
Tr. 771.
---------------------------------------------------------------------------

    At the time when she was hired at McLeod Medical, the Respondent no 
longer had a DEA COR (a previous COR having expired during the time she 
was ``fed up with medicine'' \77\), and McLeod Medical paid her COR 
application fee. Tr. 771-73. According to the Respondent, because she 
could not prescribe controlled substances without a COR, the staff at 
McLeod attempted to give her only patients that would not likely 
require prescriptions for controlled substances. Tr. 773-74. By the 
Respondent's recollection, when she worked at McLeod Medical, Dr. 
Edmonds and PA Francis bore the bulk of the practice's pain management 
patients. Tr. 773-75. On occasions, however, where one of her patients 
required such medication, the Respondent would write a prescription for 
controlled substances, and either Dr. Edmonds or PA Francis would 
authorize the prescription. Tr. 775-76. The Respondent testified that, 
on such occasions, she would write a note on a piece of paper and then 
hand it to her medical assistant, Ms. Diminovich. Tr. 788. Diminovich, 
who knew the Respondent's system passcode, would then log onto one of 
the office computers (sometimes the Respondent's computer) and, using 
the Respondent's passcode, generate the e-scrip. Tr. 785-86, 788, 796. 
At one point during her testimony, the Respondent indicated that Ms. 
Diminovich generated the scrips,\78\ and, at another point, she 
indicated that the scrips would be printed out by Dr. Edmonds or PA 
Francis. Tr. 788. In both versions of the Respondent's account of 
things, irrespective of who did the actual printing, the scrip would be 
signed by Francis \79\ or Edmonds. Tr. 788-89. The Respondent described 
McLeod Medical as a large office, with as many as thirteen to fourteen 
staff employees working there during the weekdays. Tr. 777, 782. She 
worked toward the rear of the office in an eight-by-ten foot area along 
with PA Francis and the HR manager. Tr. 777, 779. Dr. Edmonds's office 
and the reception area were situated in the front half of the office. 
Tr. 780. The Respondent said she worked full days at McLeod Medical 
from Monday through Thursday and a shorter day on Fridays. Tr. 782-83. 
The Respondent testified that, on Friday afternoons, she worked at the 
prison in Estancia. Tr. 783. PA Francis would typically arrive and 
leave an hour earlier than the Respondent, and Dr. Edmonds shared 
similar hours to the Respondent, with different days off. Id.
---------------------------------------------------------------------------

    \77\ Tr. 757.
    \78\ Tr. 785.
    \79\ The Respondent testified that because she and Dr. Edmonds 
had opposite days off and that, because of her close physical 
proximity in the office to PA Francis, her controlled substance 
scrips were more often authorized by Francis than by Edmonds. Tr. 
788-89.
---------------------------------------------------------------------------

    The Respondent indicated that, contrary to McLeod Medical IT 
policy, she remained logged onto her computer with her password for an 
entire day ``a few times.'' Tr. 789-90. When pressed on how frequently 
this occurred, the ``few times'' morphed into ``maybe once a week'' 
and, ultimately, to a clarification where she insisted that she had 
testified to ``one or two times a week.'' Tr. 790, 792. In any event, 
it seems that the office IT policy regarding password integrity was not 
strictly enforced, and that the computer on the Respondent's cubicle 
\80\ likely remained for lengthy periods in a signed-in posture several 
times a week. Inasmuch as the Respondent testified that she regularly 
tasked Ms. Diminovich with the preparation of scrips and securing the 
required provider authorization, it is more likely than not that the 
extended sign-in periods were not ``mistake[s],'' \81\ as she had 
presented, but, rather, done by design borne of convenience. The 
medical software in use at the time at McLeod did not extend medical 
assistants, such as Ms. Diminovich, the privilege of preparing 
controlled substance e-scrips.\82\ By leaving the Respondent's computer 
logged on with the Respondent's password, it allowed the Respondent to 
regularly task Diminovich with preparing e-scrips from the ``piece of 
paper in front of the chart'' \83\ to be presented for signature by 
Francis or Edmonds. The Respondent stated as much at another point in 
her testimony, where she agreed that Ms. Diminovich would sit at her 
desk and access the computer where the Respondent remained signed in. 
Tr. 796-97. The Respondent indicated that she ``never got into the 
controlled substance part [of the medical software program] because, 
you know, I never had a need for it. I was always asking people to do 
it for me.'' Tr. 797. However, when asked why Diminovich would be using 
the Respondent's computer instead of her own or one of the other 
computers in the office, the Respondent unconvincingly offered that it 
was ``[b]ecause the medical assistants' computers were like way down 
the hall, and if we were in a hurry and we were down in the corner 
there.'' Tr. 797. The Respondent further described Diminovich's 
computer as being ``at the nurse's station which was . . . a long way 
down the hall and very inconvenient.'' Tr. 799. This becomes even more 
confusing in view of the fact that, because the Respondent testified 
that her cubicle was in the rear of the office,\84\ the nurse's station 
would have to have been closer to the exam rooms where the patients 
were seen, and that each exam room had its own computer that Diminovich 
presumably could have used. Tr. 800. In light of the working dynamic 
that the Respondent had developed with Diminovich, attributing this 
practice of allowing Diminovich to use her computer while she remained 
signed in to a ``mistake'' that occurred ``a few times'' \85\ is simply 
not plausible, and the Respondent ultimately conceded as much. Tr. 798-
99. Once the point was conceded, the Respondent stated that ``if I 
wanted [Diminovich] to write a--you know, she could also sign under her 
password at my computer and write out prescriptions, too.'' Tr. 798. 
But inasmuch as Diminovich's password did not authorize the preparation 
of controlled substance prescriptions, this answer is a bit confusing. 
The equivocation by the Respondent on this otherwise relatively

[[Page 29084]]

unimportant point regarding this arguably benign business practice 
borne of convenience says less about the merits of the Respondent's 
case than it does about her overall credibility.
---------------------------------------------------------------------------

    \80\ Tr. 794-96.
    \81\ Tr. 789.
    \82\ Tr. 421.
    \83\ Tr. 788.
    \84\ Tr. 777.
    \85\ Tr. 789.
---------------------------------------------------------------------------

    The Respondent acknowledged that, on February 14, 2011, she asked 
to be placed on PA Francis's patient schedule.\86\ Tr. 801-02, 813. The 
Respondent testified that while she did not relish the idea of being 
treated by a colleague in the same office,\87\ in order to take 
advantage of the healthcare insurance provided by McLeod Medical, all 
employees were required to use McLeod Medical as their primary 
provider. Tr. 801-02. PA Francis agreed to see the Respondent and, 
after Francis's assigned medical assistant (Leilani) took a medical 
history, the Respondent testified that PA Francis asked some questions 
and conducted a brief examination. Tr. 802. By the Respondent's 
account, she explained to Francis that she needed a refill on a year's 
supply of thyroid medication, blood pressure medication, and Cymbalta 
(a non-controlled medication) for what she described as ``chronic 
pain.'' \88\ Tr. 802-03, 806, 810. The Respondent testified that she 
also explained to Francis that she had attempted to make an appointment 
with a pain specialist, Dr. Pamela Black, for chronic pain in her neck, 
but that the appointment would ``be months down the line.'' Tr. 810. 
Although the Respondent testified that she could not get in to see Dr. 
Black for months, Francis recalled that the Respondent said it would be 
several weeks and that, on the day of her appointment, the Respondent 
only sought a one-month supply of medication. Tr. 175. The Respondent 
remembered telling Francis that ``well you know, I am under so much 
stress here, and I'm working so many hours, my neck is just killing me 
and I can't function. And in the past, you know, hydrocodone has 
worked, and could you write me a scrip for that[?]'' Tr. 810. According 
to the Respondent, PA Francis said ``no problem,'' and wrote 
prescriptions for all of the medications she had requested. Tr. 810.
---------------------------------------------------------------------------

    \86\ Although Francis was a physician's assistant at McLeod 
Medical, and Dr. Edmonds was a D.O. and, in her words, ``a very kind 
man'' (Tr. 825), the Respondent testified that she chose to 
establish with Francis because she ``was not comfortable seeing Dr. 
Edmonds as a provider, as my provider.'' Tr. 805.
    \87\ Tr. 802.
    \88\ The Respondent testified that she was not aware of any 
legal impediment that would have prevented her from prescribing 
these non-controlled substances to herself, but indicated that she 
did not do so because she had ``always been taught it was unethical, 
so [she] never did it.'' Tr. 804.
---------------------------------------------------------------------------

    During her testimony, the Respondent provided some details about 
her efforts to establish herself as a patient at Dr. Black's pain 
management practice and the difficulties she perceived in getting seen 
personally by Dr. Black. Tr. 808, 810, 820, 925. The Respondent 
testified that she contacted Dr. Black's office in July 2011 \89\ to 
set up an appointment and that she was told to provide the office with 
x-rays, MRIs, and other medical records. Tr. 924-25. Then, in either 
July or August of that year, she met with a physician's assistant in 
Black's office, who prescribed her morphine.\90\ Tr. 925-26. It would 
not be until a month later (August 2011), according to the Respondent, 
that she would have her first face-to-face visit with Dr. Black, at 
which point she received another controlled substance prescription. Tr. 
926-27.
---------------------------------------------------------------------------

    \89\ This represents a significant departure from her 
representation to PA Francis during her February 14, 2011 
appointment that she was already in contact with Dr. Black's office.
    \90\ Interestingly, the Patient Rx History Report portion of the 
PMP/Marjenhoff Report only lists two prescribers, ``FRA RA92'' (PA 
Francis) and ``BLA PA76.'' Gov't Ex. 6, at 14. Although this portion 
of the report, including the second prescriber's name, is redacted, 
the Respondent's version of events would seem to dictate that the 
report would reflect the presence of a third prescriber--which it 
does not. This also reflects on that portion of the Respondent's 
brief which points to the absence of any August 30, 2011 entry 
regarding a dispensing event from May Pharmacy. ALJ Ex. 60, at 5. 
The PMP/Marjenhoff Report only represents a query for prescriptions 
authorized by PA Francis (FRA RA92), with entries regarding the only 
other prescriber (BLA PA76) redacted. Gov't Ex. 6, at 1, 14. While 
it is beyond argument that the record would have benefited from 
additional, competent testimony regarding the PMP/Marjenhoff Report, 
notwithstanding the Respondent's protestation to the contrary, the 
absence of an entry concerning the August 30th prescription that was 
partially dispensed by May Pharmacy (Tr. 393), at least on the 
present record, does not undermine the strength of the Government's 
case.
---------------------------------------------------------------------------

    While Francis's account of her treatment relationship was 
restricted to the single, February 14, 2011 encounter and another where 
she administered an anti-nausea injection in the office,\91\ the 
Respondent's recollection was quite different. According to the 
Respondent, PA Francis became her primary care provider, and she saw 
her ``periodically for refills on [her] medications,'' ``off and on for 
neck pain [and] trigger-point injections,'' as well as on an occasion 
where Francis administered an intravenous medication for dehydration 
caused by a virus. Tr. 811-14, 818. Also contrary to Francis's 
testimony (but consistent with Diminovich's testimony), the Respondent 
indicated that she ``periodically'' would ask (and presumably receive) 
hydrocodone prescriptions from PA Francis. Tr. 820. The Respondent 
described the interaction in this way:
---------------------------------------------------------------------------

    \91\ Tr. 202, 240-44.

I would ask [PA Francis], I said, I just need--can you refill my 
hydrocodone and write me another prescription or whatever. And she 
said, Sure. And, you know, at that point, I would go on in and see 
another patient. And like I said, she left an hour ahead of me, so 
the majority of the time, it would be on my desk or I would--you 
know, she would ask [Ms. Diminovich]. She said, Can you print it out 
---------------------------------------------------------------------------
or whatever, and then I'll sign it.

Tr. 821. In addition to being inconsistent with PA Francis's testimony, 
this version of events also relies on Ms. Diminovich's ability to 
access a computer that can print out controlled substance 
prescriptions, a functionality not available to her without the 
Respondent intentionally permitting her access to the office medical 
software signed in as a practitioner. In view of the Respondent's 
testimony that she had others prepare controlled substance scrips for 
her, it would seem unlikely that, even if the Respondent's version were 
credited, the Respondent was not fully aware that Ms. Diminovich was 
regularly accessing the office software using the Respondent's 
credentials.
    In an additional recollection that exceeded not only Francis's, but 
even Diminovich's, the Respondent also testified that sometimes Francis 
authorized Diminovich to administer injections of Toradol.\92\ Tr. 819. 
According to the Respondent, when she would ask PA Francis ``can you 
give me a shot of Toradol . . . she'd say, Malana, get her some.'' Tr. 
819.
---------------------------------------------------------------------------

    \92\ Toradol is not a controlled substance.
---------------------------------------------------------------------------

    Regarding the ill-fated phone call where the Respondent called out 
sick and subsequently met with Dr. Edmonds and PA Francis about 
employee-to-employee narcotics prescribing, the Respondent 
categorically denied ever telling anyone at McLeod Medical that she 
suffered a reaction to the hydrocodone prescribed by Francis on 
February 14, 2011. By the Respondent's account, she called in sick due 
to a headache or virus. Tr. 823. In the Respondent's words, ``I mean, I 
didn't think I'd have an adverse reaction to something I'd been on 
before.'' Tr. 823. The Respondent offered no explanation as to why the 
headache or virus would precipitate a meeting about the evils of 
controlled substance prescribing between employees, or any possible 
motivation for Francis to falsely attribute her illness to a medication 
reaction. The Respondent acknowledged that such a meeting did

[[Page 29085]]

take place, but, contrary to the testimony of Edmonds and Francis, the 
Respondent characterized the tenor of the meeting as ``very casual'' 
and insisted that ``[t]here was no policy made.'' Tr. 824-25.
    The Respondent testified that she saw PA Francis as her primary 
care provider approximately four to five times.\93\ Tr. 819. She 
testified that she received refills of medication, trigger point 
injections of Novocain, treatment for dehydration, and MRIs and x-rays 
to be provided to Dr. Black. Tr. 811, 813-15, 818-20. The Respondent 
indicated that on those occasions when she asked for more hydrocodone 
prescriptions, PA Francis would leave a completed prescription on the 
Respondent's desk, or she would ask MA Diminovich to print it out for 
her. Tr. 820-22. At one point during her testimony, the Respondent 
stated that she received seven to eight prescriptions for controlled 
substances from PA Francis, and, at another point, she testified that 
the number could have been ten. Tr. 899. She also admitted, at first, 
that she received all ten prescriptions listed on the PMP/Marjenhoff 
Report as being dispensed from February 28, 2011 and onward and that 
she, or someone acting on her behalf, picked up each of these 
prescriptions. Tr. 901-03. At another stage of the proceedings, in 
response to a question by her counsel, the Respondent retreated from 
this position, demurring instead that she was not sure if she had 
obtained every one of those prescriptions. Tr. 918-21, 923.
---------------------------------------------------------------------------

    \93\ This is in substantial conflict to PA Francis's 
recollection that she had seen the Respondent once to administer an 
in-office injection for nausea and once as a pain patient. Tr. 185, 
241, 243-44.
---------------------------------------------------------------------------

    Regarding her July 2011 positive drug test for opiates conducted by 
McLeod Medical, the Respondent testified that she had warned Dr. 
Edmonds to expect a positive result. Tr. 907. This was at some odds 
with the recollection of Dr. Edmonds, who testified that the Respondent 
did not indicate prior to the test that she was on opiates \94\ and 
that, when the screen test administered at the office yielded a 
positive result, the Respondent told him she felt she was ``being 
singled out.'' Tr. 971. The Respondent testified that, contrary to Dr. 
Edmonds's testimony, the prescription bottle she produced in response 
to the positive urinalysis result was not dated subsequent to the 
urinalysis, but prior to it. Tr. 908. The Respondent initially 
testified that she had received a prescription for morphine from one of 
Dr. Black's associates,\95\ but subsequently stated that the 
prescription for the morphine that triggered the positive drug test 
came from Dr. Black herself, and not from one of her associates. Tr. 
927-28.
---------------------------------------------------------------------------

    \94\ Tr. 968-70.
    \95\ Tr. 836, 838-39.
---------------------------------------------------------------------------

    The Respondent related that, one Saturday morning following the 
positive urinalysis result, she received a phone call at home from Dr. 
Edmonds. Tr. 831-32. She explained that Dr. Edmonds told her that he 
had reason to believe that she had been forging prescriptions. Tr. 832. 
During her testimony, the Respondent took the position that Dr. Edmonds 
was mistaken in his recollection of their conversation. The Respondent 
recalled providing an answer with the word ``twice'' in it, but, 
according to her, she was responding to Edmonds's inquiry of how many 
times she had requested controlled substance prescriptions from 
Francis. Tr. 832-33. The Respondent never explained why, in July 2011, 
she would answer such a question with the word ``twice'' when she (and 
Ms. Diminovich) had previously testified that she was receiving 
controlled substances from PA Francis on a fairly regular basis since 
the preceding February, and certainly more than ``twice.'' In fact, 
when asked, the Respondent testified that she could not remember how 
many prescriptions she had received from PA Francis ``off the top of 
[her] head.'' Tr. 826. At another point in her testimony, the 
Respondent acknowledged that she had received ``seven or eight'' such 
prescriptions from PA Francis. Tr. 899. Even if it were momentarily 
assumed, arguendo, that the Respondent perceived the question to be how 
many controlled substance prescriptions she received from Francis, the 
answer ``twice'' makes no sense whatsoever.
    The Respondent also denied ever admitting on the phone that she had 
forged prescriptions,\96\ and, at the hearing, she flatly denied ever 
having forged a single scrip. Tr. 822, 834. The Respondent recalled 
being placed on administrative leave and being directed to both enroll 
in the MTP and write a letter of apology to PA Francis as conditions 
upon returning to work. Tr. 834-35. The Respondent testified that she 
wrote a letter of apology to PA Francis, pursuant to the conditions 
placed on her return to employment by Dr. Edmonds. Tr. 882. While the 
Respondent indicated that she did not apologize regarding the forgery 
accusations being levelled against her, she expressed her regret to PA 
Francis for having asked her to be her provider because her condition 
was possibly ``a little bit more complicated for her than [the 
Respondent] thought.'' Tr. 883. The Respondent also testified that she 
voluntarily contacted the MTP and underwent psychological and 
psychiatric examinations before being placed in a program of random 
drug screening. Tr. 840-42. According to the Respondent's testimony, 
the program assigned her a color code, and, each day, she was required 
to call a phone number. Tr. 842. If the Respondent's color was selected 
on any given day, she was required to report to a clinic and provide a 
urine sample that would be tested for indications of drug use. Tr. 842.
---------------------------------------------------------------------------

    \96\ Tr. 832.
---------------------------------------------------------------------------

    The Respondent presented evidence of a series of nineteen (19) MTP 
urine drug sample (UDS) test reports for alcohol and controlled 
substances occurring between October 21, 2011 and March 23, 2012.\97\ 
Resp't Ex. 1. The UDS reports supplied by the Respondent indicated that 
(at least on those pages) the Respondent's urine was consistently 
negative for all tested substances.\98\ Id. Consistent with the 
paperwork she provided, the Respondent testified that she never 
received any indication of a positive result for controlled substances 
during the time she was monitored by MTP. Tr. 881-82; Resp't Ex. 1. It 
is worthy of note that an examination of the nineteen urinalysis 
reports reveals no discernible pattern of testing, indicating that, 
consistent with the Respondent's testimony, the tests were taken at 
random. Resp't Ex. 1. However, five of the nineteen reports also 
contain handwritten notations (the origins of which do not benefit from 
any level of explanation on the record) \99\ stating that the 
Respondent had missed certain test dates or that certain tests were 
conducted to ``make up'' for other dates.\100\ Id. at 7, 9, 10, 13, 18. 
A

[[Page 29086]]

notation on another report indicates that the test was a ``non[-]random 
extra test.'' Id. at 12. While the results of each of the provided 
nineteen tests were benign, the unexplained notations on several of the 
reports suggest that the Respondent's record for appearing for 
urinalysis tests as directed was less than even. Tr. 860-73. The 
Respondent's testimony about her UDS rescheduling was likewise uneven. 
The Respondent testified to having missed at least four of the tests 
and, possibly, to missing two others. Tr. 861, 863, 865-66, 869-70, 
870-71, 872-73. At first, the Respondent stated that she only missed 
tests because of inclement weather. Tr. 864; Resp't Ex. 1, at 7. 
However, as her testimony progressed, the Respondent conceded that 
other UDS test dates were missed due to conflicts with her work 
schedule. Tr. 866, 869, 871-73. Missed tests scheduled for December 
21st and 28th were apparently made up two days later, on the 23rd and 
30th respectively. Resp't Ex. 1, at 9-10. A test the Respondent 
apparently missed on March 2, 2012 was made up four days later, on 
March 6th. Id. at 18. A missed test originally scheduled for January 
10, 2012 was not made up until eight days later, on January 18th,\101\ 
but, curiously, a January 13, 2012 test was labeled ``non-random extra 
test,'' without any explanation in the paperwork, and took place three 
days after the January 10th miss. Id. at 12. The Respondent testified 
that she volunteered for this ``extra test'' via email because she had 
``missed the week before,'' and she ``was just proving [her]self.'' Tr. 
968-69.
---------------------------------------------------------------------------

    \97\ The admissibility of this exhibit was adjudicated in a 
post-hearing order dated May 27, 2014. ALJ Ex. 56.
    \98\ The tests purportedly monitored use of the following 
substances: Ethanol, Amphetamines, MDMA, Barbiturates, 
Benzodiazepines, Cannabinoids, Cocaine, Meperidine, Methadone, 
Methaqualone, Opiates, Oxycodone, PCP, and Propoxyphene. Resp't Ex. 
1, at 1-19.
    \99\ During the post-hearing motion practice that ultimately 
resulted in the admission of the UDS reports over the Government's 
objection, the Respondent offered a letter from the Executive 
Director/Drug Screen Coordinator at MTP, and an attachment 
purporting to explain the notations. Resp't Ex. 1A(ID). Although 
considered on the narrow issue of establishing admissibility, the 
proposed exhibit was not offered or received in evidence, but even 
if it had been, the proposed exhibit did little more than attempt to 
translate the handwriting on the UDS reports, and, on some 
occasions, it did not even accurately do that.
    \100\ Resp't Ex. 1, at 7 (noting, on report of December 6, 2011 
test, ``make up for 12/5 Snow''); id. at 9 (noting, on report of 
December 23, 2011 test, ``not called on 12/23'' and ``M/U for 12/21/
11''); id. at 10 (noting, on report of December 30, 2011 test, ``not 
called but maybe a test for 12/28 miss''); id. at 13 (noting, on 
report of January 18, 2012 test, ``make up for 1/10 working''); id. 
at 18 (noting, on report of March 6, 2012 test, ``make up for 3/2 
working'').
    \101\ Id. at 13.
---------------------------------------------------------------------------

    Standing in isolation, there is nothing categorically pernicious 
about rescheduling one (or even several) random urinalysis test(s). As 
with many issues, it is generally a question of degree. Of eighteen 
random tests, the Respondent missed and rescheduled six. Resp't Ex. 1. 
Assuming (as she urges) that the UDS package she provided contains all 
testing, excluding the ``extra'' test, this presents a missed test rate 
of 33% of all randomly-scheduled UDS tests. Although rescheduling one-
third of all random tests is by no means an insignificant number, the 
issue is (once again) less with the substance of her testimony than 
with its internal consistency. Initially, the Respondent stated that 
she only missed UDS tests due to inclement weather. Tr. 864. That 
position later morphed into misses borne of weather and work schedule. 
Tr. 866, 869, 871-73. The equivocation in her recollection and pattern 
of testimonial adjustments crafted on the spot to address 
uncontroverted evidence she was confronted with on the witness stand 
(such as the rescheduling notes from the UDS reports) diminishes the 
extent to which her testimony can be credited where it conflicts with 
other available evidence and testimony--and--she rescheduled one-third 
of her random urinalysis tests.
    Despite her participation in the MTP program, the Respondent was 
eventually terminated from her employment at McLeod Medical by Dr. 
Edmonds in October 2011. Tr. 882. Even after losing her job, the 
Respondent testified that, ``to prove a point,'' she continued in the 
MTP program through March 2012 while she was also in the process of 
``job seeking.'' \102\ Tr. 847-48, 882.
---------------------------------------------------------------------------

    \102\ Since the Respondent indicated she had already secured her 
current position at Indian Health Services in Crownpoint, New Mexico 
as of December 2011 (Tr. 752), it is difficult to understand her 
testimony as to why she still considered herself to be ``job 
seeking'' as late as March 2012.
---------------------------------------------------------------------------

    The Respondent consistently and unambiguously eschewed any 
wrongdoing on her part. She denied ever presenting the prescription for 
hydrocodone written by PA Francis on February 14, 2011 to be filled at 
two different pharmacies,\103\ and categorically denied ever forging 
any prescription for controlled substances. Tr. 822. She was likewise 
steadfast in her view that she never telephoned PIC Alvis and asked him 
to refrain from submitting her prescription through her insurance 
company. Tr. 947-48. According to the Respondent, the entire 
misadventure was the result of a mix-up caused by Dr. Black, who, 
without telling the Respondent, ``apparently had faxed this thing to 
[May Pharmacy].'' Tr. 947. The Respondent explained: ``I didn't realize 
that Dr. Black had done that, because, you know, she'll do it the day 
before, and you won't know it, you know, until you call the pharmacy.'' 
Tr. 948. Under the Respondent's version of events, she asked PIC Alvis 
to cancel the prescription, not because of an insurance issue, but 
because, before Alvis telephoned, she fortuitously received a phone 
call from May Pharmacy alerting her that a prescription she did not 
know about had been called in by Dr. Black and was ready for pickup. 
Tr. 947. Regrettably, this scenario does not explain the fact that PIC 
Alvis had been told by Pharmacist Romp at May Pharmacy that the 
Respondent picked up the prescription herself the day before she placed 
the phone call to Alvis and told him she was unaware of its existence. 
Tr. 284-85, 292-95. What's more, in view of the fact that May Pharmacy 
was only able to partially fill her medication, it is unclear why the 
staff there would have called her out of the blue to inform her that 
her prescription was ready for pick up, when the store did not yet 
possess the complete amount of the ordered quantity. The Respondent's 
account of events is simply not plausible.
---------------------------------------------------------------------------

    \103\ Tr. 942, 944.
---------------------------------------------------------------------------

    At the hearing, the Respondent acknowledged that she knew it was 
wrong for a patient to see multiple prescribers for controlled 
substances and to fill those prescriptions at multiple pharmacies. Tr. 
950-51. In her testimony, the Respondent initially ascribed her use of 
multiple pharmacies to present controlled substance prescriptions and 
collect them to convenience borne of the various routes she would take 
to commute from her home to McLeod Medical and back, based largely on 
seeking to avoid ``snow and ice.'' Tr. 828-31. This testimony was 
singularly unpersuasive and only enhanced in that respect by the fact 
that ten of the dispensing events in question took place between March 
and September, and, of that number, four occurred between July and 
September. Gov't Ex. 6, at 2-3, 13-14. This aspect of the Respondent's 
testimony was particularly telling on the issue of her credibility when 
viewed in light of her admissions that she is and was aware and 
understood that the principal reason that standard pain management 
contracts with patients include a clause prohibiting the use of 
multiple pharmacies is to avoid the risk of pharmacy-shopping and 
doctor-shopping, and that these are by no means new concepts in medical 
care. Tr. 933-34. The Respondent conceded that even under her view of 
events, she had been simultaneously utilizing multiple pharmacies and 
multiple practitioners,\104\ and attributed this behavior as the result 
of the severity of the stress and pain she was experiencing. Tr. 948-
49.
---------------------------------------------------------------------------

    \104\ Tr. 950-51.
---------------------------------------------------------------------------

    There were multiple additional areas where the Respondent's 
testimony was problematic. For example, the Respondent adamantly 
testified at great length that the prescriptions for hydrocodone 
written after February 14, 2011 were legitimately authorized by PA 
Francis. Tr. 820-22, 922. However, when she failed the random drug test 
conducted at McLeod Medical in July

[[Page 29087]]

2011 by testing positive for opiates, the Respondent did not testify 
that she explained to Dr. Edmonds that she was receiving controlled 
substance prescriptions from PA Francis.\105\ Instead, the Respondent 
testified that she presented to Dr. Edmonds a bottle of morphine 
prescribed by Dr. Black in an effort to explain why she had tested 
positive.\106\ Tr. 907-08. If the Respondent truly believed she was 
legitimately obtaining prescriptions for hydrocodone, it defies reason 
why she would not have quickly and freely disclosed to Dr. Edmonds that 
she was receiving the medication from PA Francis, especially since this 
fact could have been quickly confirmed by McLeod Medical's own 
records.\107\ The Respondent's testimony that she was unaware of any 
policy against employees prescribing narcotics to other employees \108\ 
makes this even more bewildering.
---------------------------------------------------------------------------

    \105\ Neither did Dr. Edmonds testify to such a conversation.
    \106\ Dr. Edmonds testified that the bottle was dated subsequent 
to the urinalysis. Tr. 363.
    \107\ Indeed, perhaps the greatest puzzlement of this case is 
the odd avoidance on the part of both parties to subpoena and 
produce medical records from McLeod Medical and Dr. Black that would 
likely have resolved almost all contested issues.
    \108\ Tr. 828.
---------------------------------------------------------------------------

    Moreover, at the time her urinalysis was conducted, the Respondent 
had been presented with a form that would have allowed her to list 
medications she was taking. Tr. 964. The Respondent did not list any 
medications on the form. Tr. 958, 964, 966-70. The absence of an 
appropriate note on the applicable form, and the Respondent's decision 
not to inform Dr. Edmonds that she was receiving controlled substances 
from PA Francis at the time the screen test showed positive, as well as 
her decision to only explain the positive drug test by presenting a 
prescription bottle dated after the test, all undermine her testimony. 
On this record, it is far more likely that the Respondent's positive 
urinalysis test was the result of taking medications procured over PA 
Francis's forged signatures, and for which the Respondent had no ready, 
lawful explanation that lent itself to disclosure to Dr. Edmonds.
    The Respondent's testimony regarding her relationship with Dr. 
Black was also confusing, and its apparent contradictions call further 
into question her credibility as a witness. At first, the Respondent 
testified that when she first asked to be seen by PA Francis as a 
patient on February 14, 2011, she had already set up an appointment 
with Dr. Black. Tr. 801, 808. Then, she stated that she told PA Francis 
during that initial visit that she had attempted to make an appointment 
with Dr. Black but that the appointment would be ``months down the 
line.'' Tr. 810. This would mean that, notwithstanding the severe pain 
she claimed she was enduring, the appointment that the Respondent had 
purportedly set up with Dr. Black's pain practice was scheduled five to 
six months hence. The Respondent later testified that her initial 
contact with Dr. Black's office occurred (five months later) in July 
2011 when she attempted then to schedule an appointment with her. Tr. 
924-25. Even setting aside PA Francis's (credible) recollection that 
the Respondent told her she would be seeing Dr. Black in several weeks, 
and only needed medication for one month,\109\ the Respondent's 
testimony regarding when she initially made appointment arrangements 
with Dr. Black, as well as her purported timeline of her history with 
Black's practice, labors under this unexplained, internal inconsistency 
of the time when she had her first contact with Black's practice.
---------------------------------------------------------------------------

    \109\ Tr. 175, 182-83.
---------------------------------------------------------------------------

    At one point in her testimony, the Respondent was confident that 
the morphine prescription that resulted in the positive McLeod Medical 
office UDS was written by Dr. Black. Tr. 932-33. At another point in 
her testimony, the Respondent was equally resolute that the causal 
prescription was issued by ``Dr. Black's associate.'' Tr. 839. This is 
another in a pattern of testimonial inconsistencies, but regardless of 
which version reflects reality, for the reasons that follow, neither 
version is helpful to the Respondent's cause. The Respondent testified 
that her telephone call to Dr. Black's office to set up an initial 
appointment took place sometime in July 2011, with the first 
appointment occurring approximately two weeks later. Tr. 925-26. During 
that initial visit (which would have to be mid-July at the earliest), 
she was seen by a PA, who, according to the Respondent, wrote her a 
prescription for morphine. Tr. 926. The Respondent then stated that she 
finally met with Dr. Black approximately one month after the first 
appointment, which, according to the rough timeline of events given by 
the Respondent at the hearing, would have taken place sometime between 
mid-August through mid-September 2011. Tr. 926-27. The date of the 
McLeod Medical urinalysis, however, was July 19, 2011, at least a month 
prior to her appointment with Dr. Black herself.\110\ If that version 
of her testimony is credited, which recollects that the morphine that 
resulted in the positive test was prescribed by Dr. Black herself (not 
a staff member) \111\ at the Respondent's second visit to her office 
(in mid-August), that would mean that the prescription issued by Dr. 
Black was issued at least a month after the urinalysis took place.
---------------------------------------------------------------------------

    \110\ Tr. 365.
    \111\ Tr. 927-28.
---------------------------------------------------------------------------

    The Respondent's timeline is even problematic if that portion of 
her testimony is credited which holds that it was a prescription from 
``Dr. Black's associate'' \112\ that caused the positive result. Dr. 
Edmonds credibly testified that the Respondent presented him with a 
prescription bottle dated July 25, 2011. Tr. 366. Even assuming that 
the opiate-positive result on the July 19th urinalysis was the result 
of a mid-July prescription written by a PA in Dr. Black's office prior 
to the test, there would be no reason for the Respondent to be in 
possession of a July 25, 2011 prescription bottle. July 25th would be a 
date between the appointment with Dr. Black's PA and the date (a month 
later by her account) when she was seen by Dr. Black. During her 
testimony, there was no mention of an additional appointment between 
the first PA appointment and the appointment with Black, and the 
Respondent's recollection of her conversation with the PA reflected 
that she would be seeing Dr. Black on her next visit. Tr. 926. Even if 
the positive urinalysis was the result of a morphine prescription she 
received from Dr. Black's PA in mid-July (a month prior to her first 
encounter with Dr. Black), there is no explanation as to why (as 
credibly testified to by Dr. Edmonds) she would have had a prescription 
bottle dated July 25, 2011,\113\ a date that occurred during the month 
between the PA and Dr. Black appointments.
---------------------------------------------------------------------------

    \112\ Tr. 839.
    \113\ Tr. 366.
---------------------------------------------------------------------------

    Needless to say, the conflict in the Respondent's timeline of 
events here does not enhance her credibility. In one telling exchange, 
the Respondent testified that she did not remember the date of the 
McLeod urinalysis, and thought that it may have occurred in October of 
2011,\114\ a date that would have lent itself much better to the 
Respondent's testimonial timeline, irrespective of the dates of 
treatment she proposed as having occurred at Dr. Black's practice.
---------------------------------------------------------------------------

    \114\ Tr. 932.
---------------------------------------------------------------------------

    During her testimony, the Respondent indicated that all her 
prescriptions were picked up from the various pharmacies by herself or 
a member of her family. Tr. 901-03. Later, in response to questioning 
from her counsel, the

[[Page 29088]]

Respondent claimed that she could not recall whether she had obtained 
all of those same prescriptions. Tr. 918-19, 921, 923. The initial 
response, asked and answered directly, rings as more credible, and is 
corroborated, at least to some extent, by PIC Alvis's recollection that 
the Respondent's prescriptions dispensed at the Walmart Pharmacy 
Edgewood were picked up by either the Respondent or members of her 
family. Tr. 315-16.
    As described above, in addition to being the witness with the most 
at stake in the outcome of the proceedings, the Respondent's testimony 
throughout this hearing was punctuated by internal inconsistencies, 
implausibility, and chronic equivocation. As discussed in great detail, 
supra, there were several times where her answers seemed to evolve with 
objective evidence and dates she was confronted with. Accordingly, 
while there were parts of the Respondent's testimony that were 
credible, where her testimony conflicts with other, more credible 
aspects of the record, it cannot prevail.

The Analysis

    The Government urges that the Respondent's application for DEA COR 
be denied because the granting of a COR to the Respondent would be 
inconsistent with the public interest. Under 21 U.S.C. 823(f),\115\ the 
Agency may deny the application for a COR upon supported findings that 
``the issuance of such registration . . . would be inconsistent with 
the public interest.'' 21 U.S.C. 823(f). The following factors have 
been supplied by Congress in determining ``the public interest'':

    \115\ Regrettably, in its OSC, prehearing statements, and 
closing brief, the Government consistently and erroneously relies 
upon 21 U.S.C. 824, the CSA revocation statute. ALJ Ex. 1, at 1; ALJ 
Ex. 4, at 1; ALJ Ex. 7, at 1; ALJ Ex. 40, at 1; ALJ Ex. 59, at 1.

(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.

Id.
    ``[T]hese factors are considered in the disjunctive.'' Robert A. 
Leslie, M.D., 68 FR 15227, 15230 (2003). Any one or a combination of 
factors may be relied upon, and when exercising authority as an 
impartial adjudicator, the Agency may properly give each factor 
whatever weight it deems appropriate in determining whether an 
application for a registration should be denied. Id.; David H. Gillis, 
M.D., 58 FR 37507, 37508 (1993); see Morall v. DEA, 412 F.3d 165, 173-
74 (D.C. Cir. 2005); Joy's Ideas, 70 FR 33195, 33197 (2005); Henry J. 
Schwarz, Jr., M.D., 54 FR 16422, 16424 (1989). Moreover, the Agency is 
``not required to make findings as to all of the factors.'' Hoxie v. 
DEA, 419 F.3d 477, 482 (6th Cir. 2005); Morall, 412 F.3d at 173. The 
Agency is not required to discuss consideration of each factor in equal 
detail, or even every factor in any given level of detail. Trawick v. 
DEA, 861 F.2d 72, 76 (4th Cir. 1988) (holding that the Agency's 
obligation to explain the decision rationale may be satisfied even if 
only minimal consideration is given to the relevant factors and that 
remand is required only when it is unclear whether the relevant factors 
were considered at all). The balancing of the public interest factors 
``is not a contest in which score is kept; the Agency is not required 
to mechanically count up the factors and determine how many favor the 
Government and how many favor the registrant. Rather, it is an inquiry 
which focuses on protecting the public interest. . . .'' Jayam Krishna-
Iyer, 74 FR 459, 462 (2009).
    In the adjudication of an application for a DEA COR, the DEA has 
the burden of proving that the requirements for registration are not 
satisfied. 21 CFR 1301.44(d). Where the Government has sustained its 
burden and established that an applicant has committed acts 
inconsistent with the public interest, that applicant must present 
sufficient mitigating evidence to assure the Agency that he or she can 
be entrusted with the responsibility commensurate with such a 
registration. Steven M. Abbadessa, D.O., 74 FR 10077, 10078, 10081 
(2009); Jackson, 72 FR at 23853. Where the Government has met this 
burden, the applicant must show an acceptance of responsibility for its 
misconduct and a demonstration that corrective measures have been 
undertaken to prevent the re-occurrence of similar acts. Jeri Hassman, 
M.D., 75 FR 8194, 8236 (2010). In determining whether and to what 
extent a sanction is appropriate, consideration must be given to both 
the egregiousness of the offense established by the Government's 
evidence and the Agency's interest in both specific and general 
deterrence. Fred Samimi, M.D., 79 FR 18698, 18713 & n.40 (2014); David 
A. Ruben, M.D., 78 FR 38363, 38364, 38385 (2013).
    Normal hardships to the practitioner, and even the surrounding 
community, which are attendant upon the denial of a registration, are 
not a relevant consideration. Linda Sue Cheek, M.D., 76 FR 66972, 
66972-73 (2011); Gregory D. Owens, D.D.S., 74 FR 36751, 36757 (2009). 
The Agency's conclusion that past performance is the best predictor of 
future performance has been sustained on review in the courts, Alra 
Labs., Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), as has the 
Agency's consistent policy of strongly weighing whether an applicant 
who has committed acts inconsistent with the public interest has 
accepted responsibility and demonstrated that he or she will not engage 
in future misconduct, Hoxie, 419 F.3d at 483; see also Ronald Lynch, 
M.D., 75 FR 78745, 78754 (2010) (holding that the Respondent's attempts 
to minimize misconduct undermined acceptance of responsibility); George 
Mathew, M.D., 75 FR 66138, 66140, 66145, 66148 (2010); George C. 
Aycock, M.D., 74 FR 17529, 17543 (2009); Abbadessa, 74 FR at 10078; 
Krishna-Iyer, 74 FR at 463; Medicine Shoppe-Jonesborough, 73 FR 364, 
387 (2008).

Factors 1 & 3: The Recommendation of the Appropriate State Licensing 
Board or Professional Disciplinary Authority; and Any Conviction Record 
Under Federal or State Laws Relating to the Manufacture, Distribution, 
or Dispensing of Controlled Substances

    Regarding Factor 1, it is undisputed that the record contains no 
specific recommendation from authorities in New Mexico, the state where 
the Respondent seeks to hold a COR. However, the record does contain a 
settlement agreement and final order from the Board of Medical 
Examiners of the State of Iowa (Iowa Board).
    Although the plain language of the CSA appears to require a 
recommendation addressed to DEA's COR decision, the Agency has 
indicated that it has ``typically taken a broader view as to the scope 
of this factor.'' Ralph J. Chambers, M.D., 79 FR 4962, 4969 (2014) 
(citing Tony T. Bui, M.D., 75 FR 49979, 49986 (2010)); see also Kenneth 
Harold Bull, M.D., 78 FR 62666, 62672 (2013). Whatever the outer limits 
are of the Agency's ``broader view,'' it is not so broad that it 
includes recommendations from a state beyond the state where the 
Respondent seeks to hold her DEA COR. Zizhuang Li, M.D., 78 FR 71660, 
71663 (2013) (holding that the state where an applicant seeks to hold a 
COR is ``the appropriate State

[[Page 29089]]

licensing board or professional disciplinary authority'' within the 
meaning of 21 U.S.C. 823(f), not a state where the applicant formerly 
practiced and is no longer authorized to handle controlled substances). 
Hence, even to the extent that a COR recommendation intent could be 
extrapolated from the order of the Iowa Board, it will carry no weight 
under this factor.
    As discussed, supra, the record does not contain any recommendation 
from New Mexico state authorities. However, the fact that a state has 
not acted against an applicant's state authority is not dispositive in 
this administrative determination as to whether granting her 
registration is consistent with the public interest. Patrick W. 
Stodola, M.D., 74 FR 20727, 20730 (2009); Krishna-Iyer, 74 FR at 461. 
It is well-established Agency precedent that ``state [authority] is a 
necessary, but not sufficient condition for registration.'' John H. 
Kennedy, M.D., 71 FR 35705, 35708 (2006) (quoting Leslie, 68 FR at 
15230). DEA bears an independent responsibility to determine whether a 
registration is in the public interest. Mortimer B. Levin, D.O., 55 FR 
8209, 8210 (1990). 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 state government. Edmund 
Chein, M.D., 72 FR 6580, 6590 (2007), aff'd, Chein v. DEA, 533 F.3d 828 
(D.C. Cir. 2008), cert. denied, 555 U.S. 1139 (2009). Congress vested 
authority to enforce the CSA in the Attorney General, not state 
officials. Stodola, 74 FR at 20735 n.31. Thus, contrary to the position 
taken by the Respondent in her brief,\116\ on these facts, the absence 
of a recommendation by the appropriate state licensing board does not 
weigh for or against a determination as to whether granting the 
Respondent's COR application would be consistent with the public 
interest. See Roni Dreszer, M.D., 76 FR 19434, 19444 (2011) (``[T]he 
fact that the record contains no evidence of a recommendation by a 
state licensing board does not weigh for or against a determination as 
to whether continuation of the Respondent's DEA certification is 
consistent with the public interest.'').
---------------------------------------------------------------------------

    \116\ ALJ Ex. 60, at 14.
---------------------------------------------------------------------------

    Regarding Factor Three, the record in this case does not contain 
evidence that the Respondent has been convicted of (or even charged 
with) \117\ a crime related to any of the controlled substance 
activities designated under this provision in the CSA. Although the 
standard of proof in a criminal case is more stringent than the 
standard required at an administrative proceeding, and the elements of 
both federal and state crimes relating to controlled substances are not 
always co-extensive with conduct that is relevant to a determination of 
whether registration is within the public interest, evidence that an 
applicant has been convicted of crimes related to controlled substances 
is a factor to be evaluated in reaching a determination as to whether 
he or she should be entrusted with a DEA COR. The probative value of an 
absence of any evidence of criminal prosecution is somewhat diminished 
by the myriad of considerations that are factored into a decision to 
initiate, pursue, and dispose of criminal proceedings by federal, 
state, and local prosecution authorities. See Robert L. Dougherty, 
M.D., 76 FR 16823, 16833 n.13 (2011); Dewey C. MacKay, M.D., 75 FR 
49956, 49973 (2010) (``[W]hile a history of criminal convictions for 
offenses involving the distribution or dispensing of controlled 
substances is a highly relevant consideration, there are any number of 
reasons why a registrant may not have been convicted of such an 
offense, and thus, the absence of such a conviction is of considerably 
less consequence in the public interest inquiry.''), aff'd, MacKay v. 
DEA, 664 F.3d 808 (10th Cir. 2011); Ladapo O. Shyngle, M.D., 74 FR 
6056, 6057 n.2 (2009). Therefore, contrary to the position taken by the 
Respondent,\118\ the absence of criminal convictions militates neither 
for nor against the denial sought by the Government.
---------------------------------------------------------------------------

    \117\ DI Bencomo's testimony that DEA ``tried'' to bring 
criminal charges was not considered for any purpose in this 
recommended decision. Tr. 655.
    \118\ ALJ Ex. 60, at 14.
---------------------------------------------------------------------------

    Accordingly, consideration of the record evidence under Factors One 
and Three weighs neither for nor against the Government's petition to 
deny the Respondent's COR application.

Factors 2 & 4: The Respondent's Experience in Dispensing Controlled 
Substances; and Compliance With Applicable State, Federal, or Local 
Laws Relating to Controlled Substances

    Regarding Factor 2, in requiring an examination of an applicant's 
experience in dispensing controlled substances, Congress manifested an 
acknowledgement that the qualitative manner and the quantitative volume 
in which an applicant has engaged in the dispensing of controlled 
substances may be significant factors to be evaluated in reaching a 
determination as to whether an applicant should be (or continue to be) 
entrusted with a DEA COR. In some (but not all) cases, viewing an 
applicant's actions against a backdrop of how her regulated activities 
have been performed within the scope of her registration can provide a 
contextual lens to assist in a fair adjudication of whether 
registration is in the public interest. In this regard, however, the 
Agency has applied principles of reason, coupled with its own 
expertise, in the application of this factor. For example, the Agency 
has taken the reasonable position that this factor can be readily 
outweighed by acts held to be inconsistent with the public interest. 
Krishna-Iyer, 74 FR at 463; see also Hassman, 75 FR at 8235 
(acknowledging Agency precedential rejection of the concept that 
conduct inconsistent with the public interest is rendered less so by 
comparing it with a respondent's legitimate activities that occurred in 
substantially higher numbers); Paul J. Cargine, Jr., 63 FR 51592, 51560 
(1998) (``[E]ven though the patients at issue are only a small portion 
of Respondent's patient population, his prescribing of controlled 
substances to these individuals raises serious concerns regarding [his] 
ability to responsibly handle controlled substances in the future.''). 
Similarly, in Cynthia M. Cadet, M.D., the Agency determined that 
existing List I precedent \119\ clarifying that experience related to 
conduct within the scope of the COR sheds light on a practitioner's 
knowledge of applicable rules and regulations would not be applied to 
cases where intentional diversion allegations were sustained. 76 FR 
19450, 19450 n.3 (2011). The Agency's approach in this regard has been 
sustained on review. MacKay, 664 F.3d at 819.
---------------------------------------------------------------------------

    \119\ See, e.g., Volusia Wholesale, 69 FR 69409, 69410 (2004).
---------------------------------------------------------------------------

    In addition to Factor 2 (experience in dispensing), Factor 4 
(compliance with laws related to controlled substances) is also germane 
to a correct resolution of the present case. In order to maintain the 
``closed regulatory system'' designed by Congress in the CSA to 
``prevent the diversion of drugs from legitimate to illicit channels,'' 
Gonzales v. Raich, 545 U.S. 1, 13 (2005), Factor 4 looks to the 
applicant's compliance with federal and state laws related to 
controlled substances as an indicator of whether an applicant should be 
entrusted with the responsibilities of a registrant, 21 U.S.C. 
823(f)(4). A careful look at the testimony and evidence presented at 
the hearing demonstrates that the Respondent has failed to comply with 
both federal and state laws related to controlled substances, and her 
conduct in this

[[Page 29090]]

respect must be considered in regard to her ability to assume the 
responsibilities of a registrant in accordance with the public 
interest.
    The evidence of record establishes that, in 2011, the Respondent 
committed controlled substance-related transgressions in New Mexico 
(New Mexico Misconduct), and, in 2005, was disciplined in Iowa for 
misconduct that occurred in that state (Iowa Misconduct). The New 
Mexico Misconduct is relevant under Factor 4, and the Iowa Misconduct 
is relevant under both Factors 2 and 4.
    The CSA provides that it is ``unlawful for any person knowingly or 
intentionally . . . to acquire or obtain possession of a controlled 
substance by misrepresentation, fraud, forgery, deception, or 
subterfuge.'' 21 U.S.C. 843(a)(3). The evidence presented at the 
hearing regarding the New Mexico Misconduct shows that the Respondent 
violated this provision of the CSA on eleven (11) separate occasions.
    On February 16, 2011 (Dispensing Event 2), the Respondent 
improperly presented the same February 14 controlled substance scrip to 
Walgreens Pharmacy that she had previously presented to Walmart 
Pharmacy Edgewood (Dispensing Event 1) via facsimile. The scrip, which 
was validly authorized by PA Francis,\120\ indicated that the 
prescription was not to be refilled. Gov't Ex. 3, at 1-2; Gov't Ex. 8, 
at 1. The second presentation was made two days after the first, at a 
different pharmacy. There is little question that the Respondent's 
actions were intentional and calculated to procure twice as much 
medication as PA Francis prescribed. The preponderant evidence supports 
the Respondent's fraudulent, deceptive use of the February 14 scrip to 
obtain controlled substances in Dispensing Event 2 through subterfuge. 
See 21 U.S.C. 843(a)(3).
---------------------------------------------------------------------------

    \120\ Tr. 185.
---------------------------------------------------------------------------

    In the same way, the evidence establishes that the Respondent 
presented the same March 11 scrip to acquire controlled substances at 
Walgreens Pharmacy (Dispensing Event 4), Walmart Pharmacy Edgewood 
(Dispensing Event 5), and Walmart Pharmacy Albuquerque (Dispensing 
Event 6) on March 11, 15, and 21, respectively. Even apart from forged 
signatures on the scrip (discussed, infra), the successive presentation 
of these scrips to dupe multiple pharmacies into dispensing controlled 
substances was also done in violation of 21 U.S.C. 843(a)(3).
    The evidence of record also preponderantly establishes that the 
Respondent, on ten occasions (Dispensing Events 3-12),\121\ presented 
scrips that contained the forged signature \122\ of PA Francis to 
multiple pharmacies, and that when she presented these scrips, the 
Respondent was well aware that the signatures were forged. It is clear 
that the Respondent had access to the computer system that generated 
these scrips, and that she, or members of her immediate family, picked 
up the dispensed medications. Tr. 208, 217, 283, 314, 382-85, 725-28, 
826, 901-03. Further, the lengths that the Respondent went to in 
obstructing PIC Alvis's telephonic inquiries to McLeod Medical to 
resolve his (ultimately justified) misgivings about the legitimacy of 
the prescription, demonstrated significant consciousness of guilt on 
the part of the Respondent, as did her request to the Walmart Pharmacy 
Edgewood staff to refrain from submitting the prescription to her 
insurance carrier due to a contrived coverage issue. Tr. 285-88, 268-
69. Additional evidence of knowing culpability can be inferred by the 
Respondent's decision to present the scrips at multiple pharmacies. 
This approach was plainly calculated to reduce the likelihood of 
detection by vigilant pharmacists who would be likely to ask probing 
questions about the frequency of new scrips for the same medication. 
Utilizing multiple pharmacies facilitated the presentation of a single 
scrip to effect multiple dispensing events. Thus, the manner in which 
these scrips (forged and otherwise) were employed to procure controlled 
substances by the Respondent violated 21 U.S.C. 843(a)(3).
---------------------------------------------------------------------------

    \121\ March 1, March 11, March 15, March 21, March 31, April 6, 
July 9, August 4, August 9, September 10.
    \122\ In its brief, the Government argues that its evidence 
establishes that the ``Respondent illegally acquired hydrocodone on 
ten occasions by forging ten prescriptions . . . using PA Francis's 
DEA number.'' ALJ Ex. 59, at 25. At another point in its brief, the 
Government argues that ``the evidence shows that the Respondent 
forged and filled ten hydrocodone prescriptions to herself using PA 
Francis's DEA number.'' Id. at 28. Technically, the prescriptions 
were filled, not by the Respondent, but by hapless pharmacists, 
duped by the Respondent into doing so. To the extent that the 
Respondent argues that no handwriting or forgery evidence is present 
in the record that directly connects her to the actual scrawling of 
Francis's fabricated signature (ALJ Ex. 60, at 11, 15), she is 
correct. While there is ample evidence of record to support the 
proposition that PA Francis's signature was forged on ten scrips, 
and that these forged scrips were presented to multiple pharmacies 
by the Respondent to wrongfully obtain controlled substances, there 
is no evidence that the Respondent, herself, did the actual forging.
---------------------------------------------------------------------------

    The Respondent has also violated New Mexico state law related to 
controlled substances. Under New Mexico state law,

[i]t is unlawful for a person intentionally to possess a controlled 
substance unless the substance was obtained pursuant to a valid 
prescription or order of a practitioner while acting in the course 
of professional practice or except as otherwise authorized by the 
Controlled Substances Act.\123\
---------------------------------------------------------------------------

    \123\ This statute clearly shares the CSA's goal of preventing 
the diversion of controlled substances. See Fred Samimi, M.D., 79 FR 
18698, 18710 (2014) (stating that, to be considered under Factors 2 
and 4, violations of state law must have a sufficient nexus to the 
CSA's goal of preventing the diversion of controlled substances).

N.M. Stat. Ann. Sec.  30-31-23(A).\124\ Here, the evidence demonstrates 
that, on those same eleven occasions, the Respondent (or through family 
members acting on her behalf) obtained possession \125\ of the 
controlled substances dispensed during Dispensing Events 2-12, and did 
so through the use of invalid prescriptions.\126\ Gov't Ex. 5, at 3-12; 
Tr. 826. As discussed, supra, the prescription the Respondent used to 
obtain controlled substances in Dispensing Event 2 was no longer valid 
at the time of presentation because the medication it authorized had 
already been filled in Dispensing Event 1, two days earlier. The scrip 
authorized the dispensing of a fixed quantity of controlled substances, 
not double that amount at different pharmacies. Thus, forged scrips 
were presented on ten occasions, one was improperly presented when it 
was no longer valid, and the credible evidence establishes that all 
were picked up by the

[[Page 29091]]

Respondent or members of her family on her behalf. Tr. 283, 826, 901-
03.
---------------------------------------------------------------------------

    \124\ The CSA contains an almost identical provision as this 
section in New Mexico state law. See 21 U.S.C. Sec.  844(a) (``It 
shall be unlawful for any person knowingly or intentionally to 
possess a controlled substance unless such substance was obtained 
directly, or pursuant to a valid prescription or order, from a 
practitioner, while acting in the course of his professional 
practice. . . .''); see also Tyson D. Quy, M.D., 78 FR 47412, 47412 
n.1 (2013) (sustaining the finding of a violation of 21 U.S.C. Sec.  
844(a) where the respondent obtained controlled substances without a 
valid prescription). The Government, however, did not allege a 
violation of this provision.
    \125\ The Respondent's argument that the record contains no 
evidence that the controlled medications were actually dispensed 
(ALJ Ex. 60, at 9) is illogical and unpersuasive. The Respondent 
admitted that she or her family members picked up her prescriptions 
from the various pharmacies where they had been presented. Tr. 901-
03. Furthermore, in light of her litigation posture that all the 
prescriptions in question were legitimately issued by PA Francis, it 
would have been illogical and implausible for her (or some mystery 
person) to have presented these scrips and then left them unclaimed 
at pharmacies all over the Albuquerque area. There is simply no 
basis in the record (or in reason) to support the Respondent's 
suggestion that an unknown mystery person, for unknown reasons, 
procured signed, discarded scrips written on behalf of the 
Respondent, presented them at various pharmacies, and then, 
unbeknownst to the Respondent, surreptitiously picked them up with a 
photo identification. ALJ Ex. 60, at 11.
    \126\ It is uncontested that the allegations in this case 
involve only prescriptions and not orders.
---------------------------------------------------------------------------

    The controlled substances the Respondent procured under Dispensing 
Events 3-12 were likewise not obtained pursuant to valid prescriptions 
under federal and state law. Under the implementing regulations of the 
CSA, in order for a prescription for controlled substances to be valid, 
it must be ``issued for a legitimate medical purpose by an individual 
practitioner acting in the usual course of his professional practice.'' 
21 C.F.R. 1306.04(a) (emphasis added). As defined by the CSA, a 
``practitioner'' is a ``physician . . . or other person licensed, 
registered, or otherwise permitted, by the United States or the 
jurisdiction in which he practices . . ., to distribute, dispense, [or] 
administer . . . a controlled substance in the course of professional 
practice or research.'' 21 U.S.C. 802(21); see 21 C.F.R. 1306.02 
(referring back to the definitions found in 21 U.S.C. 802). The record 
evidence shows that the prescriptions filled by forged scrips on these 
ten occasions were not authorized by a physician or other person 
licensed to prescribe controlled substances, but by a forger. PA 
Francis credibly denied ever signing or authorizing the prescriptions 
filled at Dispensing Events 3-12. Tr. 205-06, 261. Documents with 
forged signatures are not issued by one with authority to do so and, as 
such, are not valid prescriptions under federal law. 21 C.F.R. 
1306.04(a)
    Neither were the scrips presented in Dispensing Events 3-12 valid 
under state law. In New Mexico, a ``prescription'' is defined as ``an 
order given individually for the person for whom is prescribed a 
controlled substance, either directly from a licensed practitioner or 
the practitioner's agent to the pharmacist . . . or indirectly by means 
of a written order signed by the prescriber.'' N.M. Stat. Ann. Sec.  
30-31-2(S). Once again, the scrips presented to the pharmacies on these 
occasions were not authorized or signed by a ``licensed practitioner,'' 
and, thus, the Respondent did not obtain the controlled substances 
dispensed on Dispensing Events 3-12 through a valid prescription. The 
Respondent's possession of controlled substances violated New Mexico 
state law because such possession was not ``obtained pursuant to a 
valid prescription,'' as defined by federal and state law. N.M. Stat. 
Ann. Sec.  30-31-23(A).
    Additionally, the sheer amount of the controlled substances 
obtained by the Respondent adds significantly to the equation. During 
the 208 days the Respondent was presenting bad prescriptions, she 
received 248-days' worth of medication. The exorbitant quantities of 
controlled substances she was obtaining, where the dates overlapped and 
exceeded even the dosages set forth in the forged scrips, eviscerates 
any rational claim of lack of knowledge.
    Thus, the evidence demonstrates that the Respondent, on eleven 
different occasions, violated both the CSA \127\ and New Mexico state 
law \128\ when she obtained possession of controlled substances through 
Dispensing Events 2-12, and improperly obtained powerful, controlled 
drugs in copious amounts. Consideration of the New Mexico Misconduct 
evidence of record under Factor 4 (compliance with federal and state 
controlled substances laws), militates so powerfully in favor of 
denying her COR application, that this evidence, standing alone is 
sufficient to satisfy the Government's burden of production to 
establish a prima facie case.
---------------------------------------------------------------------------

    \127\ 21 U.S.C. Sec.  843(a)(3).
    \128\ N.M. Stat. Ann. Sec.  30-31-23(A).
---------------------------------------------------------------------------

    The Iowa Misconduct likewise reflects adversely on Factor 4, but 
also on Factor 2. In the Iowa Board Order/Settlement Agreement, the 
Respondent and the Iowa Board agreed that the Respondent 
``inappropriately and repeatedly prescrib[ed] controlled drugs to 
numerous patients in violation of the laws and rules governing the 
practice of medicine'' and that the Respondent violated Iowa's pain 
management rule, Iowa Admin. Code r. 653-13.2 (2013), which, inter 
alia, serves ``to minimize the potential for substance abuse and drug 
diversion,'' id. r. 653-13.2(1).\129\ The agreed-to violations provide 
that the Respondent prescribed and continued to prescribe controlled 
substances to multiple patients in the face of drug-seeking, doctor-
shopping, and drug-abuse indicators, and without appropriately 
documenting these features in the patients' charts. Gov't Ex. 9, at 12-
17.
---------------------------------------------------------------------------

    \129\ The charging document does not allege a violation of a 
specific provision within Iowa's pain management rule.
---------------------------------------------------------------------------

    It is worthy of note that while the Iowa proceedings clearly raise 
issues that are relevant to this determination, the Iowa Board Order/
Settlement Agreement, the Government's arguments to the contrary 
notwithstanding,\130\ has not been extended preclusive effect. Agency 
precedent has acknowledged the Supreme Court's recognition of the 
applicability of the res judicata doctrine in administrative 
proceedings. Christopher Henry Lister, P.A., 75 FR 28068, 28069 (2010) 
(citing Univ. of Tenn. v. Elliot, 478 U.S. 788, 797-98 (1986)) (``When 
an administrative agency is acting in a judicial capacity and resolves 
disputed issues of fact properly before it which the parties have had 
an adequate opportunity to litigate, the courts have not hesitated to 
apply res judicata[.]''). Factual findings and legal conclusions based 
on state law reached by state administrative tribunals are given 
preclusive effect in DEA administrative proceedings under the subset of 
the doctrine known as collateral estoppel (also referred to as ``issue 
preclusion''). Thomas Neuschatz, M.D., 78 FR 76322, 76325-26 (2013); 
Robert L. Dougherty, M.D., 76 FR 16823, 16830 (2011); Gilbert Eugene 
Johnson, M.D., 75 FR 65663, 65666 (2010); see James William Eisenberg, 
M.D., 77 FR 45663, 45663-64 (2012) (taking official notice of findings 
in state medical board censure order with preclusive effect).
---------------------------------------------------------------------------

    \130\ ALJ Ex. 59, at 29.
---------------------------------------------------------------------------

    While the Agency recognizes the preclusive effect of findings and 
state law conclusions resulting from state administrative hearings, it 
has not extended, carte blanche, the same effect to settlement 
agreements (or consent agreements) entered between respondents and 
state agency boards. As discussed, supra, the IBO/SA provided by the 
Government constitutes the ratification of a settlement agreement 
between the Respondent and the Iowa Board. In Ralph J. Chambers, M.D., 
the Agency held that a settlement agreement between the respondent and 
state medical board was not entitled to preclusive effect in the DEA 
proceedings because the settlement agreement said ``nothing about 
whether [the respondent] would be estopped from challenging the 
findings in a subsequent proceeding brought by the Board (or another 
state agency) against him.'' 79 FR 4962, 4970 (2014). While the 
respondent in Chambers had agreed not to seek judicial review of the 
settlement agreement, the Agency held that the Government's failure to 
cite state authority holding that such language was entitled to 
preclude the parties from re-litigating the issues raised in the 
settlement agreement barred the settlement agreement from having any 
preclusive effect. Id. A similar issue arose in David A. Ruben, M.D., 
in which the Agency held that the findings memorialized in two orders 
based on consent agreement between the respondent and state agency 
board were entitled to preclusive effect in the DEA proceedings 
because, in the consent agreements, the respondent (1) manifested an 
intent not to contest the validity of the orders in subsequent

[[Page 29092]]

proceedings before the state board, (2) relinquished his right to 
judicial review of the matters alleged in the orders, and (3) waived 
his right to any further action related to the orders. 78 FR 38363, 
38366 (2013). Because state law allowed for a settlement agreement to 
have preclusive effect if the parties to the agreement had manifested 
such intent, the Agency held that the respondent in Ruben was precluded 
from re-litigating the same findings at the DEA proceedings. Id. at 
38366-67.
    While the complex facts in both Chambers and Ruben do not lend 
themselves to a discernable bright-line rule for when a settlement or 
consent agreement should be given preclusive effect, it is clear that 
Agency precedent dictates that the parties to the agreement must have 
manifested their intent that the findings and conclusions accompanying 
the agreement be non-challengeable and binding upon the parties. 
Chambers, 79 FR at 4970; Ruben, 78 FR at 38366. Also relevant to this 
determination is an analysis of whether state law recognizes the nature 
and wording of the agreement entered into by the parties as creating a 
preclusive effect upon the parties in subsequent litigation. Chambers, 
79 FR at 4970; Ruben, 78 FR at 38366.
    In this case, the settlement agreement memorialized by the IBO/SA 
contains little evidence that the Respondent and the Iowa Board 
intended that the findings and conclusions discussed therein would have 
preclusive effect. While the Respondent agreed to ``voluntarily waive[ 
] any rights to a contested hearing on the allegations,'' \131\ the 
agreement between the parties contains no language prohibiting the 
Respondent from seeking judicial review or establishing a waiver of the 
Respondent's ability to pursue further action related to the 
allegations that formed the basis for the IBO/SA. Moreover, in the 
absence of the manifested intent of the parties that an agreement will 
have preclusive effect, Iowa state law holds that settlement agreements 
are not binding on a party through the doctrine of collateral estoppel 
because the issues in the settlement agreements are not ``actually 
litigated.'' Winnebago Indus., Inc. v. Haverly, 727 NW.2d 567, 572 
(Iowa 2006) (`` `In the case of a judgment entered by confession, 
consent, or default, none of the issues is actually litigated. . . . 
The judgment may be conclusive, however, with respect to one or more 
issues, if the parties have entered an agreement manifesting such an 
intention.' '' (quoting Restatement (Second) of Judgments Sec.  27 cmt. 
e (1982))).
---------------------------------------------------------------------------

    \131\ Gov't Ex. 9, at 6.
---------------------------------------------------------------------------

    Accordingly, on the present record, because the parties to the Iowa 
Board Order/Settlement Agreement did not manifest the intent that the 
issues raised in the IBO/SA would preclude the Respondent from re-
litigating those issues outside of the Iowa Board's jurisdiction, and 
because Iowa state law does not apply the doctrine of collateral 
estoppel to settlement agreements, the findings and conclusions 
contained in the IBO/SA are not binding upon this tribunal. As such, 
the parties in this DEA administrative adjudication were not precluded 
from re-litigating the issues raised in the Iowa Board Order/Settlement 
Agreement, and this adjudication must and does make appropriate 
findings.
    All that said, it is beyond argument that the IBO/SA was prepared 
and submitted to the Iowa Board by the Respondent, and, by the terms of 
the document, constitutes an accepted offer to be disciplined based on 
the allegations set forth in the Iowa Board Charging Document. Gov't 
Ex. 9, at 2 ] 4, 6, ] 14. Thus, by executing the IBO/SA, the Respondent 
admitted multiple serious episodes of controlled substance prescribing 
that were effected in violation of Iowa state law and practice 
standards. Iowa Admin. Code r. 653-13.2.
    The explanatory language supplied by the Respondent in her COR 
application relating to the surrender of her Iowa license was reviewed 
and accepted by the Respondent at her DEA hearing on the merits. Tr. 
936-38. The Respondent accepted the truth of the allegations by: (1) 
executing the Iowa Board Order/Settlement Agreement; (2) supplying an 
(albeit incomplete, and arguably misleading) explanation of the 
incident that contains no factual challenge to the Iowa findings in her 
COR application; \132\ and (3) offering no resistance to official 
notice regarding the Iowa Board's findings and actions. Tr. 625-26, 
978. Accordingly, the facts as alleged in the Iowa Board Charging 
Document and IBO/SA are deemed credible, stand unopposed, and are, thus 
established in this recommended decision.
---------------------------------------------------------------------------

    \132\ Gov't Ex. 2, at 1-2.
---------------------------------------------------------------------------

    Even accepting the (unopposed) truth of the Iowa Board's findings 
through the Respondent's admissions contained therein, neither the 
documents provided by the Government, nor the testimony of any witness, 
assign a date for the occurrences for which the Respondent was 
disciplined by the Board. In her (problematic) COR application 
explanation, the Respondent lists an ``incident date'' of March 15, 
2000,\133\ but the IBO/SA and the IBCD both indicate that she was not 
even licensed in Iowa until April 5, 2000. Gov't Ex. 9, at 1, 8. Thus, 
the ``incident date'' supplied by the Respondent in her COR application 
would have actually preceded her licensure in Iowa and, presumably, the 
Iowa Board's jurisdiction to act. The Iowa Board Charging Document was 
executed on June 2, 2005, and the IBO/SA was signed on November 15, 
2005. Id. at 7, 16. Thus, the only knowable parameters of the 
Respondent's Iowa Misconduct would seem reasonably to fall between her 
April 5, 2000 date of licensure and the June 2, 2005 date upon which 
the Iowa Board issued its charging document, yet the Respondent has 
provided a date that preceded that period, and the Government has 
supplied no position on the subject.\134\ Id. at 1, 8, 16.
---------------------------------------------------------------------------

    \133\ Gov't Ex. 2, at 1.
    \134\ The Government, as the proponent of this evidence, should 
have engaged in efforts to discern the date of the misconduct, but 
the Respondent interposed no objection based upon lack of temporal 
specificity regarding the dates of the Iowa Board case.
---------------------------------------------------------------------------

    Even taking into account that the Iowa Board matter was resolved 
nine years ago, and six years prior to the commencement of the 2011 
misuse of the scrips established in this case, the time is not so long 
as to have significantly attenuated the nature of the Iowa 
Misconduct.\135\ This is particularly so where the New Mexico 
Misconduct that comprises the bulk of the Government's case here 
occurred subsequent to the execution of the IBO/SA. Prescribing to 
multiple patients in the face of known indicia of drug-seeking and 
drug-abuse behavior, with inadequate documentation, below the standard 
set by Iowa in its state laws reflects poorly on both the Respondent's 
compliance with state laws regarding controlled substances (Factor 4) 
as well as her experience as an irresponsible and unlawful prescriber 
of controlled substances (Factor 2), and supports the denial of her COR 
application.
---------------------------------------------------------------------------

    \135\ The Respondent's prehearing motion to exclude 
consideration of this matter based on the time the incidents 
allegedly occurred was denied. ALJ Ex. 43, at 8; ALJ Ex. 45, at 6-7.
---------------------------------------------------------------------------

    Thus, consideration of the record evidence regarding the Iowa 
Misconduct under Factor 2 (experience in dispensing), and the Iowa and 
New Mexico Misconduct under Factor 4 (compliance with controlled 
substances laws), powerfully and persuasively supports the DEA COR 
denial sought by the Government.

[[Page 29093]]

Factor 5: Such Other Conduct Which May Threaten the Public Health and 
Safety

    The fifth statutory public interest factor directs consideration of 
``[s]uch other conduct which may threaten the public health and 
safety.'' 21 U.S.C. 823(f)(5) (emphasis added). Existing Agency 
precedent has long held that this factor encompasses ``conduct which 
creates a probable or possible threat (and not only an actual [threat]) 
. . . to public health and safety.'' Dreszer, 76 FR at 19434 n.3; 
Michael J. Aruta, M.D., 76 FR 19420, 19420 n.3 (2011); Beau Boshers, 
M.D., 76 FR 19401, 19402 n.4 (2011); Jacobo Dreszer, 76 FR 19386, 19386 
n.3 (2011). Agency precedent has generally embraced the principle that 
any conduct that is properly the subject of Factor Five must have a 
nexus to controlled substances and the underlying purposes of the CSA. 
Terese, Inc., 76 FR 46843, 46848 (2011); Tony T. Bui, M.D., 75 FR 
49979, 49989 (2010) (stating 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 44359, 44368 n.27 (2011) (noting that although 
a registrant's non-compliance with the Food, Drug, and Cosmetic Act is 
not relevant under Factor Five, consideration of such conduct may 
properly be considered on the narrow issue of assessing a respondent's 
future compliance with the CSA).
    Similar ``catch-all'' language is employed by Congress in the CSA 
related to the Agency's authorization to regulate controlled substance 
manufacturing and List I chemical distribution, but the language is by 
no means identical. 21 U.S.C. 823(d)(6), (h)(5). Under the language 
utilized by Congress in those provisions, the Agency may consider 
``such other factors as are relevant to and consistent with the public 
health and safety.'' 21 U.S.C. 823(h)(5) (emphasis added). In Holloway 
Distributing, the Agency held this catch-all language to be broader 
than the language directed at practitioners under ``other conduct which 
may threaten the public health and safety'' utilized in 21 U.S.C. 
823(f)(5). 72 FR 42118, 42126 n.16 (2007). Regarding the List I catch-
all language, the Administrator, in Holloway, stated:

    [T]he Government is not required to prove that the 
[r]espondent's conduct poses a threat to public health and safety to 
obtain an adverse finding under factor five. See T. Young, 71 [FR] 
at 60572 n.13. Rather, the statutory text directs the consideration 
of ``such other factors as are relevant to and consistent with the 
public health and safety.'' 21 U.S.C. Sec.  823(h)(5). This standard 
thus grants the Attorney General broader discretion than that which 
applies in the case of other registrants such as practitioners. See 
id. Sec.  823(f)(5) (directing consideration of ``[s]uch other 
conduct which may threaten the public health and safety'').

Id.\136\ Thus, the Agency has recognized that, while the fifth factor 
applicable to List I chemical distributors--21 U.S.C. Sec.  823(h)(5)--
encompasses all ``factors,'' the Factor Five applied to practitioners--
21 U.S.C. 823(f)(5)--considers only ``conduct.'' However, because Sec.  
823(f)(5) only implicates ``such other conduct,'' it necessarily 
follows that conduct considered in Factors 1 through 4 may not be 
considered in Factor Five.
---------------------------------------------------------------------------

    \136\ In Bui, the Agency clarified that ``an adverse finding 
under [Factor Five did not require a] showing that the relevant 
conduct actually constituted a threat to public safety.'' 75 FR at 
49988 n.12.
---------------------------------------------------------------------------

    There is no question that Agency precedent has long held that self-
abuse of controlled substances is a relevant consideration under Factor 
5, even where there is no evidence of malfeasance related to a 
registrant's prescribing authority. Bui, 75 FR at 49989. Even so, on 
the facts elicited here, the Government's argument that the evidence 
sufficiently establishes self-abuse on the part of the Respondent that 
merits consideration under Factor 5 is unpersuasive. ALJ Ex. 59, at 32. 
It is unquestionably true that the Respondent provided a urinalysis 
sample that tested positive for opiates while she worked at McLeod, and 
could not (and still cannot) provide a credible explanation for why she 
was lawfully in possession of a controlled substance. However, PA 
Francis testified that, upon examining the Respondent and reviewing her 
x-rays, the Respondent had objective evidence of injuries consistent 
with the history she presented during the appointment, and that the 
(only legitimate) hydrocodone prescription Francis issued to her was 
appropriate under the circumstances. Tr. 181-85. Under the Agency's 
precedent, ``self-abuse'' under Factor 5 contemplates ``ingest[ion of] 
controlled substances for no legitimate medical reason.'' Michael W. 
Dietz, D.D.S, 66 FR 52937, 52938 (2001). The present record leaves 
little doubt that the Respondent procured controlled substances without 
legitimate prescriptions and ingested at least some of the 
medications,\137\ and although there may well have been a recreational 
component to the Respondent's drug use, the only evidence received on 
the issue supports the Respondent's claim that she had an objective 
medical basis that could arguably have supported the prescribing of 
controlled substances for pain. To be clear, the Respondent was in 
violation of the law, but, on this narrow issue, the record does not 
support the proposition that ingesting the medication that resulted in 
the positive urinalysis result at McLeod Medical was self-abuse.\138\
---------------------------------------------------------------------------

    \137\ As discussed, supra, although not charged by the 
Government, the possession of these controlled substances to ingest 
them was effected in violation of 21 U.S.C. 844(a); see Quy, 78 FR 
at 47412 n.1.
    \138\ As discussed, supra, the Respondent utilized illegitimate, 
forged prescriptions to accumulate quantities of controlled 
substances that far exceeded even the dosage directions on the false 
scrips. This aspect of the case is made even more chilling by the 
Respondent's argument that she ``was regularly tested during short 
intervals and never tested positive for the opiates she allegedly 
was forging prescriptions to obtain in large quantities.'' ALJ Ex. 
60, at 10. On this record, it is simply impossible to know whether 
she was ingesting all or some of the medications she was procuring. 
What is uncontested, however, is that she had some objective 
evidence of a prior neck injury.
---------------------------------------------------------------------------

    That is not to say that the record evidence does not impact Factor 
5. The preponderant evidence of record establishes that, regarding the 
New Mexico Misconduct, the Respondent engaged in significant, 
intentional efforts to circumvent the efforts of PIC Alvis at the 
Walmart Pharmacy Edgewood in his attempt to execute his corresponding 
responsibility under the DEA regulations. 21 C.F.R. 1306.04(a). At the 
time she presented a forged controlled substance prescription, the 
Respondent requested that staff members at the Walmart Pharmacy 
Edgewood refrain from processing the prescription through her health 
insurance company, based on her false representation that she was 
having issues with her health insurance company. Tr. 268-69. During her 
testimony, the Respondent conceded that she was insured by McLeod 
Medical and was having no such issues. Tr. 801-02, 946. To the extent 
that her testimony conflicts with the accounts presented in that regard 
by both PIC Alvis and PA Francis, her version is not credited.
    When a Walmart Pharmacy Edgewood staff member inadvertently 
processed the prescription through the Respondent's insurance and the 
claim was declined because the same medication had been dispensed to 
the Respondent just days ago, it became apparent that her request to 
refrain from involving her health insurance company was borne of a 
desire to remain below the radar of the insurance company's

[[Page 29094]]

monitoring process. On these facts, it is clear that the Respondent's 
direction to PIC Alvis was a ruse designed to evade the scrutiny of her 
insurance company and the attention that a rejection based on an early 
refill would draw to her actions.
    PIC Alvis had his staff make inquiry of the insurance company and 
PA Francis, the purported prescriber. Tr. 272, 281-82. After PIC Alvis 
(appropriately) declined to dispense medication to the Respondent's 
daughters on the presented scrip, the Respondent then attempted to 
mislead PIC Alvis by telephoning him and posturing that the whole 
affair was a misunderstanding. Tr. 284-85. Compounding the negative 
impact of the Respondent's plan to avoid detection, when McLeod Medical 
staff inquired of Walmart Pharmacy Edgewood as to whether they were 
still seeking to speak to PA Francis, the Respondent commandeered the 
call and declared that, since she had spoken with Alvis, the matter was 
closed. Tr. 285, 288-89.
    Admirably, PIC Alvis persevered in his regulatory duty to resolve 
the anomaly with an appropriate level of care.\139\ Tr. 288-89, 291-92. 
After consulting with a pharmacist at May Pharmacy who remembered the 
details regarding the filling of the prescription, he reached out to a 
third pharmacist to call PA Francis. Tr. 292-98. In effect, the actions 
of the Respondent (who now seeks to be a DEA registrant) made it 
necessary for PIC Alvis to resort to a covert action by an intermediary 
to have his (ultimately well-founded) professional reservations 
addressed.
---------------------------------------------------------------------------

    \139\ 21 C.F.R. 1306.04(a).
---------------------------------------------------------------------------

    Under the regulations, PIC Alvis, as the dispensing pharmacist, 
bears a ``corresponding responsibility'' to ensure that controlled 
substances are dispensed only on ``effective'' prescriptions. 21 C.F.R. 
Sec.  1306.04(a). The regulations provide that ``to be effective [a 
controlled substance prescription] must be issued for a legitimate 
medical purpose by an individual practitioner acting in the usual 
course of his professional practice.'' Id. Under this language, a 
pharmacist has a duty ``to fill only those prescriptions that conform 
in all respects with the requirements of the [CSA] and DEA regulations. 
. . .'' Electronic Prescriptions for Controlled Substances, 75 FR 
16236, 16266 (Mar. 31, 2010). In short, a pharmacist has a 
``corresponding responsibility under Federal law'' to dispense only 
lawful prescriptions. Liddy's Pharmacy, L.L.C., 76 FR 48887, 48895 
(2011). Settled Agency precedent has interpreted this corresponding 
responsibility as prohibiting the filling of a prescription where the 
pharmacist or pharmacy ``knows or has reason to know'' that the 
prescription is invalid. E. Main St. Pharmacy, 75 FR 66149, 66163 
(2010); Bob's Pharmacy & Diabetic Supplies, 74 FR 19599, 19601 (2009) 
(citing Medicine Shoppe, 73 FR at 381); see also United Prescription 
Servs., 72 FR at 50407-08 (finding a violation of corresponding 
responsibility where the pharmacy ``had ample reason to know'' that the 
practitioner was not acting in the usual course of professional 
practice). Once PIC Alvis, based on his professional training and 
experience, had identified a red flag that indicates that a controlled 
substance scrip was potentially illegal, he was prohibited under the 
law from dispensing until the red flag had been conclusively resolved. 
Holiday CVS, 77 FR 62316, 62341 (2012). PIC Alvis did not have the 
luxury of looking the other way,\140\ but was duty-bound to take 
reasonable steps to investigate the issues raised by the Respondent's 
prescriptions.
---------------------------------------------------------------------------

    \140\ The Agency has never been, and cannot be, persuaded by a 
policy of ``see no evil, hear no evil.'' Carlos Gonzalez, M.D., 76 
FR 63118, 63142 (2011). Even in a criminal context regarding 
prescriptions illegitimately issued, the courts have held that a 
factfinder ``may consider willful blindness as a basis for 
knowledge.'' United States v. Katz, 445 F.3d 1023, 1031 (8th Cir. 
2006).
---------------------------------------------------------------------------

    Each DEA COR holder bears a responsibility to assure the integrity 
of the ``closed system'' \141\ designed by Congress to ensure 
controlled substance accountability. Requiring PIC Alvis to resort to 
subterfuge to investigate the suspicious prescription for controlled 
substances (after intentionally misleading him by inventing an 
insurance coverage issue) is completely antithetical to the obligations 
and privileges the Respondent seeks to once again enjoy as a DEA 
registrant. PIC Alvis was performing his duty, and the Respondent, a 
prospective registrant with a pending COR application,\142\ was 
intentionally frustrating his efforts. By intentionally misleading and 
then intercepting PIC Alvis's phone inquiry to PA Francis, the 
Respondent knowingly attempted to preclude Alvis from executing the due 
diligence obligation he bears as a dispensing pharmacist under federal 
law. Preventing a pharmacist from discharging his lawful duty to 
resolve a prescription anomaly substantially increases the risk of 
controlled substances being dispensed outside the boundaries of the 
closed regulatory system. The Respondent's attempts to thwart Alvis's 
efforts to inquire behind the circumstances surrounding the 
Respondent's scheme to procure controlled substances through the misuse 
of scrips fits squarely within the bounds of ``other \143\ conduct 
which may threaten the public health and safety.'' 21 U.S.C. 823(f)(5); 
see Jerry Neil Rand, M.D., 61 FR 28895, 28897 (1996) (adding false 
information to medical charts to conceal true nature of prescribing 
practices is conduct that adversely reflects upon Factor 5); Nelson A. 
Smith, M.D., 58 FR 65403, 65404 (1993) (employing strategies to avoid 
detection of improper prescribing, such as falsifying medical chart 
information and recommending specific pharmacies to patients to avoid 
detection, reflects adversely on Factor 5). This is a case of a former/
prospective DEA registrant in the system attempting to compromise 
another DEA registrant who was doing his job of guarding against 
diversion. In light of the fact that the Respondent was clearly 
utilizing her knowledge of the system as a former DEA registrant and 
her access to McLeod Medical phone lines as an employee there, coupled 
with how these actions constitute a calculated and abject betrayal of 
the very obligations she seeks to once again enjoy as a registrant, the 
New Mexico Misconduct evidence considered under this factor militates 
powerfully and persuasively, even standing alone, in favor of the 
Government's opposition to the Respondent's application for a COR.
---------------------------------------------------------------------------

    \141\ Gonzales, 545 U.S. at 13.
    \142\ The New Mexico Misconduct took place after the Respondent 
submitted her COR application and while its adjudication was 
pending. Stip. 3; Gov't Ex. 1.
    \143\ Since this conduct was designed to cover the Respondent's 
method for obtaining controlled substances, not specifically to 
obtain more, it is not covered by Factor 4 or any other of the 
public interest factors.
---------------------------------------------------------------------------

Recommendation

    In this case, balancing the relative merits of the evidence under 
the public interest factors, the Government has satisfied its prima 
facie case for denial of the Respondent's COR application. In Iowa, the 
Respondent repeatedly prescribed inappropriate controlled substances to 
multiple patients in violation of Iowa Law. In New Mexico, the 
Respondent presented a controlled substance scrip to multiple 
pharmacies to procure double the amount of controlled substances that 
the prescriber (PA Francis) intended to prescribe, presented many other 
controlled substance scrips that she knew or had reason to know were 
forged, even presenting one of those forged scrips three times to three 
different pharmacies, and intentionally impeded

[[Page 29095]]

a pharmacist and his staff from executing his duty to resolve a 
prescribing anomaly. There is, thus, no question that, under Factors 2, 
4, and 5, the preponderant evidence of record satisfies the 
Government's burden to make out a prima facie case for denial of the 
Respondent's application.
    ``[T]o rebut the Government's prima facie case, [the Respondent is] 
required not only to accept responsibility for [the established] 
misconduct, but also to demonstrate what corrective measures [have 
been] undertaken to prevent the re-occurrence of similar acts.'' 
Hassman, 75 FR at 8236; see Hoxie, 419 F.3d at 483; Lynch, 75 FR at 
78754 (holding that a respondent's attempts to minimize misconduct 
undermined acceptance of responsibility); Mathew, 75 FR at 66140, 
66145, 66148; Aycock, 74 FR at 17543; Abbadessa, 74 FR at 10078; 
Krishna-Iyer, 74 FR at 463; Medicine Shoppe, 73 FR at 387. The 
acceptance of responsibility is a condition precedent for the 
Respondent to prevail once the Government has established its prima 
facie case. Mathew, 75 FR at 66148. This feature of the Agency's 
interpretation of its statutory mandate on the exercise of its 
discretionary function under the CSA has been sustained on review. 
MacKay, 664 F.3d at 822. In determining whether and to what extent a 
sanction, such as revocation of a license or denial of an application, 
is appropriate, consideration must be given to both the egregiousness 
of the offenses established by the Government's evidence and the 
Agency's interest in both specific and general deterrence. Ruben, 78 FR 
at 38364, 38385.
    On the present record, the Respondent has neither accepted 
responsibility at any level, nor demonstrated persuasive remedial 
steps. Notwithstanding the strength of the evidence against her, the 
Respondent has persisted in steadfastly denying the veracity of the 
Government's New Mexico Misconduct charges regarding the presentation 
of any multiple-presented and/or forged scrips, as well as the 
deliberate steps she took in that state to undermine PIC Alvis's 
conscientious efforts to execute his corresponding responsibility as a 
DEA registrant pharmacist by intercepting his telephonic efforts to 
consult with PA Francis. Regarding the Iowa Misconduct, as discussed in 
more detail, supra, after interposing an incomplete and misleading 
rendition of events on her COR application, the Respondent did not 
challenge the events as portrayed in the IBO/SA, but neither did she 
discuss a single factual detail of the violations she was disciplined 
for.
    On the issue of remedial steps, while the Respondent did testify 
that, after the New Mexico Misconduct, she continued her participation 
in urine drug screening for a relatively brief time after she was 
terminated from McLeod Medical,\144\ and that, following the Iowa 
Misconduct, she took a class on the subject of the prescribing of pain 
medications,\145\ neither step rises to any convincing of a truly 
remedial step at any persuasive level. By her own testimony, the urine 
drug screens were largely (albeit not exclusively) motivated by her 
desire to continue working for McLeod Medical, and thereafter to clear 
her name \146\ (the opposite of accepting responsibility). Furthermore, 
the test results were marked with numerous unexplained misses and 
reschedules for urinalysis appointments that were designed to be 
administered at random. Tr. 860-73. The class the Respondent completed 
on pain management is a laudable step, but is significantly undermined 
by the fact that the New Mexico misconduct commenced well after the 
course was completed--hardly a convincing testimonial to the efficacy 
of this particular remedial measure. In any event, even if the 
propounded remedial steps were afforded some level of enhanced gravity, 
they are unavailing on the present record in the absence of an 
acceptance of responsibility. Under the Agency's precedent, remedial 
steps and acceptance of responsibility can only rebut the Government's 
prima facie case when both are present in the record. See Samimi, 79 FR 
at 18714 (holding that expressions of remorse are not persuasive in the 
absence of remedial steps). The Agency has held that ``[b]oth 
conditions are essential requirements for rebutting the Government's 
prima facie showing that granting an application or continuing an 
existing registration would be consistent with the public interest.'' 
Hassman, 75 FR at 8236 (internal quotation marks and citation omitted). 
The Respondent's reliance on Jeffrey Martin Ford, D.D.S., 68 FR 10750 
(2003), is misplaced. In Ford, the Agency granted a restricted 
registration upon a demonstration that ten-year-old drug use, which was 
admitted by the Respondent,\147\ had been attenuated by time and 
treated with a formal drug rehabilitation program and years of clean 
urinalysis testing. Id. at 10750-53. The Respondent in these 
proceedings has never admitted to abusing controlled substances and has 
never participated in drug rehabilitation.\148\
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    \144\ Tr. 843, 882.
    \145\ Tr. 769; Gov't Ex. 2, at 2.
    \146\ Tr. 844, 913.
    \147\ The respondent in Ford complained that a police traffic 
stop that ultimately resulted in a criminal conviction was effected 
without the requisite level of probable cause, but did not deny that 
he had abused controlled substances. Ford, 68 FR at 10751, 10753.
    \148\ The Respondent testified that she was evaluated by MTP and 
never found to have a substance abuse problem. Tr. 917. This is 
hardly the same as successful completion of a drug rehabilitation 
program.
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    In evaluating the appropriate sanction, DEA precedent requires 
consideration of the egregiousness of the established misconduct and 
the Agency's need to deter similar misconduct on the part of other 
registrants. Ruben, 78 FR at 38385-86. The New Mexico Misconduct 
evidence in this case reveals that the Respondent presented a scrip 
issued for a single controlled substance to procure multiple 
quantities, utilized multiple scrips that she knew or had reason to 
know were forged to procure more controlled substances, deliberately 
obstructed PIC Alvis's attempts to investigate (ultimately well-
founded) red flags of diversion, and has expressed not the slightest 
level of remorse regarding any of her actions. There is a deliberative, 
calculating quality about the Respondent's actions that elevate the 
already egregious nature of the accomplished intentional diversion. 
These are actions that strike at the very heart of the responsibilities 
entrusted to a DEA registrant and mortally undermine any argument that 
she could be entrusted with a COR. On the issue of deterrence, it need 
not be overstated that granting her application under these 
circumstances would send the message to the regulated community (and 
the Respondent), in the most unequivocal terms, that there is virtually 
no level of the betrayal of registrant responsibilities that will 
result in significant consequences.
    The Iowa misconduct also militates in favor of denying her 
application. The Respondent ``inappropriately and repeatedly 
prescribe[ed] controlled drugs in violation of the laws and rules 
governing the practice of medicine [and] engag[ed] in unprofessional 
conduct.'' Gov't Ex. 9, at 2. Even by the terms of the Iowa Board 
Order/Settlement agreement, the Respondent's controlled substance 
transgressions extended to multiple patients, and, in these 
proceedings, the Respondent neither refuted the factual basis of the 
conduct nor accepted any level of responsibility for them. Indeed, in 
her COR application, the Respondent's truncated explanation references 
only a single ``patient,'' notes that ``no investigation [by the Iowa 
Board] was needed,'' and

[[Page 29096]]

incorrectly represents that the only ``incident result'' was that she 
``voluntarily took [a continuing medical education] course on 
prescribing controlled substances from Vanderbilt University.'' Gov't 
Ex. 2, at 1-2. The Respondent's explanation omits any reference to the 
multiple incidents where she ``repeatedly'' prescribed controlled 
substances to ``numerous patients,'' that she was assessed a $2,500.00 
civil penalty, or that she received a five-year period of license 
probation with significant limitations, and reporting, monitoring, and 
notice requirements imposed as conditions of her probation. Gov't Ex. 
9, at 2-6. Even beyond the issue that the Respondent did not accept 
responsibility for these actions, as discussed, supra, the 
``explanation'' she included with her application lacked candor.\149\
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    \149\ See George R. Smith, M.D., 78 FR 44972, 44979-80 (2013); 
Glenn D. Krieger, M.D., 76 FR 20020, 20024 (2011); David A. Hoxie, 
M.D., 69 FR 51477, 51479 (2004); Maxicare Pharmacy, 61 FR 27368, 
27369 (1996).
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    Based on the present record, this applicant simply cannot be 
entrusted by DEA with a registration, and, for that reason, it is 
recommended that her application be DENIED.

Dated: June 3, 2014.

John J. Mulrooney, II,

Chief Administrative Law Judge.

[FR Doc. 2015-12135 Filed 5-19-15; 8:45 am]
BILLING CODE 4410-09-P