[Federal Register Volume 83, Number 161 (Monday, August 20, 2018)]
[Notices]
[Pages 42144-42163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17889]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Houston Maintenance Clinic; Decision and Order

    On September 30, 2016, Administrative Law Judge Charles Wm. Dorman 
(hereinafter, ALJ) issued Recommended Rulings, Findings of Fact, 
Conclusions of Law, and Decision (hereinafter, R.D.). Only Houston 
Maintenance Clinic (hereinafter, Respondent) filed exceptions 
(hereinafter, Resp. Exceptions), and its filing was timely. Having 
reviewed the entire record, including Resp. Exceptions, and modified 
the ALJ's R.D., I adopt the modified R.D. and find that none of Resp. 
Exceptions has merit.

Respondent's First Exception

    Respondent's first exception states that R.D. ``Finding of Fact 40 
should be amended to include the first sentence in . . . [Respondent's 
owner's] letter, GE 27[,] that states as follows[,] `The facility has 
kept a systematic ongoing accurate daily dispensing record as required 
by title 21 C.F.R. 1304.03.' '' \1\ Resp. Exceptions, at 1. The support 
Respondent provided for this exception is that, ``The daily dosing 
records . . . are required and these were kept without disruption.'' 
Id.
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    \1\ Finding of Fact 40 and, presumably, Respondent's first 
exception concern the 2006 inspection.
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    First, R.D. Finding of Fact 30, citing GE-27, already states that, 
``Around the time of the [2006] inspection, . . . [Respondent] kept 
ongoing, systematic daily dispensing records'' [footnote omitted]. 
Thus, much of the content of the sentence that Respondent's first 
exception proposes is already found in Finding of Fact 30. Only the 
assertions that Respondent ``has kept . . .

[[Page 42145]]

accurate'' daily dispensing records ``as required by title 21 C.F.R. 
1304.03'' do not appear in Finding of Fact 30. Respondent's first 
exception does not mention Finding of Fact 30 and does not explain why 
it reiterates statements found in Finding of Fact 30.
    Second, the Agency's regulation concerning exceptions requires that 
supporting reasons, specific citations to the evidence in the record, 
and applicable authorities be included with exceptions. The regulation 
states that, ``The party shall include a statement of supporting 
reasons for such exceptions, together with evidence of record 
(including specific and complete citations of the pages of the 
transcript and exhibits) and citations of the authorities relied 
upon.'' 21 CFR 1316.66(a) (1979).
    Respondent's first exception does not comply with the Agency's 
regulation because it does not ``include . . . evidence of record 
(including specific and complete citations of the pages of the 
transcript and exhibits).'' Id. Instead, it simply asserts that ``daily 
dosing records . . . were kept without disruption.'' Resp. Exceptions, 
at 1. It does not provide support from evidence in the record that 
Respondent ``has kept . . . accurate'' daily dispensing records ``as 
required by title 21 CFR 1304.03.'' Thus, I find that Respondent's 
first exception does not comply with the Agency's regulation. 21 CFR 
1316.66(a) (1979).
    Third, the sentence that Respondent proposes for addition to the 
R.D.'s 40th Finding of Fact is taken from Respondent's written response 
(GE-27) to the Drug Enforcement Administration (hereinafter, DEA or 
Government) Letter of Admonition (GE-26) sent after the 2006 
inspection. The 2006 inspection is addressed in subparagraph 2.c. of 
the Order to Show Cause (hereinafter, OSC). In pertinent part, the OSC 
alleges that Respondent failed ``to maintain and keep accurate records 
(daily dispensing logs) for controlled substances.'' OSC, at 2. I am 
not sustaining this OSC allegation due to insufficient evidence in the 
record: ``[T]he Government did not enter any evidence specifically 
showing that . . . [Respondent's] daily dispensing records were 
inadequate at the time of the 2006 inspection.'' \2\ R.D., at 39. 
Respondent's first exception does not mention or acknowledge that the 
ALJ recommended against sustaining this OSC allegation. Respondent does 
not explain why it proposes an exception concerning an allegation that 
the ALJ recommended against sustaining.
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    \2\ There is evidence in the record that, ``up until the time of 
the 2006 inspection,'' Respondent ``kept meticulous daily dispensing 
records.'' R.D., at 39.
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    Fourth, it does not follow from the Government's lack of proof 
concerning the inadequacy of Respondent's daily dispensing records at 
the time of the 2006 inspection that Respondent actually kept daily 
dispensing records that were accurate and in compliance with Agency 
regulations. As already discussed, Respondent's first exception does 
not cite to evidence in the record that provides a basis for me to find 
that Respondent did keep daily dispending records that were accurate 
and in compliance with Agency regulations at the time of the 2006 
inspection.
    For all of the above reasons, I reject Respondent's first 
exception.

Respondent's Second Exception

    Respondent's second exception states that R.D. ``Finding of Fact 87 
should be amended to include the fact that the investigators' variance 
computations were incorrect by at least 160,000 mgs in the methadone 
diskettes.'' \3\ Resp. Exceptions, at 1. Respondent cites ``Tr. 513'' 
to support this exception.
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    \3\ Finding of Fact 87 concerns the 2014 inspection.
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    First, Respondent's second exception does not comply with the 
Agency's exception regulation because it does not ``include a statement 
of supporting reasons.'' 21 CFR 1316.66(a) (1979). Instead, it simply 
advises that ``Respondent believes'' that ``Finding of Fact 87 should 
be amended.'' \4\ Resp. Exceptions, at 1. I find that Respondent's 
second exception also does not comply with the applicable Agency 
regulation. 21 CFR 1316.66(a) (1979).
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    \4\ It does cite to page 513 of the hearing transcript, but it 
does not provide a pinpoint citation to what it considers to be the 
relevant material on that page.
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    Second, the only support Respondent provides for its stated 
``belief'' that the 87th Finding of Fact ``should be amended'' is its 
citation to page 513 of the hearing transcript. Respondent does not, 
however, specify the particular portion of page 513 that is relevant or 
discuss why that material supports its second exception.
    Hearing transcript page 513 concerns the cross-examination by 
Respondent's counsel of one of the DEA Diversion Investigators 
(hereinafter, DI) assigned to the more recent inspections of 
Respondent. On lines 18 through 24, Respondent's counsel elicits 
testimony from the DI that ``[i]t looks like'' there ``may have been an 
error in . . . [the] spreadsheet'' of ``160,000 milligrams of 
methadone.'' Tr. 513. This testimony appears either to refer to page 2 
of GE-9, where there is a blank space in the ``Total Dosage Units 
Received'' column for ``Methadone'' received on June 24, 2014, or to 
page 1 of GE-9.\5\ I see no reference on page 513 to ``variance 
computations,'' let alone to variance computations being ``incorrect by 
at least 160,000 mgs in the methadone diskettes'' as Respondent's 
second exception asserts. Thus, the hearing transcript page cited in 
Respondent's second exception is not evidentiary support for 
Respondent's proposed amendment to Finding of Fact 87.
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    \5\ Although not specifically addressed on page 513, other 
portions of the hearing transcript indicate that the number for the 
blank space on page 2 of GE-9 in the ``Total Dosage Units Received'' 
column for ``Methadone'' received on June 24, 2014 is the product of 
the ``Quantity Received (Pkg),'' (40), and the ``Package Size,'' 
(4,000).
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    Third, Respondent's second exception concerns Respondent's 
``belief'' that 1,200,050 dosage units, the amount of variance in its 
methadone diskettes calculated by the Government during the 2014 
inspection, is not accurate. Respondent does not, however, point to any 
evidence in the record stating the correct amount of variance. Even 
more significantly, though, Respondent's second exception clearly 
acknowledges that Respondent's controlled substance inventories 
included a variance in its methadone diskette inventory for the 2014 
inspection time period.
    I am sustaining the OSC allegation that the 2014 inspection found 
variances in Respondent's controlled substance inventories of methadone 
diskettes, liquid methadone, buprenorphine 2 mg tablets, and 
buprenorphine 8 mg tablets. R.D., at 45. As Respondent asserts that the 
Government's variance computations were incorrect ``by at least 160,000 
mgs,'' it is acknowledging the existence of variances. That 
acknowledgement supports my conclusion, concerning the 2014 inspection, 
that ``Respondent failed to maintain complete and accurate records of 
controlled substances received, sold, and delivered, and that there was 
a variance in . . . [Respondent's] controlled substance inventory.'' 
R.D., at 45. I calculated the variance in Respondent's methadone 
diskette inventory based on figures that account for the apparent 
160,000 mg math error. Although the recalculated variance is smaller 
than the figure on the first page of GE-9, it does not change my 
findings concerning the 2014 inspection or my decision to revoke.
    For all of the above reasons, I reject Respondent's second 
exception.

[[Page 42146]]

Order

    Pursuant to 28 CFR 0.100(b) (2018) and the authority thus vested in 
me by 21 U.S.C. 824(a) (Westlaw through Pub. L. No. 115-223) in 
conjunction with 21 U.S.C. 823(g)(1) (Westlaw through Pub. L. No. 115-
223), I order that DEA Certificate of Registration No. RH0208567 issued 
to Houston Maintenance Clinic be, and it hereby is, revoked. I further 
order that any pending application of Houston Maintenance Clinic for 
renewal or modification of its registration be, and it hereby is, 
denied. This Order is effective September 19, 2018.

    Dated: August 8, 2018.
Uttam Dhillon,
Acting Administrator.
Paul A. Dean, Esq., for the Government
Andre D'Souza, Esq., for the Respondent

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

    Charles Wm. Dorman, Administrative Law Judge. On September 10, 
2015, the Drug Enforcement Administration (``DEA'' or ``Government'') 
served Houston Maintenance Clinic (``Respondent'' or ``HMC'') with an 
Order to Show Cause (``OSC'') seeking to revoke the Respondent's DEA 
Certificate of Registration (``COR''), Number RH0208567. Administrative 
Law Judge Exhibits (``ALJ-'') 1-2. In response, the Respondent 
requested a hearing before an Administrative Law Judge. ALJ-3. That 
hearing was held in Houston, Texas on June 13 through 16, 2016. The 
issue currently before the Administrator is whether the DEA should 
revoke the Respondent's COR, pursuant to 21 U.S.C. 824(a), and deny any 
pending applications for renewal or modification of its registration, 
pursuant to 21 U.S.C. 823(g)(1). The following recommendations are 
based on my consideration of the entire administrative record, 
including all of the testimony, admitted exhibits, and the oral and 
written arguments of counsel.

ALLEGATIONS

    1. On April 17, 1997, the DEA discovered that the HMC failed to 
record the amount of controlled substances received, failed to keep DEA 
222 Order Forms (``222 Forms''), and failed to properly maintain daily 
dispensing records, in violation of 21 C.F.R. 1304.03, 1304.04, 
1304.21, 1304.22, and 1304.24.1.\6\ ALJ-1, at 1-2. On that date, the 
DEA found variances in the HMC's controlled substance inventory. ALJ-1, 
at 2. Subsequently, the HMC received a letter of admonition detailing 
its violations. ALJ-1, at 2.
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    \6\ As the Government notes in its Post-Hearing Brief, ALJ-27, 
the code sections cited in the OSC are to the current version of the 
C.F.R., rather than the version in effect at the time of the alleged 
violations. The substance of the code remains the same. For the sake 
of clarity and simplicity, the current version of the C.F.R. is 
cited throughout this Recommended Decision.
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    2. On December 6, 1999, the DEA discovered that the HMC failed to 
maintain complete and accurate records of Schedule II controlled 
substances received and dispensed, in violation of 21 U.S.C. 827(a)(3) 
and 21 C.F.R. 1304.21(a). ALJ-1, at 2. On that date, the DEA found 
variances in the HMC's controlled substance inventory. ALJ-1, at 2. 
Subsequently, the HMC entered a Memorandum of Understanding, 
acknowledging its violations. ALJ-1, at 2.
    3. On September 8 and 11, 2006, the DEA discovered that the HMC 
failed to keep and maintain daily dispensing logs of controlled 
substances, in violation of 21 C.F.R. 1304.21(a). ALJ-1, at 2. On that 
date, the DEA found variances in the HMC's controlled substance 
inventory. ALJ-1, at 2. Subsequently, the HMC received a letter of 
admonition detailing its violations. ALJ-1, at 2.
    4. On October 11 and 13, 2011, the DEA discovered that the HMC 
failed to provide records in a timely manner, failed to maintain 
complete and accurate controlled substance receipt records, failed to 
conduct a biennial inventory, failed to preserve 222 Forms for two 
years, improperly allowed an unauthorized person to sign 222 Forms, 
failed to execute a power of attorney to allow an alternate person to 
sign 222 Forms, and failed to completely and accurately complete daily 
dispensing logs, in violation of 21 C.F.R. 1304.04(f)(l)(2), 1304.04, 
1304.11(a), 1305.04, 1305.17(a), 1305.17(c), 1305.05, and 
1305.24(a).\7\ ALJ-1, at 2. The HMC also failed to maintain adequate 
physical security of controlled substances. ALJ-1, at 2. Further, the 
DEA was unable to conduct an audit during the inspection because of the 
HMC's recordkeeping deficiencies. ALJ-1, at 2. On April 3, 2013, the 
HMC entered a settlement agreement with the United States based on 
these violations. ALJ-1, at 2. By the terms of the settlement 
agreement, the HMC agreed to pay a civil monetary penalty, but denied 
culpability or wrongdoing. ALJ-1, at 2.
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    \7\ 21 C.F.R. 1305.24(a) discusses maintenance of ordering 
records using an electronic central processing system. The facts of 
this case do not relate to any alleged violations dealing with 
ordering records maintained on an electronic central processing 
system. Therefore, the Government's allegation that the Respondent's 
conduct on October 11 and 13, 2011, and October 14, 2014, violated 
21 C.F.R. 1305.24(a) is NOT SUSTAINED.
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    5. On October 14, 2014, the DEA discovered that the HMC failed to: 
maintain complete and accurate records of each controlled substance 
received, sold, and delivered; conduct a biennial inventory and an 
inventory of buprenorphine; preserve 222 Forms; indicate the date of 
receipt of 222 Forms; execute a power of attorney authorizing an 
alternate person to sign 222 Forms; and complete accurate daily 
dispensing logs, in violation of 21 C.F.R. 1304.21(a), 1304.11(c), 
1304.11(b), 1305.17(a), 1305.13(e), 1305.05, and 1304.24(a). ALJ-1, at 
3. On that date, the DEA found variances in the HMC's controlled 
substance inventory. ALJ-1, at 3.

STIPULATIONS OF FACT

    The Government and the Respondent stipulated to the following 
facts:
    1. Respondent is registered with the DEA as a narcotic treatment 
program in Schedules II and III under DEA Registration RH0208567 at 
4608 Main Street, Houston, Texas 77002.
    2. DEA Registration Number RH0208567 expires by its terms on 
October 31, 2016.

WITNESSES

    The Government presented its case-in-chief through the testimony of 
six witnesses. First, the Government called a DEA Unit Chief (``Unit 
Chief''). Tr. 27-84. The Unit Chief previously worked in the DEA's 
Houston Division Office for approximately eight years. Tr. 28. Along 
with two other DEA investigators, the Unit Chief participated in the 
DEA's inspection of the HMC in 1999. Tr. 28. At that time, the Unit 
Chief was a trainee, and the 1999 inspection was one of the first 
methadone clinic inspections in which she had participated. Tr. 28, 31. 
The Unit Chief assisted with the 1999 inspection by counting the HMC's 
on-hand inventory and by helping with the controlled substances audit. 
Tr. 29, 38-39. The Unit Chief also recalled meeting with Dr. Ozumba 
during that inspection, but was unsure if anyone else was present 
during that meeting. Tr. 29-30. The Unit Chief added up purchase 
records, dispensing records, and the closing inventory for the audit's 
computation chart, Government's Exhibit (``GE-'') 30. Tr. 80-82. 
Through the Unit Chief's testimony, the Government authenticated and 
successfully offered into evidence GE-28-30 and 32. See Tr. 27-84. I 
find all of these exhibits to be

[[Page 42147]]

accurate, authentic, and meriting credibility.
    While I find the Unit Chief to be a generally credible witness, 
several key factors detract from her overall credibility. First, at the 
time of the 1999 inspection, the Unit Chief was a trainee, who had not 
yet attended the DEA academy. Tr. 28. Second, during her testimony, I 
sensed that she was testifying based upon her experience of how DEA 
conducts inspections, not on her specific recollection of what happened 
during the inspection in 1999. I even addressed that concern on the 
record. Tr. 40-41, 81. Third, she testified that Dr. Ozumba was present 
during the inspection, but she was not sure if anyone else representing 
the Respondent was there. Tr. 29-30. She recalls Dr. Ozumba, in part, 
because he had a ``very deep voice,'' and she attempted to mimic his 
voice during her testimony. Tr. 47. She also testified that Dr. Ozumba 
signed the Notice of Inspection in 1999. Tr. 30. Dr. Ozumba, however, 
did not sign the Notice of Inspection; it was signed by another 
employee of the HMC who was there. Tr. 47; see also GE-28. Furthermore, 
when Dr. Ozumba testified, given the Unit Chief's earlier testimony and 
mimicking, I was struck by the fact that Dr. Ozumba does not have a 
deep voice at all. Fourth, the Unit Chief's testimony was internally 
inconsistent concerning whether a closing interview was conducted. At 
first, she testified that she participated in a closing interview with 
the owners of the clinic. Tr. 38-39. Later, the Unit Chief testified 
that she could not recall if a closing inventory had been conducted. 
Tr. 78. Finally, this inspection occurred over seventeen years ago. 
While I find that the Unit Chief's testimony generally was forthright 
and honest, where her testimony directly conflicts with the testimony 
of other witnesses, I give the Unit Chief's testimony less weight.
    Second, the Government presented the testimony of Latoya Latrese 
McSwain, L.P.N. (``McSwain''). Tr. 85-147. McSwain was employed by the 
HMC as a dosing nurse from January 2014 through January 2015. Tr. 86, 
102. McSwain was familiar with the manner in which controlled 
substances were inventoried at the HMC. Tr. 112. McSwain signed and 
initialed parts of the HMC's daily dispensing record. See Respondent's 
Exhibit (``RE-'') A, at 85, 91. Along with the HMC's receptionist, 
McSwain was at the clinic when DEA investigators conducted an 
inspection in 2014. Tr. 87. Before Dr. Ozumba arrived at the HMC during 
that inspection, the DEA Diversion Investigator Case Agent (``Case 
Agent'') spoke with McSwain. Tr. 92, 110. During the inspection, 
McSwain helped thoroughly search the HMC for the documents requested by 
DEA. Tr. 89-90. I find McSwain's testimony to be detailed, thorough, 
honest, and internally consistent. Therefore, with one exception, I 
merit her testimony as credible in this Recommended Decision. I do not 
credit her testimony concerning the time the DEA investigators arrived 
to conduct the inspection on October 14, 2014.
    Third, the Government presented the testimony of Natalie Benjamin 
Farr Franks (``Franks''). Tr. 148-79. Franks worked for the HMC as a 
dispensing nurse from February 2010 through June 2012, except for a 
six-month period in which Franks took maternity leave. Tr. 149-50. As a 
dispensing nurse, Franks handled recordkeeping, administered 
medication, and inventoried the HMC's controlled substances. Tr. 151-
52. I find Franks' testimony to be detailed, thorough, honest, and 
internally consistent. Therefore, I merit her testimony as credible in 
this Recommended Decision.
    Fourth, the Government presented the testimony of a DEA Group 
Supervisor (``Group Supervisor''). Tr. 187-264. The Group Supervisor 
has worked for the DEA for about 10 years. Tr. 188. In January 2005, 
the Group Supervisor began working as a diversion investigator at the 
DEA's Houston office. Tr. 188. On September 8, 2006, the Group 
Supervisor participated in a scheduled inspection of the HMC. Tr. 192. 
During that inspection, the Group Supervisor observed the physical 
audit of the HMC's controlled substances and provided calculations to 
create a closing inventory, GE-23. Tr. 204-06. Through the Group 
Supervisor's testimony, the Government authenticated and successfully 
offered into evidence GE-22-26. See Tr. 187-264. I find all of these 
exhibits to be accurate, authentic, and meriting credibility. I also 
find the Group Supervisor's testimony to be detailed, thorough, honest, 
and internally consistent. Therefore, I merit her testimony as credible 
in this Recommended Decision.
    Fifth, the Government presented the testimony of the Case Agent. 
Tr. 265-610. The Case Agent has worked for the DEA as a diversion 
investigator for six years. Tr. 266. The Case Agent investigates DEA 
registrants to verify their compliance with the Controlled Substances 
Act, and she has participated in over 100 scheduled investigations. Tr. 
266-67. The Case Agent formerly worked in the DEA's Houston office, and 
she currently works in the Miami office. Tr. 266. The Case Agent 
participated in the DEA's October 2011 and October 2014 scheduled 
inspections of the HMC. Tr. 271-72. Through the Case Agent's testimony, 
the Government authenticated and successfully offered into evidence GE-
3-6, 8-21, 31, and 33-37. See Tr. 265-610. I find all of these exhibits 
to be accurate, authentic, and meriting credibility. There is credible 
evidence of record that the Case Agent found dealing with the Ozumba's 
to be frustrating and that she was brusque in her dealing with them. 
There is also credible evidence that the Case Agent is a professional 
and well-trained DEA investigator. Therefore, I do not find that her 
frustration or brusqueness adversely impacts her credibility in this 
case. I find the Case Agent's testimony to be detailed, thorough, 
honest, and internally consistent. Therefore, I merit her testimony as 
credible in this Recommended Decision.
    Sixth, the Government presented the testimony of Cecilia Ozumba 
(``Mrs. Ozumba''). Tr. 643-938. The Respondent also elicited direct 
examination testimony from Mrs. Ozumba. Tr. 813. Mrs. Ozumba was 
educated and trained in clinical psychology and chemical dependence 
counseling; she is not educated and trained as a regulatory specialist. 
Tr. 814, 817, 821, 828. Through Mrs. Ozumba's testimony, the Government 
authenticated and successfully offered into evidence GE-7 and 27. See 
Tr. 643-938. Additionally, through Mrs. Ozumba's testimony, the 
Respondent authenticated and successfully offered into evidence RE-A, 
B, pages one through four of RE-C, RE-E, G, H, X, Z, and BB.
    During her testimony, Mrs. Ozumba seemed confused, had difficulty 
recalling pertinent information, and at times was evasive, particularly 
during the initial direct examination by Government counsel. For 
example, she was confused concerning: who had signed the DEA 
application for the HMC; the 1999 inspection; the sequence of the 2011 
inspection; and how RE-C had been created. Tr. 646, 685-89, 750, 787-
99. Confusion persisted throughout her first day of testimony, with 
examples too numerous to cite. She was not sure of: the number of times 
the HMC had been inspected by DEA; when the HMC started using 
buprenorphine; when RE-BB was provided to the Government; what 
documents she brought with her to the 2011 informal hearing; and 
whether the DEA investigators took documents away from the HMC during 
the 2011 inspection. Tr. 670, 672, 685-89, 716, 738-39, 754-55. I also 
found her testimony evasive about the training she received concerning

[[Page 42148]]

DEA regulations. Tr. 663-69. At times, her testimony was internally 
inconsistent, such as when she testified that she was not sure if the 
DEA inspectors removed documents from the HMC during the 2011 
inspection, and then later testified that they did, and when testifying 
that Dr. Ozumba was both there and not there during the 2011 
inspection. Tr. 754-56. In addition, Mrs. Ozumba frequently had trouble 
finding her place on exhibits when being questioned by counsel; in 
fact, to speed the process along, I highlighted one of the exhibits for 
her. Tr. 648, 680, 707-08, 801-03 (indication of ``pause''), 833-34, 
875, 896, 919. While these factors detract from Mrs. Ozumba's overall 
credibility as a witness, I found her to be truthful concerning her own 
medical issues, the recordkeeping procedures she had in place in the 
HMC, and her belief that the deficiencies related to the 1997, 1999, 
and 2006 inspections had been ``resolved.'' Where her testimony 
conflicts with the testimony of other witnesses, I give her testimony 
less weight.
    The Respondent presented its case through the testimony of four 
witnesses, including Mrs. Ozumba. The Respondent presented the 
testimony of a second witness, Sharon Bultron, R.N. (``Bultron'').\8\ 
Tr. 612-43. Bultron has been a nurse for 30 years and began working for 
the HMC in June 2006; she still currently works for the HMC on a part-
time basis. Tr. 613-14, 623. Bultron was present during the 2006 DEA 
inspection. Tr. 629. Bultron testified that she did not participate in 
the 2006 inventory. Tr. 631. When she examined GE-23, however, she 
concluded that she had assisted with the inventory. Tr. 634-35; see GE-
23.\9\ I find Bultron's testimony to be detailed, thorough, honest, and 
internally consistent. Therefore, I merit her testimony as credible in 
this Recommended Decision.
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    \8\ With the consent of both parties, the testimony of the 
Respondent's witness, Sharon Bultron, was taken out of order at the 
Respondent's request. Tr. 612.
    \9\ GE-23 bears Bultron's signature and reflects that Bultron 
took the inventory during the 2006 inspection.
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    Third, the Respondent presented the testimony of William ``Rusty'' 
Garnett (``Garnett''). Tr. 947-1007. Garnett testified that he 
currently works as a ``glorified administrator'' for the HMC; 
specifically, he runs the front desk and has contact with patients and 
vendors. Tr. 948. Garnett worked for the HMC from May 2012 through May 
2013, and returned to work there in December 2015. Tr. 949-50. Garnett 
has always worked for the HMC as a part-time employee, working six days 
a week. Tr. 973. Garnett was not present at the HMC during any of the 
DEA's inspections. Tr. 974. Garnett personally receives daily 
dispensing numbers from the dispensing nurses and enters those numbers 
into a digital perpetual inventory. Tr. 949. Garnett testified that he 
created RE-X, a document that Mrs. Ozumba claims to have created in 
2006. Tr. 935, 963, 1004. I find Garnett's testimony to be detailed, 
thorough, honest, and internally consistent. Therefore, I merit his 
testimony as credible in this Recommended Decision.
    Fourth, the Respondent presented the testimony of Dr. Amos Ozumba 
(``Dr. Ozumba''). Tr. 1008-36. Dr. Ozumba is a psychotherapist and was 
the original DEA registrant for the HMC. Tr. 1008-09. Dr. Ozumba's 
testimony was at times confusing, internally inconsistent, and 
inconsistent with the testimony of other witnesses. For example, Dr. 
Ozumba testified about the DEA's 2011 inspection, first saying that he 
was called by McSwain, but the Respondent's counsel pointed out that 
Franks, not McSwain, was the dispensing nurse at the HMC at the time. 
Tr. 1009-10. In addition, despite several attempts by Respondent's 
counsel to clarify whether Dr. Ozumba was testifying about the 2011 or 
2014 inspection, Dr. Ozumba erroneously remained firm that he was 
testifying about the 2011 inspection when, in reality, he described 
details from the 2014 inspection. Tr. 1009-12. Further, Dr. Ozumba 
testified both that he explained to the investigators that his wife was 
sick, that she was present for the inspection, and, at a later point, 
that he could not recall if Mrs. Ozumba was present. Tr. 1010, 1012, 
1027. Dr. Ozumba also testified about what the DEA inspectors did after 
he left the HMC. Tr. 1012. For these reasons, and for further reasons 
discussed infra, with one exception, I do not merit Dr. Ozumba's 
testimony as credible where it conflicts with the testimony of other 
witnesses. The one exception concerns his testimony that the closing 
inventory had been taken prior to his arrival at the HMC on October 14, 
2014. Tr. 1017-18; see GE-11 (documenting that the closing inventory 
was taken at 9:15 a.m.).
    Following the Respondent's case-in-chief, the Government presented 
the testimony of two rebuttal witnesses. First, the Government 
presented the testimony of a DEA diversion investigator (``DI''). Tr. 
1038-52. The DI has worked in the DEA's Houston office for the past 
five years. Tr. 1039. The DI participated in the DEA's inspections of 
the HMC in 2011 and 2014. Tr. 1039. I find the DI's testimony to be 
detailed, thorough, honest, and internally consistent. Therefore, I 
merit her testimony as credible in this Recommended Decision, except 
for the following issues: whether McSwain was still dosing patients 
when the DEA investigators arrived; and whether a closing inventory was 
taken prior to Dr. Ozumba's arrival at the clinic on October 14, 2014. 
See GE-11 (documenting that the closing inventory was taken at 9:15 
a.m.).
    Second, the Government presented the testimony of Assistant United 
States Attorney (``AUSA'') Jill Venezia (``Venezia''). Tr. 1053-71. 
Venezia has been an AUSA in Houston since 1997. Tr. 1054. In 2013, 
Venezia handled a case against the Respondent on behalf of the United 
States Attorney's Office. Tr. 1054-55. That case concerned the HMC's 
alleged recordkeeping violations discovered during the 2011 inspection. 
Tr. 1055. I find Venezia's testimony to be detailed, thorough, honest, 
and internally consistent. Therefore, I merit her testimony as credible 
in this Recommended Decision.
    The Respondent attempted to introduce the testimony of a rebuttal 
witness. That witness had attended every session of the hearing. I 
excluded the witness, citing the sequestration order that I issued 
pursuant to the Respondent's request at the beginning of the hearing. 
Tr. 1072-73.
    The factual findings below are based on a preponderance of the 
evidence, including the detailed, credible, and competent testimony of 
the aforementioned witnesses, the exhibits entered into evidence, and 
the record before me.

FACTUAL FINDINGS

I. Background on the Respondent

    1. The HMC is a narcotic treatment program in Houston, Texas. See 
Stipulation (``Stip.'') 1; GE-1. The HMC opened in 1995 or 1996. Tr. 
824. When the HMC opened, it was a small clinic that participated in 
client referral for job retraining. Tr. 825-26. The HMC also provided 
counseling in life skills, stress management, and relapse prevention. 
Tr. 825-26. When the HMC first began its operations, Mrs. Ozumba did 
not run the clinic. Tr. 824.
    2. The HMC employed a medical director, a counselor, dispensing 
nurses, and an office manager. Tr. 826-27. The HMC dispensed liquid 
methadone \10\ and methadone diskettes to its patients.\11\ See Tr. 
157. The HMC also

[[Page 42149]]

dispensed some buprenorphine.\12\ Tr. 117.
---------------------------------------------------------------------------

    \10\ Liquid methadone is also referred to as LAAM. Tr. 30, 79-
80.
    \11\ Methadone is a Schedule II controlled substance. 21 C.F.R. 
Sec.  1308.12(c)(15).
    \12\ Buprenorphine is also known as Suboxone and is an agonist-
antagonist medication used in opioid treatment. Tr. 117. Substances 
containing buprenorphine are classified in Schedule III. 21 C.F.R. 
Sec.  1308.13(e)(2)(i).
---------------------------------------------------------------------------

    3. The HMC's dosing hours were from 5:30 a.m. to 9:30 a.m., and the 
clinic closed at 10:00 a.m. Tr. 151, 763-64; cf. Tr. 87. The clinic, 
however, remained open for counseling and by appointment until 4:00 
p.m. Tr. 763-64.
    4. The HMC has consistently followed the same general recordkeeping 
procedures since the 1990s. Tr. 845-46. The dispensing nurse 
inventoried the controlled substances the HMC had on hand each morning. 
Tr. 626, 844-45. The nurse then filled out the Respondent's dispensing 
log during the day and, at the end of the dispensing hours, the nurse 
tallied the log. Tr. 627-28, 843. The nurse also inventoried the 
controlled substances in the HMC's controlled substances safe. Tr. 640, 
843. The physical count of the controlled substances had to match the 
calculated inventory count. Tr. 173, 444-45, 843-45. The daily dosing 
records were kept in spiral binders. Tr. 841.
    5. The HMC stored its methadone diskettes and liquid methadone in a 
safe with a combination lock. Tr. 175. This safe was in a room that 
required a key for entry. Tr. 175-76. An alarm system was connected to 
the safe. Tr. 175, 177.

II. Background on DEA Inspections

    6. A DEA group supervisor schedules inspections and audits of 
registrants. Tr. 190. Scheduled inspections are unannounced because the 
DEA expects registrants to always comply with the Controlled Substances 
Act and its implementing regulations, and the registrant's records are 
always supposed to be readily retrievable. Tr. 51, 193. Inspections are 
conducted during normal working hours. Tr. 51, 193.
    7. DEA inspections of narcotic treatment programs generally follow 
the same basic format as inspections of other registrants. Tr. 191. At 
the beginning of a routine inspection, DEA investigators ask the 
registrant's representative to sign a notice of inspection. Tr. 51, 
268. A notice of inspection outlines the registrant's rights and 
discusses the DEA's authority to inspect the registrant, and normally 
is accompanied by an explanation of what the DEA will do during the 
inspection. GE-28; Tr. 30.
    8. The DEA investigators then conduct interviews to determine how 
the registrant's business runs and its policies and practices. Tr. 268. 
The investigators determine who has access to the registrant's 
controlled substances. Tr. 268.
    9. During an inspection, registrants are asked to produce their 
controlled substance records, such as their biennial inventory, 
purchase records, dispensing records, and loss or theft reports. Tr. 
194, 268. Inspections are normally done on-site, but, if the DEA takes 
a registrant's records off-site, the DEA provides the registrant with a 
receipt for the records taken. Tr. 241.
    10. The inspection starts with DEA investigators obtaining the 
registrant's biennial audit or any physical inventory taken during the 
audit period; this audit or inventory is used by the DEA as a beginning 
inventory. Tr. 195. The DEA will then add the registrant's purchases to 
the inventory. Tr. 195. The total of these figures is the amount of 
controlled substances for which the registrant is accountable. Tr. 195.
    11. The DEA then conducts a closing inventory on the day of the 
inspection. Tr. 195, 268. Distributions, losses, or thefts are added to 
the closing inventory count. Tr. 195. This combined total is the amount 
of controlled substances for which the registrant can account. Tr. 195.
    12. If there is a difference between the controlled substances that 
a registrant is accountable for and the controlled substances that a 
registrant can account for, the DEA reviews its audit and calculations 
to verify that the audit was done correctly. Tr. 195-96. When a team of 
DEA investigators conducts an audit, all of the investigators count and 
check their counts against each other. Tr. 80-81, 196. If, upon further 
review, a difference (or ``variance'') still exists, the registrant is 
given an opportunity to explain the difference. Tr. 196.
    13. It is more difficult to obtain an accurate measurement of 
liquid methadone than methadone tablets. Tr. 63. Liquid methadone 
bottles may also be overfilled by their manufacturers. Tr. 221, 223, 
256-57.\13\ A small statistical variance is expected in measurements of 
liquid methadone. Tr. 63, 220-21.
---------------------------------------------------------------------------

    \13\ Liquid methadone bottles are not translucent. RE-Q.
---------------------------------------------------------------------------

    14. During an inspection, the DEA also evaluates the registrant's 
security system. Tr. 194, 268-69. To do so, a member of the DEA's 
inspection team will speak on the phone with the registrant's security 
company while the registrant's security system is intentionally 
breached to ensure that the security company receives signals triggered 
by the breach. Tr. 194.
    15. At the end of an inspection, investigators normally conduct a 
closing discussion with the registrant to address the results of the 
inspection. Tr. 269; see Tr. 670-71 (acknowledging that after three of 
the DEA inspections involved in this case, the DEA discussed the 
results of the inspection with Mrs. Ozumba).

III. The 1997 Inspection

    16. The DEA inspected the HMC on April 17, 1997. GE-33; \14\ see 
Tr. 401-02. Mrs. Ozumba signed the Notice of Inspection at that time. 
GE-33; Tr. 398-401.
---------------------------------------------------------------------------

    \14\ In this case, exhibits more than 10 years old were obtained 
from archival storage. Tr. 398-401, 405.
---------------------------------------------------------------------------

    17. Government's Exhibit 34 is a copy of the closing inventory from 
the 1997 inspection. Government's Exhibit 35 is a copy of the 
computation chart used during the inspection.
    18. DEA investigators found that the HMC had a shortage of 16,144 
mg of methadone tablets (a 1% difference) and a shortage of 411 mg/mL 
of liquid methadone (a 7% difference). GE-35; see GE-34 (showing that 
the Respondent had 249,975 mg of methadone tablets and 100 mg of liquid 
methadone on hand at the time of the inspection).
    19. On May 1, 1997, the DEA sent a letter of admonition to Mrs. 
Ozumba. GE-36; Tr. 404-05. The letter stated that the HMC failed ``to 
maintain complete and accurate records of controlled substances . . . . 
Result[ing] in a variance of -16,144 (-1%) Methadone and -411 (-7%) 
LAAM.'' GE-36. The letter directed Mrs. Ozumba to advise the DEA about 
what ``specific steps [she] will take to correct the violations.'' GE-
36.
    20. On May 21, 1997, Mrs. Ozumba wrote a letter to the DEA to 
identify corrective measures she implemented to rectify the problems 
identified in the 1997 inspection. GE-37; Tr. 407-09, 675-78.
    21. Mrs. Ozumba accepts responsibility for the variances discovered 
in the 1997 inspection. Tr. 685, 687, 693, 929.

IV. The 1999 Inspection

    22. On December 6, 1999, at around 10:00 a.m., the DEA inspected 
the HMC. See GE-28, 29; Tr. 48. At the beginning of the 1999 
inspection, Emmanuel Uchem (``Mr. Uchem''), the HMC's facility manager, 
signed a Notice of Inspection.\15\ Tr. 32, 47, 52, 72; see GE-28; see 
also GE-32, at 1 (identifying Mr. Uchem as the Respondent's facility 
manager). Generally, a facility manager

[[Page 42150]]

has access to all documents needed to conduct a DEA audit. Tr. 53-54.
---------------------------------------------------------------------------

    \15\ The Unit Chief's testimony that Dr. Ozumba signed the 
Notice of Inspection undermines her credibility. Tr. 30.
---------------------------------------------------------------------------

    23. After Mr. Uchem signed the Notice of Inspection, the DEA 
inventoried the HMC's liquid methadone and methadone diskettes. Tr. 30. 
Government's Exhibit 29 is a copy of the closing inventory. Tr. 33. 
Government's Exhibit 30 is a copy of the computation chart used by the 
investigators during the inspection. Tr. 36-37.
    24. DEA investigators found that the Respondent had an overage of 
100,810 \16\ mg of methadone diskettes, and a shortage of 2,591 mg of 
liquid methadone. GE-30; Tr. 37, 40.\17\ The Unit Chief recalled that 
the Respondent had an overage of one product and a deficit of the 
other, but she could not recall which was which. Tr. 30-31.
---------------------------------------------------------------------------

    \16\ The Unit Chief testified that the quantity of methadone 
diskettes on GE-29 should have been 641,740, rather than 641,750, 
which would have resulted in an overage of 100,800 mg of methadone. 
GE-29-30; Tr. 55-59. Upon closer examination of the exhibit, 
however, the 641,750 figure is correct. The error occurred in the 
``Containers X Contents'' column concerning the methadone diskettes, 
where the investigators added 340 to 1410, and entered 1740 as the 
sum. Simple addition reveals the correct total to be 1750. Thus, the 
totals in the ``Containers X Contents'' column of GE-29 would be 
624,000 + 16,000 + 1750, which equals 641,750.
    \17\ Column 5 of GE-30 represents the controlled substances the 
HMC had on hand when the DEA conducted the inspection. Tr. 37, 40. 
This number is taken from the column on GE-29 labelled ``Quantity.'' 
GE-29. The ``Quantity'' column of GE-29 was determined by 
multiplying the number of controlled substances the Respondent had 
on hand by the strength of the controlled substances. Tr. 55. Column 
6 of GE-30 was calculated using the Respondent's controlled 
substance purchases and dispensing logs. Tr. 40. Column 8 is the 
variance amount, which represents the difference between Column 4 
and Column 7. GE-30; Tr. 82.
---------------------------------------------------------------------------

    25. Throughout the 1999 inspection, the employees of the HMC were 
cooperative with the DEA investigators. Tr. 54.
    26. It is unclear whether the DEA investigators conducted a closing 
interview following the 1999 inspection. Compare Tr. 39 (stating that 
the Unit Chief helped conduct a closing interview, wherein the DEA 
discussed variances with the Respondent), and Tr. 74 (stating that 
there was a closing interview after the inspection), with Tr. 78 
(stating that the Unit Chief was unsure whether the DEA conducted a 
closing interview after the inspection).
    27. On December 15, 1999, the DEA issued a Notice of Hearing to the 
HMC, which informed the HMC that it would be the subject of a hearing 
concerning its failure to ``maintain accurate records resulting in the 
following discrepancies: Methadone Diskets 40 mg +100,810 mg[,] + 
3.77%[;] LAAM 10 mg/ml -2,591mg[,] -3.01%.'' GE-31; see Tr. 398-401, 
411-13.
    28. On March 6, 2000, Mrs. Ozumba signed a Memorandum of 
Understanding (``MOU'') on the HMC's behalf. GE-32; Tr. 65. The MOU 
cited the HMC for its failure to maintain a complete and accurate 
record of Schedule II controlled substances received and distributed. 
GE-32, at 1. The MOU did not mention any variances found during the 
December 1999 inspection. Tr. 68, 875; see GE-32. In the MOU, the HMC 
agreed to ``maintain a complete and accurate record of all Schedule II 
controlled substances received and distributed as required by 21 U.S.C. 
Sec.  827(a)(3) and 21 C.F.R. Sec.  1304.21(a).'' GE-32, at 2.
    29. Mrs. Ozumba's acceptance of responsibility for the variances 
discovered in 1999 is unclear. Mrs. Ozumba believed that every variance 
discovered after the 1997 inspection had been resolved. Tr. 694. While 
Mrs. Ozumba accepted responsibility for the variance found in 1999, she 
also denied responsibility for it. See Tr. 685, 689. Mrs. Ozumba 
specifically denied having a variance of 100,810 diskettes in 1999, 
stating she has never had a variance that large. Tr. 696-97; see GE-30. 
Mrs. Ozumba also testified that she believed the 1999 variances had 
been resolved by the MOU. Tr. 697-98.

V. The 2006 Inspection

    30. Prior to the 2006 inspection, at the start of every day, 
Bultron inventoried the controlled substances at the HMC. Tr. 626. At 
the end of each day, she tallied up what she had dispensed, subtracted 
that from her starting inventory, and conducted a closing inventory. 
Tr. 627-28. Around the time of the inspection, the HMC kept 
ongoing,\18\ systematic daily dispensing records. GE-27; Tr. 878. At 
the time of the 2006 inspection, all of the HMC's records were paper 
files. Tr. 623.
---------------------------------------------------------------------------

    \18\ There was a gap in the monthly perpetual records due to 
Mrs. Ozumba's absence for a family vacation. Tr. 878-80; see GE-27. 
Nonetheless, at that time, the HMC's nurses still conducted opening 
inventories, maintained daily dispensing records, and conducted 
closing inventories each day. Tr. 878.
---------------------------------------------------------------------------

    31. On September 8, 2006, the DEA conducted a scheduled inspection 
of the HMC. Tr. 192, 198. Mrs. Ozumba signed a Notice of Inspection at 
9:55 a.m. that day. GE-22; Tr. 200-01. The employees of the HMC 
cooperated with the DEA investigators during this inspection. Tr. 630-
31. Likewise, the DEA investigators acted professionally. Tr. 634.
    32. During this inspection, the HMC had an adequate \19\ biennial 
inventory. Tr. 255.
---------------------------------------------------------------------------

    \19\ If a registrant counts its controlled substances every day 
and records that count in a manner that satisfies the Code of 
Federal Regulations' biennial inventory requirements, that daily 
inventory is considered to be an adequate biennial inventory. Tr. 
246.
---------------------------------------------------------------------------

    33. The HMC only provided DEA investigators with one 222 Form, 
which was dated June 13, 2006. Tr. 202-03; see GE-25.
    34. The DEA inventoried the HMC's liquid methadone and methadone 
diskettes. GE-23; Tr. 205, 219-20. Government's Exhibit 23 is a copy of 
the closing inventory. Tr. 205. Government's Exhibit 24 is a copy of 
the computation chart used during the inspection. Tr. 207.\20\
---------------------------------------------------------------------------

    \20\ The purchases reflected on GE-25 are recorded under the 
``purchases/receipts'' column of GE-24. Tr. 207-08.
---------------------------------------------------------------------------

    35. DEA investigators found that the HMC had a shortage of 40 mg of 
methadone diskettes \21\ (a .01% difference) and an overage of 2,954 mg 
of liquid methadone (a 1.9% difference). GE-24; see Tr. 207-09.\22\
---------------------------------------------------------------------------

    \21\ This equals just one methadone tablet. Tr. 251.
    \22\ But see Tr. 629 (Bultron testifying that, during the 2006 
inspection, a DEA investigator told her that the HMC's inventory 
balanced out, but Bultron could not recall whether the investigator 
was a man or a woman).
---------------------------------------------------------------------------

    36. The methadone diskettes variance did not raise concerns that 
the HMC was diverting methadone tablets. Tr. 225. However, the liquid 
methadone variance could not be accounted for by overfilling, and was 
not a small or expected variance. Tr. 220-21, 230.
    37. Following the inspection, the DEA conducted a closing interview 
with Mrs. Ozumba and gave her an opportunity to explain both variances. 
Tr. 250, 881. Initially, the variance for methadone diskettes was 
greater than just 40 mg. Tr. 251. Mrs. Ozumba produced an explanation, 
which the DEA accepted and applied to reduce the variance to only 40 
mg. Tr. 251. However, Mrs. Ozumba did not provide any explanation for 
the overage of liquid methadone. Tr. 251.
    38. On September 26, 2006, the DEA sent Mrs. Ozumba a letter of 
admonition regarding the 2006 inspection. Tr. 212-14; GE-26. The letter 
of admonition alleged that the HMC's ``[d]ispensing records were not 
maintained in a complete and accurate manner'' \23\ as required by 
federal regulations. GE-26; Tr. 233.
---------------------------------------------------------------------------

    \23\ Contra Tr. 881-82.
---------------------------------------------------------------------------

    39. In response to the letter of admonition, Mrs. Ozumba sent a 
letter to the DEA. GE-27; Tr. 238-39. Mrs. Ozumba's letter acknowledged 
a ``gap in monthly perpetual summary records'' due to her brief absence 
from the HMC. GE-27. Mrs. Ozumba indicated that she had conducted 
training, some of which surpassed federal requirements, such as

[[Page 42151]]

perpetual inventories.\24\ GE-27; Tr. 239-40. Bultron, however, did not 
recall the HMC implementing any new policies, procedures, or trainings 
after the 2006 inspection. Tr. 638.
---------------------------------------------------------------------------

    \24\ At the hearing, Mrs. Ozumba testified that she created a 
new form, RE-X, to control the Respondent's inventory of controlled 
substances in response to the 2006 inspection. Tr. 931-35. However, 
in GE-27, Mrs. Ozumba mentioned no such form. Moreover, Garnett 
credibly testified that he created RE-X in 2012. Tr. 977. Therefore, 
I do not find Mrs. Ozumba's testimony on this point to be credible.
---------------------------------------------------------------------------

    40. Mrs. Ozumba's acceptance of responsibility for the variance 
discovered in 2006 is unclear. Mrs. Ozumba acknowledged the 2006 
variance, but believed that it had been resolved. Tr. 930-31. Mrs. 
Ozumba believed that the issues identified during the 2006 inspection 
were resolved by her letter, wherein she explained that the ``gap in 
monthly perpetual summary records was accounted or caused by the 
Director's brief absence due to a family vacation.'' GE-27; Tr. 690-92; 
see Tr. 694 (asserting that all issues after the 1997 inspection had 
been resolved). Mrs. Ozumba believed that she provided to DEA a 
satisfactory explanation resolving the variance within 30 days of the 
DEA inspection. Tr. 699-702.
    41. During the 2006 inspection, the HMC provided the DEA with all 
the forms or documents it requested, and the HMC was not cited for any 
errors related to its 222 Forms or biennial inventory. Tr. 630, 881-82.

VI. The 2011 Inspection 25
---------------------------------------------------------------------------

    \25\ I do not credit Dr. Ozumba's testimony about the 2011 
inspection as fully reliable, Tr. 1009-26, because it contains 
several contradictions and inconsistencies. E.g., compare Tr. 1009-
10 (stating that Mrs. Ozumba was not present for the inspection), 
with Tr. 1012, 1014-15 (stating that Mrs. Ozumba was present for the 
inspection); compare Tr. 1012 (stating that the HMC produced records 
to the DEA investigators before following the investigators to the 
parking lot), with Tr. 1014 (stating that the HMC produced records 
to the DEA investigators after following the investigators to the 
parking lot). Insofar as Dr. Ozumba's testimony about the 2011 
inspection aligns with other witnesses' testimony about the 2014 
inspection, I have considered it under the 2014 inspection findings, 
infra. Insofar as Dr. Ozumba's testimony contradicts other 
witnesses' testimony about either the 2011 or 2014 inspections, I do 
not merit his testimony as credible in this Recommended Decision.
---------------------------------------------------------------------------

A. Recordkeeping Procedures Before the 2011 Inspection

    42. Throughout Franks' employment at the HMC, including prior to 
the 2011 inspection, Franks counted the medicine and balanced the HMC's 
controlled substance inventory at the end of each day. Tr. 152. There 
were occasions when the morning inventory count did not match the 
previous day's closing inventory count. Tr. 153. When this happened, 
Franks would alert Mrs. Ozumba. Tr. 153. Likewise, at the end of each 
day, Franks verified that her records matched the physical count of 
remaining medication at the HMC. Tr. 163-64. Franks recorded the amount 
of medication she dispensed each day in a file maintained on a 
computer, printed out the information, and put the printout in a 
binder. Tr. 164-66. These records were stored in the medication room. 
Tr. 171. Franks followed these recordkeeping procedures throughout the 
entire time she worked at the HMC. Tr. 171. Mrs. Ozumba emphasized the 
importance of keeping accurate records. Tr. 173.
    43. While working for the HMC, there were times when Franks ordered 
controlled substances for the Respondent's clinic. Tr. 154. On those 
occasions, Franks would sign her name on 222 Forms at Mrs. Ozumba's 
direction. Tr. 153-54. Respondent's Exhibit BB contains copies of 222 
Forms that Franks signed between October 2011 and May 2012. RE-BB, at 
1-6, 8; Tr. 155-57.
    44. On October 1, 2011, and on numerous days until December 31, 
2011, Franks prepared methadone daily dispensing records for the HMC. 
Tr. 163-70; see RE-G-H.\26\
---------------------------------------------------------------------------

    \26\ Respondent's Exhibit G contains methadone diskette 
dispensing records from October 1, 2011, through December 30, 2011. 
Respondent's Exhibit H contains liquid methadone dispensing records 
from October 14, 2011, through December 31, 2011. They were offered 
in evidence to show the type of records the HMC was maintaining 
around the time of the 2011 inspection. Tr. 854-56.
---------------------------------------------------------------------------

B. The Inspection

    45. In October 2011, the DEA conducted a scheduled inspection of 
the HMC, with an audit period of one year. Tr. 291-92.
    46. Before beginning the inspection, the Case Agent checked the 
Registrant's Information Consolidated System (``RICS'') to see who had 
signed the Respondent's DEA application. Tr. 277-78. RICS documented 
that, at one point, Dr. Ozumba signed the application and, at other 
times, Mrs. Ozumba had signed it. Tr. 279.
    47. Mrs. Ozumba signed a Notice of Inspection at 9:57 a.m. on 
October 11, 2011. GE-3; Tr. 272-73, 276. When the DEA investigators 
arrived to inspect the HMC, Mrs. Ozumba asked them to come back, 
stating she did not have the keys to the dosing room. Tr. 280.\27\ Mrs. 
Ozumba indicated that she could not get the keys to the dosing room 
that day. Tr. 280. The investigators insisted on starting the 
inspection and conducted the interview portion of the inspection that 
day. Tr. 281, 290. The investigators also confirmed the HMC's dosing 
hours and informed Mrs. Ozumba that they would return in a day or two. 
Tr. 282.
---------------------------------------------------------------------------

    \27\ Mrs. Ozumba testified, however, that she could have done 
the inspection but did not want to because the nurse had already 
left and because she had a doctor's appointment. Tr. 729
---------------------------------------------------------------------------

    48. On October 13, 2011, the investigators returned to the HMC 
during a time when Mrs. Ozumba had indicated the clinic would be open. 
Tr. 282. Upon arrival, the investigators found the Respondent's doors 
locked. Tr. 282. The investigators, however, talked with Franks, who 
was outside of the HMC. Tr. 149, 282-83, 731. Franks told the 
investigators that she had finished dispensing for the day and had to 
go take a test. Tr. 149, 282-83. The DEA investigators were 
professional and told Franks that they had an appointment with Mrs. 
Ozumba. Tr. 149-50, 158, 162. Franks advised the investigators that 
Mrs. Ozumba was not in the building, but Franks contacted Mrs. Ozumba 
by phone and let the DEA agents speak with her. Tr. 150, 283, 731. 
During that phone call, Mrs. Ozumba stated that she was unable to come 
to the clinic and could not get someone else to come to the clinic to 
complete the inspection that day.\28\ Tr. 283-84, 731. The DEA 
investigators returned to their office without conducting the 
inspection. Tr. 284. Shortly thereafter, Mrs. Ozumba called the DEA 
office and made arrangements to meet at the HMC later in the afternoon 
on that same day. Tr. 151, 284.
---------------------------------------------------------------------------

    \28\ In 2011, Mrs. Ozumba suffered from arthritis and chronic 
pain, as well as some mobility issues. Tr. 882, 1009.
---------------------------------------------------------------------------

    49. On the afternoon of October 13, 2011, DEA investigators, 
including the Houston Office's diversion program manager (``DPM''), 
went to the HMC. Tr. 151, 285. When they arrived, Mrs. Ozumba still did 
not have the keys to the dosing room, but Dr. Ozumba arrived soon 
thereafter with the keys. Tr. 285. The interaction between the DEA 
investigators and Mrs. Ozumba became tense and hostile, and the DPM 
announced that the investigators were leaving. Tr. 285-86, 719-26, 734-
35.\29\ Dr. Ozumba, Mrs. Ozumba, and Clemente Brown, a counselor, 
pursued the investigators outside of the clinic and persuaded the 
investigators to return to complete the investigation. Tr. 286-88, 
1013; cf. Tr. 883.
---------------------------------------------------------------------------

    \29\ The Case Agent testified that the DPM decided to leave 
because Mrs. Ozumba would not calm down. Tr. 285-86. I do not credit 
that testimony. I find it more likely that the investigators left 
because the interactions between the parties remained tense and 
hostile.
---------------------------------------------------------------------------

    50. When Franks observed the interactions between the Ozumbas and

[[Page 42152]]

DEA personnel during the inspection, the interactions were civil and 
very professional. Tr. 162. However, at times throughout this 
inspection, the interactions between Mrs. Ozumba and the Case Agent 
were fairly contentious. Tr. 463, 1015-16.

C. Physical Security

    51. The investigators checked the security system at the HMC and 
determined that it was not working properly. Tr. 288. The security 
company did not receive signals from various security zones in the 
clinic. Tr. 289, 533. Additionally, the HMC's dosing room did not have 
a panic button.\30\ Tr. 289, 533.
---------------------------------------------------------------------------

    \30\ Nothing in 21 C.F.R. Sec.  1301.74(l) requires a narcotic 
treatment program to have a panic button in its dosing room. Tr. 
601. However, the DEA can, within its discretion, require that a 
panic button be installed. Tr. 601; see 21 C.F.R. Sec.  1301.74(l). 
The Case Agent did not know whether, prior to October 2011, anyone 
had told the HMC that it was required to have a panic button in its 
dispensing room. Tr. 602.
---------------------------------------------------------------------------

D. 222 Forms

    52. The HMC did not produce any methadone 222 Forms from the audit 
period as requested by the DEA. Tr. 313.\31\ The DEA, however, 
contacted a methadone supplier, BIRI Roxane, which produced supplier's 
copies of five methadone 222 Forms on which the HMC had placed orders 
for methadone. Tr. 306-14; see GE-6, at 1-5.
---------------------------------------------------------------------------

    \31\ Contra Tr. 751, 886-87, 890.
---------------------------------------------------------------------------

E. Biennial Inventory and Dispensing Logs

    53. The HMC did not produce a biennial inventory when requested to 
do so by the DEA. Tr. 477.\32\
---------------------------------------------------------------------------

    \32\ Contra Tr. 751, 890. Mrs. Ozumba testified that the HMC 
maintained a biennial inventory. Tr. 888.
---------------------------------------------------------------------------

    54. The HMC produced its dispensing logs upon the DEA's request. 
Tr. 477, 751, 886. Respondent's Exhibit G contains the daily dispensing 
logs for methadone diskettes from October 1, 2011, to December 30, 
2011. Tr. 852-53. Likewise, RE-H contains the daily dispensing logs for 
liquid methadone from October 14, 2011, to December 31, 2011. Tr. 854-
55. Most of these records are from outside of the 2011 inspection's 
audit period, and these records do not show the actual pharmaceutical 
name or strength \33\ of the drugs represented therein. Tr. 854, 920-
24.
---------------------------------------------------------------------------

    \33\ The HMC, however, only ordered one strength of methadone 
diskettes (40 mg) and one strength of liquid methadone (1 mg/mL). 
Tr. 924-25.
---------------------------------------------------------------------------

F. Conclusion and Aftermath of the Inspection

    55. The DEA investigators conducted a closing inventory of 
methadone at the HMC. GE-4, at 1-2; Tr. 300-02, 748-49. The DEA did not 
perform a full audit of the HMC's controlled substance inventory 
because the HMC did not produce the records that the DEA needed in 
order to conduct an audit. Tr. 477.\34\
---------------------------------------------------------------------------

    \34\ Contra Tr. 722-23, 887, 890, 1012 (Both Dr. and Mrs. Ozumba 
testified that they produced the records requested by the DEA 
investigators, but that the investigators refused to look at them).
---------------------------------------------------------------------------

    56. Although Mrs. Ozumba produced records during the inspection, 
many of the records she produced were from outside of the audit period. 
Tr. 289-90.
    57. After two hours, the investigators terminated the inspection. 
Tr. 290.\35\ The investigators conducted a closing interview with Dr. 
and Mrs. Ozumba and told them: (1) which documents they had not 
provided to the investigators; and (2) what physical security issues 
the DEA had discovered.\36\ Tr. 290-91.
---------------------------------------------------------------------------

    \35\ Compare Tr. 734 (stating that the DEA investigators left 
because Mrs. Ozumba refused to surrender her DEA registration), with 
Tr. 1026 (noting that Dr. Ozumba did not hear the investigators ask 
Mrs. Ozumba to surrender the Respondent's registration). 
Additionally, Mrs. Ozumba testified that the investigators took the 
HMC's documents with them when they left the clinic. Tr. 736-38, 
754. I do not find this testimony to be credible, particularly 
because Mrs. Ozumba later testified that she was unsure whether the 
DEA took any documents from the clinic. Tr. 755.
    \36\ I do not credit Mrs. Ozumba's testimony that DEA did not 
conduct a closing interview concerning the 2011 inspection because 
the security system at the HMC was brought up to standards about a 
week after the inspection. Tr. 290-91; see also Tr. 901.
---------------------------------------------------------------------------

    58. After the inspection, the DEA noted that the HMC committed the 
following violations: failure to maintain a biennial inventory; failure 
to maintain complete and accurate records; failure to preserve 222 
Forms; failure to produce adequate power of attorney documents; and 
failure to maintain adequate physical security of its controlled 
substance inventory. Tr. 318-19.
    59. The DEA gave the HMC a short time period to correct its 
physical security issues. Tr. 290. Within a week, the HMC corrected 
those issues. Tr. 291, 533, 739-40, 901.
    60. Based upon the results of the inspection, DEA pursued a civil 
fine from the Respondent. Tr. 291. The United States Attorney's Office 
handled the case against the Respondent, which dealt solely with 
alleged recordkeeping violations. Tr. 1055.
    61. The HMC eventually negotiated a settlement with the United 
States Attorney's Office. Tr. 1056-57. Mrs. Ozumba signed a 
``Stipulated Agreement'' on March 26, 2013, to settle the violations 
found in 2011, but she is not sure \37\ if she reviewed it before she 
signed it. GE-7; Tr. 708-10. Although Mrs. Ozumba believed that she had 
done nothing wrong, she signed the Stipulated Agreement because she did 
not have ``a lot of options.'' Tr. 745.
---------------------------------------------------------------------------

    \37\ Mrs. Ozumba testified that no one discussed the agreement 
with her before she signed it. Tr. 710. When challenged on that 
statement, however, she admitted that her attorney explained the 
contents of the agreement to her. Tr. 710-11.
---------------------------------------------------------------------------

    62. Paragraph 16 of the Stipulated Agreement states that it ``does 
not release Houston Maintenance Clinic from DEA administrative 
liability under statute, contract or regulation.'' GE-7, at 6.
    63. Paragraph 23 of the Stipulated Agreement states, ``The Parties 
agree that this Agreement does not constitute evidence or an admission 
by any person or entity, and shall not be construed as an admission by 
any person or entity, with respect to any issue of law or fact.'' GE-7, 
at 7.
    64. Mrs. Ozumba specifically declined to accept responsibility for 
any recordkeeping issues discovered in the 2011 inspection. Tr. 933. 
Mrs. Ozumba believed that any issues concerning the 2011 inspection had 
been resolved. Tr. 694.

G. Recordkeeping Changes After the 2011 Inspection

    65. In May 2012, the HMC kept daily dispensing logs, but did not 
use the daily inventory form, which Garnett had created for the HMC, 
RE-X. Tr. 963, 1004. Instead, clinic nurses recorded the daily 
inventory on the daily dispensing logs. RE-A; Tr. 963, 1000-01. The HMC 
maintained its perpetual inventory in a Microsoft Word document and in 
paper files. Tr. 954, 956.
    66. In 2012, Garnett designed an Excel spreadsheet for the HMC for 
use as a perpetual inventory. Tr. 952-59. The Excel spreadsheet 
contained functions for automatic addition and subtraction. Tr. 956. 
The first entry under the beginning balance for controlled substances 
on the spreadsheet was taken from the closing inventory at the last DEA 
inspection. Tr. 957. In 2012, Garnett created the spreadsheet format 
for pages one and two of RE-C. Tr. 960, 982. These pages do not 
indicate an ending balance for any particular day except the last day 
of the month. Tr. 989, 1001-02. Further, these pages do not document 
any physical inventory of the HMC's controlled substances. Tr. 989.
    67. Prior to October 2013, Garnett formatted the HMC's daily dosing 
sheet. Tr. 977; RE-A. Garnett automated the HMC's daily dosing sheet; 
after entries are typed into the sheet, data is

[[Page 42153]]

automatically generated. Tr. 977, 1004. Anything handwritten on the 
daily dosing sheet is entered into the electronic dosing sheet by a 
nurse. Tr. 978.

VII. The 2014 Inspection

    68. Prior to the 2014 inspection, McSwain and other nurses employed 
by the HMC helped prepare daily dispensing records at the clinic. RE-A, 
at 85-318; RE-B, at 91-338; Tr. 103-04. These dispensing records were 
kept in an Excel spreadsheet. Tr. 99-100.\38\
---------------------------------------------------------------------------

    \38\ For example, on page 91 of RE-B, the daily dosing total of 
3,500 units of liquid methadone was entered into the Excel 
spreadsheet. Tr. 126-29, 138.
---------------------------------------------------------------------------

    69. McSwain and other employees generated a perpetual inventory on 
a monthly basis for the HMC, using the daily dosing records. Tr. 114. 
The perpetual inventory was generated by totaling all of that month's 
daily records. Tr. 114. When the HMC received orders of controlled 
substances, McSwain increased the inventory on the Excel spreadsheet 
accordingly. Tr. 115. On any given day, the incoming nurse could look 
at the perpetual inventory and know the prior day's ending inventory. 
Tr. 129.\39\
---------------------------------------------------------------------------

    \39\ Garnett testified, however, that using RE-C, at 1, you 
could not tell what the inventory was on any certain day, except for 
the last day of the month. Tr. 989, 1001-02.
---------------------------------------------------------------------------

    70. While McSwain worked at the HMC in 2014, its daily dispensing 
logs always balanced with its monthly records. Tr. 115.

A. Beginning of the Inspection

    71. The DEA inspected the HMC on October 14, 2014 with an audit 
period of October 1, 2013, through October 14, 2014. GE-9, at 1; Tr. 
603.
    72. On October 14, 2014, DEA investigators came to the HMC before 
9:15 a.m., to conduct an inspection. Tr. 87, 324; see GE-11. The HMC 
was still dosing when the DEA arrived. Tr. 87-88, 324.\40\ The 
investigators met with McSwain, who was the dispensing nurse at that 
time, and explained that they were there to conduct an inspection. Tr. 
324.
---------------------------------------------------------------------------

    \40\ The DI testified that the DEA investigators arrived after 
dispensing was completed. Tr. 1047. In light of conflicting 
testimony and GE-11, showing that the closing inventory was taken at 
9:15 a.m., I do not credit the DI's testimony on this issue.
---------------------------------------------------------------------------

    73. Mrs. Ozumba was not at the clinic at the time of the inspection 
because she was recovering from knee surgery and was in a great deal of 
pain. RE-Z; Tr. 88, 123, 324, 890, 893, 1017, 1035, 1039. When Mrs. 
Ozumba was contacted by phone, she requested that the DEA investigators 
come back to conduct the inspection in a couple of weeks. Tr. 324.
    74. Throughout the October 2014 inspection, the DEA investigators 
were professional and were not rude. Tr. 87-89, 100.\41\ Likewise, Dr. 
Ozumba and the Respondent's employees were professional and cooperative 
throughout the inspection. Tr. 1046.
---------------------------------------------------------------------------

    \41\ Contra Tr. 1022 (Dr. Ozumba testified that the DEA 
investigator was oppressive, verbally combative, and degrading, but 
he could not detail the investigator's statements). I do not credit 
Dr. Ozumba's testimony on this issue.
---------------------------------------------------------------------------

    75. After dosing was concluded, but before Dr. Ozumba arrived at 
the HMC, the DEA investigators inventoried the controlled substances at 
the clinic at 9:15 a.m.\42\ GE-11; Tr. 88, 343-45, 1017-18, 1020.
---------------------------------------------------------------------------

    \42\ Contra Tr. 1040, 1044 (stating that the investigators did 
not conduct any part of the investigation, including the inventory, 
before Dr. Ozumba arrived).
---------------------------------------------------------------------------

    76. Dr. Ozumba came to the HMC between noon and 1:00 p.m. Tr. 88, 
324-25, 765-66, 1009, 1017, 1019, 1040. Upon his arrival, Dr. Ozumba 
signed a Notice of Inspection. GE-8; Tr. 321-25, 1018-19.
    77. The DEA gave Dr. Ozumba a list of the documents that the DEA 
needed to review. Tr. 325. Dr. Ozumba had access to Mrs. Ozumba's 
office, and had keys to all of the doors in the HMC and Mrs. Ozumba's 
office. Tr. 90, 732-33. Dr. Ozumba was familiar with where the HMC's 
records were stored, but he did not know where all of the records were 
kept, including the 222 Forms. Tr. 1023.
    78. McSwain, Dr. Ozumba,\43\ and the DEA investigators all spoke to 
Mrs. Ozumba on the phone. Tr. 89, 91, 100, 325, 373, 431, 536, 716-17, 
766-67, 784, 1039, 1041, 1052.\44\ McSwain did not hear any of the 
conversations between the DEA investigators and the Ozumbas. Tr. 110-
11, 124, 140-41. Mrs. Ozumba made suggestions about where to look for 
the documents that the DEA had requested. Tr. 91, 124-25, 716-17, 767-
68, 784, 1041.\45\ However, Mrs. Ozumba testified that all of the 
required documentation, including daily dispensing logs, inventories, 
and 222 Forms, was at the HMC at that time. Tr. 894-95.
---------------------------------------------------------------------------

    \43\ Contra Tr. 1032 (stating that Dr. Ozumba did not talk to 
his wife during the inspection).
    \44\ It is unclear whether Mrs. Ozumba was under the influence 
of post-surgery medication at this time. Compare Tr. 124 (stating 
that Mrs. Ozumba did not seem to be under the influence of 
medication and seemed to be her normal, spirited self), with Tr. 
928-29 (stating that Mrs. Ozumba was taking tramadol, hydrocodone, 
prednisone, protonix, a muscle relaxer, and anxiety medication at 
that time), and Tr. 716, 772 (stating that she was not cognizant and 
was only pretending to be normal). Mrs. Ozumba was cognizant enough, 
however, to ask for the inspection to be conducted at a later date. 
Tr. 324.
    \45\ McSwain testified that Mrs. Ozumba did not suggest they 
look on the computer for documents. Tr. 133. Mrs. Ozumba's testimony 
on this point was contradictory; she first said that she did not 
tell McSwain to look on her computer, but then said that she told 
McSwain to look on her computer. Tr. 769-72. Further, the Case Agent 
found McSwain creating a document on the computer at Mrs. Ozumba's 
direction. Tr. 92-94, 326.
---------------------------------------------------------------------------

    79. Dr. Ozumba testified that he does not believe that the 2014 
inspection would have gone better if Mrs. Ozumba had been present for 
the inspection. Tr. 1024. He also testified, however, that Mrs. Ozumba 
knew where the 222 Forms \46\ and buprenorphine logs were located. Tr. 
1025; see also Tr. 91 (McSwain testifying that when Mrs. Ozumba was on 
the phone, she was only suggesting places to look for documents.)
---------------------------------------------------------------------------

    \46\ Tr. 898-99, 901-02. Mrs. Ozumba testified that the 222 
Forms provided at the hearing in RE-BB were maintained in the clinic 
in a locked cabinet. Tr. 898.
---------------------------------------------------------------------------

B. Biennial Inventory

    80. The Case Agent requested the biennial inventory for the HMC's 
controlled substances. Tr. 92, 1043. A biennial inventory reflects a 
physical count of controlled substances on hand on a specific day. Tr. 
371. The HMC did not provide a biennial inventory. Tr. 329, 521.\47\ 
During the inspection, however, Mrs. Ozumba was talking with McSwain by 
phone, instructing her how to create a biennial inventory. Tr. 92-93. 
The HMC provided the DEA with annual inventories for its methadone 
diskettes and liquid methadone, as well as its 2 mg and 8 mg 
buprenorphine. GE-10, at 1-4; Tr. 368-70, 584.
---------------------------------------------------------------------------

    \47\ Mrs. Ozumba testified that there was a biennial inventory 
on a ``backup'' drive, but McSwain did not know about it. Tr. 770.
---------------------------------------------------------------------------

C. Buprenorphine Inventory

    81. The Case Agent looked for the HMC's buprenorphine (suboxone) 
inventory. Tr. 94, 325-26. McSwain was not aware of that inventory; 
though, she did know that the daily dosing records of the patients who 
received buprenorphine were kept in a manila envelope. Tr. 93-95, 132. 
The HMC only had about three patients who received buprenorphine. Tr. 
94, 117. After requesting the buprenorphine inventory, the Case Agent 
entered the dosing room and found McSwain working on a computer, 
creating a buprenorphine inventory at Mrs. Ozumba's direction. Tr. 92-
94, 326. The Case Agent told McSwain to stop what she was doing and 
print off what she had without further modifications. Tr. 326. During 
the inspection, the HMC did not produce an initial inventory for 
buprenorphine. Tr. 456.

[[Page 42154]]

D. 222 Forms

    82. The DEA requested 222 Forms from the HMC. Tr. 89, 132-33, 1043. 
The HMC provided some 222 Forms to the DEA. GE-13, at 1-4; Tr. 353-54. 
However, one 222 Form, dated September 9, 2014, was incomplete because 
it does not show the number of packages received or the date of 
receipt. GE-13, at 1; Tr. 354-55. Another 222 Form was signed by Dr. 
Ozumba, not Mrs. Ozumba. GE-13, at 2; Tr. 355. The Respondent provided 
additional 222 Forms to DEA after the date of the inspection, but the 
DEA did not include the information contained on those forms in its 
audit of the HMC because they were received after the audit had been 
completed. Tr. 354, 366-67.
    83. The HMC provided the DEA with a list of controlled substances 
that it purchased between January 15, 2014 and September 12, 2014. GE-
12; Tr. 347-49. The DEA obtained a similar list from BIRI-Roxane, the 
Respondent's supplier. GE-15; Tr. 351, 359-63.
    84. The documents in RE-E are requisition forms for controlled 
substances, which are not forms that the DEA required the HMC to 
maintain. Tr. 459-61. In addition, they were not produced until this 
case was being prepared for the DEA administrative hearing. Tr. 460, 
538.\48\
---------------------------------------------------------------------------

    \48\ While it is possible to compare RE-E with GE-15 to 
calculate the quantity of controlled substances the Respondent 
received from BIRI-Roxane, it was the Respondent's responsibility to 
maintain its copy of 222 Forms, and to have them readily retrievable 
at the time of the inspection. Tr. 424, 460; see also 21 C.F.R. 
Sec. Sec.  1304.04(f)(2), 1305.17(a).
---------------------------------------------------------------------------

E. Dispensing Records

    85. The DEA requested the HMC's dosing records. Tr. 135, 1043. The 
HMC provided the DEA with dispensing logs for methadone diskettes and 
liquid methadone. Tr. 105, 107, 422, 456-57, 607, 1043-44; see RE-A-B. 
Respondent's Exhibit A contains the daily dosing logs for methadone 
diskettes from October 1, 2013, through October 14, 2014. RE-A; see Tr. 
847-48, 915. Respondent's Exhibit B contains the daily dosing logs for 
liquid methadone from September 30, 2013, to October 31, 2014. RE-B; 
Tr. 849-50.
    86. During the October 2014 inspection, no dispensing logs were 
provided for buprenorphine, and McSwain told the Case Agent that the 
HMC did not have dispensing logs for buprenorphine. Tr. 378, 422, 455. 
While RE-AA contains dispensing logs for buprenorphine, those logs were 
not provided during the inspection and were not produced by the 
Respondent until preparing for the DEA administrative hearing. Tr. 461-
62, 538.

F. Variances

    87. The investigators conducted a closing inventory as a part of 
their inspection. GE-11. The investigators used a computation chart to 
conduct their audit of the HMC's inventory. GE-9, at 1-9; Tr. 375-80. 
The closing inventory indicated that the HMC had an overage of 
1,200,000 dosage units of methadone diskettes and an overage of 500,251 
dosage units of liquid methadone. GE-9. The closing inventory also 
indicated that the HMC had a shortage of 30 buprenorphine 2 mg tablets 
and 175 buprenorphine 8 mg tablets. GE-9. These overages and shortages 
were calculated using only the HMC's receipt records; they did not 
incorporate BIRI-Roxane's (or other supplier's) records, because the 
audit focused on only the Respondent's records. Tr. 379, 421-24, 496-
98.

G. Power of Attorney Forms

    88. The DEA requested the HMC's power of attorney forms. Tr. 96, 
1043. McSwain knew that a power of attorney form had been prepared, but 
she could not find it. Tr. 96.
    89. Dr. Ozumba provided the Case Agent with two power of attorney 
forms. Tr. 327-29, 389-92. The first form was a blank form that was 
prepared for Austin Orette's (``Dr. Orette'') signature. GE-21; Tr. 
390. Dr. Orette was not authorized to sign a power of attorney on 
behalf of the HMC because Dr. Orette was not the HMC's DEA registrant. 
Tr. 598-99. The Case Agent explained to Dr. Ozumba that Dr. Orette did 
not have the authority to execute a power of attorney on behalf of the 
HMC. Tr. 327, 390-93.
    90. On the day of the inspection, McSwain signed a new power of 
attorney form, which was given to the DEA. Tr. 97. Dr. Ozumba gave the 
Case Agent a power of attorney form, purportedly signed (without any 
witnesses) on February 8, 2014, with ``C. Ozumba'' written in as the 
grantor, no name written in as the ``attorney-in-fact,'' and McSwain's 
name signed as the ``person granting power.'' GE-20; Tr. 328-29, 395-
96.

H. Conclusion and Immediate Aftermath of the Inspection

    91. The HMC was unable to provide the DEA with all of the documents 
the DEA had requested on the date of the inspection. Tr. 91, 94, 105, 
107, 132, 135-36, 329, 437-39, 455, 461-62, 521, 538, 1023.
    92. At the end of the inspection, the investigators took some 
documents they had requested with them and they left a receipt, which 
listed everything that the investigators took and the additional 
documents that the DEA needed. Tr. 96, 1022, 1028-29, 1033. The 
documents the DEA took included some of the 2014 dispensing logs. Tr. 
107-10.
    93. A few days after the inspection, but after the DEA's audit was 
completed, Mrs. Ozumba directed McSwain to retrieve a binder from Mrs. 
Ozumba's office and fax the documents contained therein to the DEA. Tr. 
98, 333. McSwain faxed the records that are contained in GE-14 to the 
DEA on October 17, 2014. Tr. 333. Some of those documents were the 
documents that the DEA investigators requested during the inspection, 
such as a power of attorney form and 222 Forms. Tr. 98-99. However, 
most of the faxed documents were from outside of the audit period. Tr. 
333; see GE-14. Only seven of the faxed pages were relevant to the 
DEA's audit. Tr. 340-42; see GE-14, at 3-9.
    94. The power of attorney that was faxed to the DEA on October 17, 
2014, was a form prepared for Dr. Orette's signature; it was signed, 
however, by Mrs. Ozumba, who was the person who had authority to sign a 
power of attorney on behalf of the HMC at that time.\49\ GE-14, at 2; 
Tr. 335, 337-39; see Tr. 98-99.
---------------------------------------------------------------------------

    \49\ Later, the Respondent submitted this same power of attorney 
form, but it was signed by Dr. Orette. RE-F. A comparison of page 
two of GE-14 and page one of RE-F reveals that the latter document 
is an alteration of the former. All of the handwritten entries on 
both documents are identical. On close examination, it is possible 
to see remnants of Mrs. Ozumba's signature to the left of and below 
Dr. Orette's signature. No explanation was provided by the 
Respondent concerning why the document was altered. The Respondent 
did not produce RE-F until it was preparing for the hearing in this 
case. Tr. 538. Nonetheless, RE-F represents that Dr. Orette was 
``authorized to sign the current application for registration'' on 
the Respondent's behalf. RE-F, at 2; see Tr. 102, 137. Dr. Orette, 
however, has never had the authority to sign the Respondent's DEA 
registration application. See Tr. 659.
---------------------------------------------------------------------------

    95. Because of Mrs. Ozumba's poor physical condition, the Case 
Agent attempted to conduct a telephonic closing interview with Mrs. 
Ozumba. Tr. 330-32. Mrs. Ozumba, however, did not cooperate in the 
telephonic closing discussion, so the interview was terminated early. 
Tr. 332.
    96. After the attempted closing interview, the DEA notified Mrs. 
Ozumba that an informal hearing would be conducted on December 10, 
2014. GE-17; Tr. 380-82. Mrs. Ozumba was notified that the hearing 
concerned the HMC's failure to: Maintain complete and accurate records 
of each controlled substance received, sold, and delivered; conduct a 
biennial inventory; conduct an initial inventory of buprenorphine; 
preserve 222 Forms; indicate the date of

[[Page 42155]]

receipt of 222 Forms; execute a power of attorney authorizing an 
alternate person to sign 222 Forms; and completely and accurately 
complete daily dispensing logs. GE-17, at 1-2. In response, Mrs. 
Ozumba, on behalf of the HMC, sent a letter to the DEA on December 4, 
2014. GE-18; Tr. 383-84. Therein, Mrs. Ozumba requested that the 
hearing be rescheduled to March 11, 2015, to allow her to obtain legal 
counsel for the HMC, and to accommodate Mrs. Ozumba's continuing post-
operative medical issues. GE-18; Tr. 385. The DEA denied the request. 
GE-19; Tr. 388-89.
    97. Mrs. Ozumba does not believe that the HMC committed any 
violation in 2014. Tr. 934. Mrs. Ozumba believes that any issue found 
by the DEA has been resolved. Tr. 694. Following this inspection, Mrs. 
Ozumba moved all of the HMC's 222 Forms to the clinic's dispensing 
room. Tr. 934. Mrs. Ozumba accepted responsibility for her absence 
during the inspection, but believed that, if the DEA were to conduct an 
inspection now, all of the needed records would be readily available. 
Tr. 934.

I. Records Produced For the DEA Administrative Hearing

    98. During the pendency of this case, the HMC provided the DEA with 
222 Forms from the 2014 audit period for the first time.\50\ RE-BB, at 
21-29; Tr. 437-39. One of these 222 Forms was an altered copy of a 
document previously given to the DEA during the 2014 inspection. Tr. 
439; compare GE-13, at 1, with RE-BB, at 29 (reflecting alterations on 
the numbers of packages received and the date on which they were 
received).
---------------------------------------------------------------------------

    \50\ Cf. Tr. 716.
---------------------------------------------------------------------------

    99. During the pendency of this case, the HMC also provided 
requisition forms for buprenorphine. RE-E; Tr. 867, 869. However, the 
HMC was not required to maintain these forms. Tr. 459-61.\51\ Moreover, 
RE-E was not provided to the DEA until this case was already pending. 
Tr. 460, 538. While it is possible to compare RE-E with GE-15 to 
calculate the quantity of controlled substances the HMC received from 
BIRI-Roxane, it was the Respondent's responsibility to maintain its 
copies of 222 Forms and to retrieve them within a reasonable time 
during the inspection. Tr. 424, 460; see also 21 C.F.R. 1304.04(f)(2), 
1305.17(a).
---------------------------------------------------------------------------

    \51\ Contra Tr. 866 (stating that the Respondent views this 
documentation as the ``equivalent'' of 222 Forms).
---------------------------------------------------------------------------

    100. Government's Exhibit 10, provided to the DEA during the 2014 
inspection, see Tr. 584, and Respondent's Exhibit E, provided to the 
DEA during this hearing, both purport to report the HMC's inventory in 
2014. Compare GE-10, with RE-E. A comparison of the two exhibits 
reveals that many of the recorded figures therein do not match, 
including the buprenorphine 2 mg, Tr. 559-66; compare GE-10, at 3, with 
RE-E, at 5, and the buprenorphine 8 mg, Tr. 566-71, compare GE-10, at 
4, with RE-E, at 8. Notably, the two exhibits reflect different: 
beginning balances of buprenorphine 2 mg tablets in June 2014; amounts 
dispensed in June, August, September, and October 2014; and ending 
balances in June through October 2014.\52\ Compare GE-10, at 3-4, with 
RE-E, at 5, 8.
---------------------------------------------------------------------------

    \52\ Page four of GE-10 contains no entries for September and 
October 2014.
---------------------------------------------------------------------------

    101. Respondent's Exhibit C was compiled using the HMC's daily 
dosing reports, but it was not presented to the DEA \53\ until this 
case was already pending before me. Tr. 540, 794-96, 863, 866. Pages 
one and two of RE-C are monthly summaries of the HMC's methadone 
diskette daily dosing perpetual inventory. RE-C, at 1-2; Tr. 116, 857. 
The beginning balance on this form is taken from the last DEA audit. 
Tr. 857-58. This information was maintained on Mrs. Ozumba's backup 
computer drive. Tr. 861-62. Pages three and four of RE-C are similar, 
except they concern liquid methadone. RE-C, at 3-4; Tr. 117, 863-64.
---------------------------------------------------------------------------

    \53\ During the inspection, the HMC produced different versions 
of pages one through four of RE-C. Tr. 540.
---------------------------------------------------------------------------

    102. Government's Exhibit 10, provided to the DEA during the 2014 
inspection, and Respondent's Exhibit C, provided to the DEA during this 
hearing, both purport to report the HMC's inventory. Compare GE-10, 
with RE-C. A comparison of the two exhibits reveals that many of the 
reported figures therein do not match, specifically, the methadone 40 
mg diskettes, Tr. 541-49, compare GE-10, at 1, with RE-C, at 1, and the 
liquid methadone, Tr. 551-59, compare GE-10, at 2, with RE-C, at 3. For 
example, the two exhibits record different: amounts of diskettes 
dispensed in November and December 2013; ending balances in October 
through December 2013; amounts of liquid methadone dispensed in October 
through December 2013; and ending balances of liquid methadone in 
October through December 2013. Compare GE-10, at 1-2, with RE-C, at 1, 
3.
    103. The HMC did not produce buprenorphine dispensing logs during 
the inspection. Tr. 455. Respondent's Exhibit AA is the Respondent's 
monthly buprenorphine dispensing logs for July 2014 through September 
2014. Tr. 117-23. These logs were not provided to the DEA during the 
2014 inspection, and were only given to the DEA when this case was 
already pending. Tr. 132, 135-36, 461-62, 538. Mrs. Ozumba testified 
that the Respondent's nurses were required to keep daily dosing logs 
for buprenorphine. Tr. 870.
    104. Government's Exhibit 10, Respondent's Exhibit E, and 
Respondent's Exhibit AA all contain the Respondent's records for its 
buprenorphine 8 mg tablets. Tr. 592-96, 869. A comparison of the three 
exhibits reveals several inconsistencies. For example, in June 2014, 
RE-E records that the HMC dispensed 104 mg of buprenorphine 8 mg 
tablets, whereas RE-AA records that the HMC dispensed 108 mg of 
buprenorphine 8 mg tablets, and GE-10 records that the HMC dispensed 
only 56 mg of buprenorphine 8 mg tablets. Compare RE-E, at 8, with RE-
AA, at 1, and GE-10, at 4. Likewise, in September 2014, RE-E records 
that the HMC dispensed 64 mg of buprenorphine 8 mg tablets, whereas RE-
AA records that the HMC dispensed 68 mg of buprenorphine 8 mg tablets, 
and GE-10 has no entry. Compare RE-E, at 5, with RE-AA, at 5, and GE-
10, at 4.

VIII. Remedial Measures

    105. After the 2014 inspection, Mrs. Ozumba hired an office manager 
for the HMC, Garnett, who is experienced in hospital management. Tr. 
903. Mrs. Ozumba indicated that she would also be willing to hire a 
``compliance specialist.'' Tr. 904.
    106. In 2015, Garnett returned to work at the HMC. Tr. 964. At that 
time, the HMC maintained a perpetual inventory in Excel, but the 
program did not auto-populate. Tr. 964. The HMC now still uses Excel to 
maintain its perpetual inventory. Tr. 949.
    107. The HMC still maintains a daily dispensing log for each 
patient. Tr. 951. The HMC's nurses also conduct a physical inventory 
every day and record the results on forms like RE-X. Tr. 950-52, 965. 
The data from this daily inventory is entered into the perpetual 
inventory using a software program called ``Methware.'' Tr. 952, 966. 
The HMC's perpetual inventory keeps track of the beginning balance, 
amount dispensed, new receipts, any spillage, and ending balance. Tr. 
953-54. After each daily entry is entered into the ``Methware'' 
program, the information in that entry cannot be changed. Tr. 967.

[[Page 42156]]

ANALYSIS

I. Applicable Law

    To receive and maintain a DEA COR, a narcotic treatment program 
must ``comply with standards established by the Attorney General 
respecting (i) security of stocks of narcotic drugs for such treatment, 
and (ii) the maintenance of records (in accordance with section 827 of 
this title) . . . .'' 21 U.S.C. 823(g)(1)(B) (2012).\54\ A narcotic 
treatment program's DEA COR ``may be suspended or revoked . . . upon a 
finding that the registrant has failed to comply with any standard 
referred to in section 823(g)(1) of this title.'' 21 U.S.C. 824(a) 
(emphasis added). Reading these two provisions of the Controlled 
Substances Act together, a narcotic treatment program's DEA COR may be 
suspended or revoked because of any failure to maintain: (1) the 
physical security of controlled substances; or (2) proper records. 21 
U.S.C. 823(g)(1)(B), 824(a); see Turning Tide, Inc., 81 Fed. Reg. 47411 
(2016).\55\ As Turning Tide discussed in detail, the DEA need not 
analyze the public interest factors when deciding whether revocation of 
a narcotic treatment program's registration is appropriate. Turning 
Tide, 81 Fed. Reg. at 47412-13 (examining the statutory construction of 
21 U.S.C. 823(g)(1) in comparison with every other category of 
registration set forth in Section 823). The DEA ``will not hesitate to 
revoke the registration of a n[a]rcotic treatment program that fails to 
meet its statutory and regulatory obligations to provide adequate 
security and recordkeeping.'' Queens County Med. Soc'y Drug Line, 50 
Fed. Reg. 2098, 2100 (1985).
---------------------------------------------------------------------------

    \54\ Before and during the hearing, I asked both parties to 
state their positions concerning whether a public interest analysis 
applied to this case. See Tr. 21-24; see also Tr. 1077-78; ALJ-25. 
The Government argued that a public interest analysis does not 
apply. Tr. 23. The Respondent, however, argued that a public 
interest analysis should apply, and that the factors to be 
considered should include: the HMC's service towards a low-income 
demographic; the HMC's compliance with state laws; and the HMC's 
general history of compliance with controlled substance laws. Tr. 
24. The OSC specifically alleges that the Respondent's COR should be 
revoked under 21 U.S.C. 824(a). However, because the Government 
stated at the beginning of the hearing that it did not believe that 
a public interest analysis applied in this case, and the OSC also 
cites 21 U.S.C. 823(g), the Respondent was on notice that the 
Government would argue in favor of revocation under 21 U.S.C. 823.
    \55\ The decision in Turning Tide was not published in the 
Federal Register until after the conclusion of the hearing in this 
case.
---------------------------------------------------------------------------

    A narcotic treatment program's registration may be revoked if the 
narcotic treatment program fails to keep its records as required by 
federal regulations. 21 U.S.C. 824(a), 823(g)(1)(B); see, e.g., Herbert 
Berger, M.D., 52 Fed. Reg. 17645, 17645-46 (1987). In this case, the 
Government alleged that the HMC committed several recordkeeping 
violations related to: (1) receipt and dispensation records of 
controlled substances; (2) 222 Forms; (3) retrievable records; (4) 
biennial and buprenorphine inventories; and (5) controlled substance 
variances. Additionally, under 21 U.S.C. 824(g), narcotic treatment 
programs are required to ``maintain security of stocks of narcotic 
drugs.'' Queens County, 50 Fed. Reg. at 2098. In this case, the 
Government alleged that the Respondent failed to maintain adequate 
physical security of its controlled substances.

A. Receipt and Dispensation Records

    A narcotic treatment program must ``maintain, on a current basis, a 
complete and accurate record of each substance manufactured, imported, 
received, sold, delivered, exported, or otherwise disposed of.'' 21 
C.F.R. 1304.21(a); see 21 U.S.C. 827(a)(3). These records must detail, 
among other things: (1) the types and quantities of controlled 
substances received and dispensed; (2) the names and addresses of the 
persons who receive controlled substances; (3) the dates of dispensing; 
and (4) the names or initials of the persons who dispense or administer 
controlled substances. 21 C.F.R. 1304.22(c).
    Further, narcotic treatment programs must record the controlled 
substances ``administered in the course of maintenance or 
detoxification treatment of an individual.'' 21 C.F.R. 1304.03(d). 
Specifically, narcotic treatment programs must record, in a dispensing 
log for each controlled substance, the following information:
    (1) Name of substance;
    (2) Strength of substance;
    (3) Dosage form;
    (4) Date dispensed;
    (5) Adequate identification of patient (consumer);
    (6) Amount consumed;
    (7) Amount and dosage form taken home by patient; and
    (8) Dispenser's initials.
    Id. 1304.24(a)-(b).

B. 222 Forms

    A registrant must record the quantity of controlled substances 
purchased, along with the dates of receipt of the substances, on a copy 
of a 222 Form. 21 C.F.R. 1305.13(e). In reading the plain language of 
the regulation, the Agency recently determined that incomplete forms 
alone could not prove a regulatory violation; instead, it required 
additional proof that the purchaser actually had an obligation, 
triggered by the receipt of the ordered substances, to complete the 
forms, but neglected to do so. Superior Pharmacy I & Superior Pharmacy 
II, 81 Fed. Reg. 31310, 31338 (2016).\56\ In other words, the 
Government must prove that the registrant actually received the ordered 
controlled substances, but failed to notate it on the 222 Form. This 
interpretation was reaffirmed by the Agency in Hills Pharmacy, L.L.C., 
81 Fed. Reg. 49816, 49842-43 (2016). Additionally, the registrant must 
maintain Copy 3 of each executed 222 Form separately from all other 
records of the registrant and make available for inspection for two 
years. 21 C.F.R. 1305.17(a), (c).
---------------------------------------------------------------------------

    \56\ Superior Pharmacy was published in the Federal Register on 
May 18, 2016, before the conclusion of the hearing in this case.
---------------------------------------------------------------------------

    Generally, only DEA registrants ``may obtain and use DEA Form 222 
(order forms) or issue electronic orders for [controlled] substances.'' 
21 C.F.R. 1305.04(a). This rule has a narrow exception: a DEA 
registrant may authorize another person to execute 222 Forms on the 
registrant's behalf by properly executing a power of attorney. Id. 
1305.05(a). The power of attorney document must be preserved, 
``available for inspection,'' id., and ``executed by the person who 
signed the most recent application for DEA registration,'' id. 
1305.05(d).

C. Readily Retrievable Records

    A registrant's records must be readily retrievable. Id. 
1304.04(f)(1) and (2) (requiring narcotic treatment programs to 
maintain records for Schedule II substances separately from all other 
records, and records for Schedules III, IV, and V controlled substances 
either separately or in ``such form that the information required is 
readily retrievable''); see id. 1304.03(e) (requiring mid-level 
practitioners to maintain readily retrievable records). Required 
records and inventories ``must be kept by the registrant and be 
available, for at least 2 years from the date of such inventory or 
records, for inspection and copying by authorized employees of the 
Administration.'' Id. 1304.04(a). The DEA defines ``readily 
retrievable'' to mean:

    that certain records are kept by automatic data processing systems 
or other electronic or mechanized recordkeeping systems in such a 
manner that they can be separated out from all other records in a 
reasonable time and/or records are kept on which certain items are 
asterisked, redlined, or in some other manner visually identifiable

[[Page 42157]]

apart from other items appearing on the records.

    Id. 1300.01(b). The DEA ``does not require that records be 
`instantaneously produced.''' Edmund Chein, M.D., 72 Fed. Reg. 6580, 
6593 (2007). The records must be retrievable in a ``reasonable time.'' 
Id. In Chein, the DEA briefly discussed and interpreted the definition 
of ``reasonable time:''

    While what constitutes ``a reasonable time'' necessarily depends on 
the circumstances, under normal circumstances[,] if a practice is open 
for business, it should be capable of producing a complete set of 
records within several hours of the request. In this case, I conclude 
that on the second visit, the clinic's provision of the records within 
two to three hours complied with the regulation but barely so. To allow 
a registrant an even greater period of time to produce the records 
would create an incentive for those who are engaged in illegal activity 
to obstruct investigations by stalling for time in the hopes that DEA 
personnel would eventually give up and leave.

    Id. The DEA has also noted that ``readily retrievable'' means 
producible ``upon demand of those DEA officials charged with conducting 
inspections.'' Jeffrey J. Becker, D.D.S., 77 Fed. Reg. 72387, 72406 
(2012) (citations omitted); see 21 C.F.R. 1304.04(a) (requiring records 
to be maintained for two years ``for inspection and copying by 
authorized employees of the [DEA]'').

D. Biennial and Buprenorphine Inventories

    A registrant must record the quantity of each controlled substance 
it possesses. 21 C.F.R. Sec.  1304.11(c). A registrant must also 
inventory ``all stocks of controlled substances on hand at least every 
two years.'' Id. A registrant must keep all inventory records in an 
accessible form for at least two years after the date of the inventory 
``for inspection and copying by authorized employees of the [DEA].'' 
Id. Sec.  1304.04(a); see id. Sec.  1304.04(f). Each inventory must 
include ``a complete and accurate record of all controlled substances 
on hand on the date the inventory is taken.'' Id. Sec.  1304.11(a). 
This requirement applies to all types of controlled substances that a 
registrant possesses. See id. Notably, inventories of a narcotic 
treatment program's Schedule II controlled substances must be 
``maintained separately from all of the records of the registrant.'' 
Id. Sec.  1304.04(f)(1).

E. Variances

    Controlled substance inventories must ``contain a complete and 
accurate record of all controlled substances on hand on the date the 
inventory is taken.'' Id. Sec.  1304.11(a) (emphasis added). Physical 
inventory counts of controlled substances must be accurate. See id. 
Sec.  1304.11(e)(6). Repeated variances in controlled substance 
inventories ``manifest[] a casual indifference to [a registrant's] 
obligation to . . . properly account for its supply of narcotic 
drugs.'' See Queens County, 50 Fed. Reg. at 2100. Moreover, the 
inability to account for a significant number of dosage units creates a 
grave risk of diversion. Med. Shoppe-Jonesborough, 73 Fed. Reg. 364, 
367 (2008); see also Paul H. Volkman, M.D., 73 Fed. Reg. 30630, 30644 
(2008) (finding that ``a registrant's accurate and diligent adherence 
to this obligation is absolutely essential to protect against the 
diversion of controlled substances''), pet. for review denied, 567 F.3d 
215, 225 (6th Cir. 2009).

F. Physical Security of Controlled Substances

    Narcotic treatment programs are required to maintain physical 
security controls for controlled substances as set forth in 21 C.F.R. 
Sec.  1301.72. The Respondent kept its Schedule II controlled 
substances in a safe. A safe used to store Schedule II controlled 
substances must be

equipped with an alarm system which, upon attempted unauthorized 
entry, shall transmit a signal directly to a central protection 
company or a local or State police agency which has a legal duty to 
respond, or a 24-hour control station operated by the registrant, or 
such other protection as the Administrator may approve.

21 C.F.R. Sec.  1301.72(a)(1)(iii). Section 1301.72 does not require a 
narcotic treatment program to install a panic button in its dispensing 
room. See also id. Sec.  1301.74(l) (same).

II. The Respondent's Alleged Violations

A. The 1997 Inspection

    The Government alleged that, at the time of the 1997 inspection, 
the HMC had committed four violations: (1) failing to record the amount 
of controlled substances received; (2) failing to keep 222 Forms; (3) 
failing to properly maintain daily dispensing records; and (4) having 
variances in its controlled substances supply. ALJ-1, at 1-2. I find 
that the Government demonstrated that the HMC committed only the fourth 
violation.
    A majority of the Government's evidence regarding the 1997 
inspection related to the fourth allegation. The Government entered 
evidence showing that the HMC had a shortage of 16,144 mg of methadone 
tablets and a shortage of 411 mg/mL of liquid methadone. GE-34-36. Mrs. 
Ozumba admitted that there was a variance in her controlled substance 
inventory at the time of the 1997 inspection. Tr. 685, 687, 693, 929; 
see GE-37; Tr. 407-09, 675-78. Based upon the Government's undisputed 
evidence, I find that the HMC had a shortage of methadone tablets and 
liquid methadone at the time of the 1997 inspection. Therefore, the 
Government's allegation to that effect is SUSTAINED by a preponderance 
of the evidence, and weighs in favor of revoking the Respondent's COR.
    However, the Government did not offer any evidence demonstrating 
that the HMC committed the first three alleged violations. The 
Government argued that GE-33-37 showed that the HMC committed the first 
three alleged violations. See ALJ-27, at 3. However, these exhibits 
only offer evidence supporting findings that: (1) the HMC had a 
variance; and (2) that variance was due to some unidentified deficiency 
in the HMC's records. See GE-34-37. The Government did not enter any 
evidence about the HMC's receipt records or 222 Forms from the 1997 
inspection. Therefore, the Government's allegations that the HMC failed 
to record the amount of controlled substances received and failed to 
keep 222 Forms are NOT SUSTAINED.
    Likewise, the Government did not discuss any inadequacies in the 
HMC's dispensing record. The Government did not enter any evidence 
specifically showing that the HMC's daily dispensing records were 
inadequate at the time of the 1997 inspection. There are numerous 
possible explanations for how the HMC could have had a shortage of 
liquid methadone and methadone diskettes. One possible explanation is 
that the HMC failed to accurately record its dispensing in its daily 
dispensing log. However, that is only a possible explanation, supported 
by inference rather than substantial evidence. The Government did not 
allege that, generally, the HMC's receipt and dispensing logs were 
inaccurate; rather, it alleged that, specifically, the HMC failed to 
properly maintain daily dispensing logs. Therefore, the Government's 
allegation that the Respondent failed to properly maintain daily 
dispensing records in 1997 is NOT SUSTAINED.

B. The 1999 Inspection

    The Government alleged that, at the time of the 1999 inspection, 
the HMC

[[Page 42158]]

committed two violations: (1) failing to maintain complete and accurate 
records of Schedule II controlled substances received and dispensed; 
and (2) having variances in its controlled substances supply. ALJ-1, at 
2. I find that the Government showed, by a preponderance of the 
evidence, that the HMC committed both violations.
    The Government entered a closing inventory and a computation chart 
from the 1999 inspection, which showed that the HMC had an overage of 
100,810 mg of methadone diskettes and a shortage of 2,591 mg of liquid 
methadone. See GE-29-30; Tr. 37, 40; see also GE-31; Tr. 398-401, 411-
13. These documents were corroborated by the Unit Chief's credible 
testimony that she personally recalled an overage of one of the 
Respondent's controlled substances and a deficit of the other. Tr. 30-
31. While Mrs. Ozumba signed an MOU on behalf of the HMC in March of 
2000, which cited the HMC for its failure to maintain a complete and 
accurate record of Schedule II controlled substances received and 
distributed, the MOU did not clearly admit or deny that there was a 
variance at the time of the 1999 inspection. See Tr. 685, 689, 696-98; 
see also GE-32. At the hearing, Mrs. Ozumba accepted responsibility for 
the variance found in 1999, and then denied responsibility for it. See 
Tr. 685, 689. She subsequently went on to specifically deny having a 
variance of 100,810 mg of diskettes in 1999, stating that she has never 
had a variance that large. Tr. 696-97; see GE-30. I find that the 
closing inventory, computation chart, and the Unit Chief's testimony, 
when considered cumulatively, show that the HMC had significant 
variances in its controlled substances supply at the time of the 1999 
inspection. Therefore, the Government's allegation to that effect is 
SUSTAINED. By logical inference, because the HMC had a variance in its 
controlled substance supply, the HMC's records were not accurate.\57\ 
Therefore, the Government's allegation that the HMC failed to keep 
complete and accurate records of the Schedule II controlled substances 
it received and dispensed is SUSTAINED, and weighs in favor of revoking 
the Respondent's COR.
---------------------------------------------------------------------------

    \57\ Unlike the Government's specific recordkeeping allegation 
concerning the 1997 inspection, the 1999 allegation concerning 
recordkeeping errors is a general allegation.
---------------------------------------------------------------------------

C. The 2006 Inspection

    The Government alleged that, at the time of the 2006 inspection, 
the HMC committed two violations: (1) failing to keep and maintain 
daily dispensing logs of controlled substances; and (2) having 
variances in its controlled substances supply. ALJ-1, at 2. I find that 
the Government showed, by a preponderance of the evidence, that the HMC 
committed only the second violation.
    The Government entered a closing inventory and computation chart 
from the 2006 inspection showing that the HMC had a shortage of 40 mg 
\58\ of methadone tablets and an overage of 2,954 mg of liquid 
methadone. GE-23-24; Tr. 224. The methadone diskettes variance did not 
raise concerns that the HMC was diverting methadone tablets; however, 
the liquid methadone variance could not be accounted for by overfilling 
and was not a small or expected variance. Tr. 220-21, 225, 230. 
Moreover, while Mrs. Ozumba provided DEA with an explanation regarding 
the variance for the methadone diskettes, which resulted in a reduction 
of the variance to 40 mg, she did not provide any explanation for the 
overage of liquid methadone. Tr. 251. Furthermore, the Group Supervisor 
testified that she personally observed the count of the HMC's 
controlled substances, that the count was recorded in the computation 
chart, and that the computation chart was accurate. Tr. 205-11. The 
Group Supervisor also specifically mentioned in her testimony that 
there was a variance, and Mrs. Ozumba specifically acknowledged that 
there was a variance. Tr. 220, 250-51, 930; see Tr. 699-702. It is 
important to note that Mrs. Ozumba's acceptance of responsibility for 
the variance discovered at the time of the 2006 inspection was unclear. 
She acknowledged the variance, but believed that it had been resolved 
by her letter explaining the gap in the monthly perpetual summary 
records. Tr. 930. I find that the closing inventory, computation chart, 
Group Supervisor's testimony, and Mrs. Ozumba's ambiguous acceptance of 
responsibility, when considered cumulatively, show that the HMC had 
variances in its controlled substances supply at the time of the 2006 
inspection. Therefore, the Government's allegation to that effect is 
SUSTAINED, and weighs in favor of revoking the Respondent's COR.
---------------------------------------------------------------------------

    \58\ See Tr. 251 (indicating that this amount is the equivalent 
of one methadone tablet).
---------------------------------------------------------------------------

    However, the Government did not enter any evidence specifically 
showing that the HMC's daily dispensing records were inadequate at the 
time of the 2006 inspection. In fact, the record evidence establishes 
that the HMC produced all of the forms or documents requested by the 
DEA in 2006. Tr. 630. There are numerous possible explanations for how 
the HMC could have had a shortage of one methadone diskette and an 
overage of liquid methadone. One possible explanation is that the HMC 
failed to accurately record its dispensing in its daily dispensing log. 
However, that is only a possible explanation, supported by inference 
rather than substantial evidence. The only mention of alleged errors in 
the daily dispensing records was in the letter of admonition sent to 
the HMC, GE-26, which, standing alone, does not prove that the HMC's 
dispensing logs were errant. The Government has not entered evidence 
showing any specific defects in the HMC's dispensing logs, and has not 
entered copies of the HMC's dispensing logs to support its allegation. 
In fact, the evidence before me indicates that the HMC, up until the 
time of the 2006 inspection, kept meticulous daily dispensing records. 
GE-27; Tr. 626-28, 878. The Government failed to show, by a 
preponderance of the evidence, that the HMC failed to maintain daily 
dispensing records. Therefore, the Government's allegation to that 
effect is NOT SUSTAINED.

D. The 2011 Inspection

    The Government alleged that, at the time of the 2011 inspection, 
the HMC had eight violations: (1) failing to provide records in a 
timely manner; (2) failing to conduct a biennial inventory; (3) failing 
to preserve 222 Forms for two years; (4) failing to maintain complete 
and accurate records of each controlled substance received; \59\ (5) 
allowing an unauthorized person to sign 222 Forms; (6) failing to 
execute a power of attorney to allow an unauthorized person to sign 222 
Forms; (7) failing to ``completely and accurately complete'' daily 
dispensing logs; and (8) failing to maintain adequate physical security 
of controlled substances. ALJ-1, at 2. I find that the Government 
showed, by a preponderance of the evidence, that the HMC committed the 
first, second, third, part of the fourth, and eighth violations.
---------------------------------------------------------------------------

    \59\ The Government failed to distinguish between 222 Forms, 
discussed in the third allegation, and receipt records, discussed in 
the fourth allegation. Therefore, I consider the third allegation to 
address whether the 222 Forms were properly preserved and the fourth 
allegation to address whether the 222 Forms were properly completed.
---------------------------------------------------------------------------

    There is significant disagreement between the parties over whether 
the HMC produced its records in a timely manner during the 2011 
inspection. I find that the HMC did not produce these records ``upon 
demand,'' Becker, 77 Fed. Reg. at 72406, or within a ``reasonable 
time,'' Chein, 72 Fed. Reg. at 6593. The HMC had several days to locate 
the required documents and make

[[Page 42159]]

them available for inspection, and still failed to do so. ``To allow a 
registrant an even greater period of time to produce the records would 
create an incentive . . . to obstruct investigations by stalling for 
time in the hopes that DEA personnel would eventually give up and 
leave.'' Chein, 72 Fed. Reg. at 6593.
    The Respondent contends that it provided all required documents to 
the Case Agent, who refused to look at those documents for an unknown 
reason. ALJ-27, at 4-5. I do not find this position, supported by Mrs. 
Ozumba's testimony, Tr. 722-23, 887, 890, 1012 (Dr. Ozumba), to be 
credible for three reasons. First, it makes little sense that DEA 
investigators would go to the HMC on two separate days to conduct an 
investigation, and on the second day come back into the HMC after 
having left, only to refuse to examine documents that Mrs. Ozumba 
claims were provided to the investigators. Second, the Case Agent 
credibly testified that the Ozumbas did not provide the necessary 
documentation, despite the DEA investigators' attempts to work with the 
Ozumbas for over two hours. Third, Mrs. Ozumba felt it necessary to 
enter into a settlement agreement with the United States Attorney's 
Office when the HMC was civilly charged for its alleged recordkeeping 
violations. See Tr. 1055-57.
    The Government attempts to establish liability on the part of the 
HMC through the use of the ``Stipulated Agreement'' Mrs. Ozumba signed 
on March 26, 2013. GE-7; ALJ-27, at 6-7. Based upon the results of the 
2011 inspection, the DEA pursued a civil fine from the Respondent. Tr. 
291. The United States Attorney's Office handled the case against the 
Respondent, which dealt solely with alleged recordkeeping violations. 
Tr. 1055. The HMC eventually negotiated a settlement with the United 
States Attorney's Office. Tr. 1056-57.
    Federal Rule of Evidence 408 prohibits the use of a settlement 
agreement to prove or disprove the validity of a claim.\60\ Fed. R. 
Evid. 408(a). ``It is well-established that statements made for 
purposes of settlement negotiations are inadmissible, and Rule 408 of 
the Federal Rules of Evidence extends the exclusion to completed 
compromises when offered against the compromiser.'' Playboy Enters., 
Inc. v. Chuckleberry Publ'g, Inc., 486 F. Supp. 414, 423 n.10 (S.D.N.Y. 
1980) (citation omitted). Because settlement agreements may not be used 
to establish liability, the Government cannot rely on the Stipulated 
Agreement to prove that the Respondent committed recordkeeping 
violations in 2011. Moreover, even if Federal Rule of Evidence 408 did 
not apply, the Stipulated Agreement specified that it ``does not 
constitute evidence or an admission by any person or entity, and shall 
not be construed as an admission by any person or entity, with respect 
to any issue of law or fact.'' GE-7, at 7.
---------------------------------------------------------------------------

    \60\ Although the Federal Rules of Evidence do not govern DEA 
administrative hearings, they can provide useful guidance ``where 
they do not conflict with agency regulations.'' Rosalind A. Cropper, 
M.D., 66 Fed. Reg. 41040, 41041 (2001) (citation omitted).
---------------------------------------------------------------------------

    Settlement agreements, however, may be admitted for a purpose other 
than to establish liability. Fed. R. Evid. 408(b); see Manko v. United 
States, 87 F.3d 50, 54-55 (2d Cir. 1996). Therefore, use of the 
Stipulated Agreement in this case has been limited to establishing that 
such an agreement existed between the HMC and the DEA and that the HMC 
knew of alleged recordkeeping violations found in 2011.
    Mrs. Ozumba did not provide any of the HMC's records to the DEA on 
the first day of the inspection, and she did not provide any records 
for several hours on the second day of the inspection. Tr. 280-81. Even 
when Dr. Ozumba brought the keys to unlock the dosing room on day two, 
the HMC did not produce any 222 Forms from the audit period, even 
though the HMC should have had five 222 Forms. Tr. 306-14. The HMC also 
did not produce a biennial inventory. Tr. 477. During the inspection, 
the HMC was even unable to produce the records that the DEA needed to 
conduct an audit. Tr. 477. Considering these circumstances in their 
totality, I find that the HMC did not, at the time of the inspection, 
provide all of the required documents to the DEA investigators. Because 
the HMC was unable to produce some of its records over the course of 
several days during the 2011 inspection, the Government's allegation 
that the Respondent failed to provide records in a timely manner is 
SUSTAINED, and weighs in favor of revoking the Respondent's COR.
    I also find that the HMC did not conduct a biennial inventory. 
Although the DEA investigators requested such an inventory from the 
HMC, the HMC did not provide one. Tr. 477. Because I find the Case 
Agent's testimony on this point to be credible for the reasons 
discussed supra, the Government's allegation that the Respondent did 
not conduct a biennial inventory is SUSTAINED, and weighs in favor of 
revoking the Respondent's COR.
    The HMC did not produce any of its 222 Forms from the audit period 
upon the DEA investigators' request, even though the HMC should have 
had five 222 Forms from that period. Tr. 306-14; see GE-6, at 1-5. 
Because I find the Case Agent's testimony on this point to be credible 
for the reasons discussed supra, the Government's allegation that the 
Respondent did not preserve its 222 Forms is SUSTAINED, and weighs in 
favor of revoking the Respondent's COR. However, because the Respondent 
did not provide any 222 Forms, the Government cannot show that the HMC 
failed to properly complete such forms. Moreover, the Government did 
not enter any evidence demonstrating that the HMC failed to properly 
complete its receipt records. Therefore, the Government's allegation 
that the Respondent failed to properly complete 222 Forms is NOT 
SUSTAINED.
    The Government was, however, able to obtain the Supplier's Copy of 
the HMC's 222 Forms from the audit period, which are presented in GE-6. 
Tr. 312-15. The signatures on these forms are not legible.\61\ The 
Government did not offer any evidence regarding whose signature 
appeared on the forms in GE-6. See Tr. 309. Moreover, it is unclear 
from the record whether Dr. Ozumba or Mrs. Ozumba had e-signature 
authority for the Respondent during the 2011 inspection's audit period. 
See Tr. 279. These were the only 222 Forms entered into evidence from 
the audit period. Because it is unclear who signed the forms, it is 
equally unclear whether such person was authorized to sign 222 Forms. 
Therefore, the Government's allegations that the Respondent allowed an 
unauthorized person to sign 222 Forms, and failed to execute a power of 
attorney to allow such person to do so, are both NOT SUSTAINED.\62\
---------------------------------------------------------------------------

    \61\ A layman's review of the signatures, however, finds them to 
share similarities with Mrs. Ozumba's signature. Compare GE-6, with 
GE-3, 27, 32, 33.
    \62\ Importantly, Franks did testify that she was allowed to 
sign 222 Forms on behalf of the Respondent. Tr. 153. Franks did not 
testify as to when she was allowed to do so. However, the evidence 
shows that Franks signed several 222 Forms after the 2011 
inspection. See RE-BB, at 1-6, 8; Tr. 155-57. Therefore, I find that 
Franks' testimony, standing alone, does not constitute substantial 
evidence that an unauthorized person was signing 222 Forms during 
the audit period of the 2011 inspection.
---------------------------------------------------------------------------

    The record indicates that the HMC did keep daily dispensing logs. 
Franks testified that she recorded into a computer file the amount of 
medication she dispensed each day, printed out that information, and 
put that information in a binder that was stored in the medication 
room. Tr. 163-71; see, e.g., RE-G-H. Additionally, the record

[[Page 42160]]

shows that the Respondent produced its dispensing logs to the DEA upon 
the investigators' request, but the Government did not introduce into 
evidence any of those logs concerning the one-year audit period. Tr. 
291-92, 477, 751, 886.
    The HMC offered evidence of the type of dispensing records it was 
maintaining around the time of the 2011 inspection. Respondent's 
Exhibit G contains the daily dispensing logs for methadone diskettes 
from October 1, 2011, to December 30, 2011. Tr. 852-53. Likewise, RE-H 
contains the daily dispensing logs for liquid methadone from October 
14, 2011, to December 31, 2011. Tr. 854-55. Most of the records 
contained in RE-G are from outside of the 2011 inspection's audit 
period, and the records do not show the actual pharmaceutical name of 
the drug dispensed. Tr. 854, 920-24. Rather, they show that ``DRT'' 
tablets were dispensed, and they also record the strength in 
milligrams. RE-G. All of the records contained in RE-H are from outside 
of the 2011 inspection's audit period, and the records do not show the 
actual pharmaceutical name or strength of the drugs represented 
therein. Tr. 854, 920-24. Rather, they show that liquid ``LMT'' was 
dispensed and the dosage dispensed in milligrams. RE-H; Tr. 854, 923-
24.
    Here, the Government has failed to present substantial evidence to 
show that the HMC failed to ``completely and accurately complete the 
daily dispensing logs.'' ALJ-1, at 2. In fact, the Government presented 
no documentary evidence from the audit period to document the alleged 
failure. At the hearing, the Government attempted to demonstrate 
shortcomings in RE-G and RE-H because they did not list the 
pharmaceutical name of the drugs dispensed or the strength. Tr. 920-24. 
I find the Government's questioning unconvincing for several reasons. 
First, Mrs. Ozumba testified that RE-G and RE-H were not the only 
dosing sheets; they represent a general daily dispensing sheet, and the 
HMC also used an individualized sheet. Tr. 922. Second, there is no 
requirement in 21 C.F.R. 1304.24(a) that the dispensing log 
specifically list the pharmaceutical name. Here, it is absolutely clear 
that the DEA investigators understood the terms DRT and LMT, and in 
fact, Mrs. Ozumba testified that she sometimes ordered liquid methadone 
using the term LMT. Tr. 919-20. Third, it is clear from the record that 
the HMC only ordered one strength of each form of methadone it 
used,\63\ and the DEA investigators were well aware of that. Tr. 924-
25. Finally, the strength of the dosage of the DRT is contained in the 
general dispensing sheets in RE-H, which lists the dosage in 
milligrams. See, e.g., Tr. 917-18. Since the administrative record 
contains no dosing sheets for the audit period of the 2011 inspection, 
with the exception of pages one through eleven of RE-G, and since I 
find that those pages generally comply with the requirements of 21 
C.F.R. 1304.24(a), I find that the Government has not met its burden in 
demonstrating that the HMC failed to completely and accurately complete 
the daily dispensing logs. Therefore, the Government's allegation that 
the Respondent failed to ``completely and accurately complete'' daily 
dispensing records is NOT SUSTAINED.
---------------------------------------------------------------------------

    \63\ For methadone diskettes, the HMC ordered 40 mg, and for 
liquid methadone, the HMC ordered 1 mg/mL. Tr. 924-25.
---------------------------------------------------------------------------

    Finally, concerning the 2011 inspection, the HMC's security system 
was not working properly at the time of the inspection because the 
security company did not receive signals from various security zones in 
the clinic. Tr. 288-89, 532-33. While the HMC corrected these security 
issues within a week of the inspection, Tr. 290-91, 533, 739-40, 901, 
the regulations require a narcotic treatment program's controlled 
substance safe to be ``equipped with an alarm system which, upon 
attempted unauthorized entry, shall transmit a signal directly'' to its 
security company. 21 C.F.R. 1301.72(a)(1)(iii). The evidence shows that 
the HMC's system did not transmit this signal directly during the 2011 
inspection. Therefore, the HMC's system did not comply with the 
requirements of 21 C.F.R. 1301.72, and the Government's allegation that 
the Respondent failed to maintain adequate physical security of its 
controlled substances is SUSTAINED,\64\ and weighs in favor of revoking 
the Respondent's COR.
---------------------------------------------------------------------------

    \64\ The Government discussed the fact that the HMC's dosing 
room did not have a panic button during the 2011 inspection. Tr. 
289, 533. However, narcotic treatment programs are not required by 
federal regulations to have panic buttons in their dosing rooms. See 
generally 21 C.F.R. 1301.72; see also id. Sec.  1301.74(l); Tr. 601-
02. Thus, to the extent that the Government alleges that the HMC 
failed to maintain physical security of its controlled substances by 
not installing panic buttons in its dosing room, that allegation is 
NOT SUSTAINED.
---------------------------------------------------------------------------

E. The 2014 Inspection

    The Government alleged that, at the time of the 2014 inspection, 
the Respondent had committed eight violations: (1) failing to maintain 
complete and accurate records of controlled substances received, sold, 
and delivered; (2) failing to conduct a biennial inventory; (3) failing 
to conduct an inventory of buprenorphine; (4) failing to preserve 222 
Forms for two years; \65\ (5) failing to indicate the date of receipt 
of 222 Forms; (6) failing to execute a power of attorney authorizing an 
alternate person to sign 222 Forms; (7) failing to completely and 
accurately complete daily dispensing logs; and (8) having a variance in 
its controlled substance inventory. ALJ-1, at 3. I find that the 
Government showed, by a preponderance of the evidence, that the HMC 
committed the first, third, fourth, sixth, and eighth violations.
---------------------------------------------------------------------------

    \65\ In its case, the Government failed to distinguish between 
receipt records, discussed in the first allegation, and 222 Forms, 
discussed in the fourth allegation. Therefore, I consider the first 
allegation to address whether the 222 Forms were properly completed, 
and the fourth allegation to address whether the 222 Forms were 
properly preserved.
---------------------------------------------------------------------------

    The Government entered into evidence a closing inventory and a 
computation chart from the 2014 inspection, which showed that the HMC 
had an overage of 1,200,050 dosage units of methadone diskettes, an 
overage of 500,251 dosage units of liquid methadone, a shortage of 30 
buprenorphine 2 mg tablets, and a shortage of 175 buprenorphine 8 mg 
tablets. GE-9, 11; Tr. 375-80. I find that the closing inventory, 
computation chart, and the testimonies of McSwain and the Case Agent, 
when considered cumulatively, show that the HMC had variances in its 
controlled substances supply at the time of the 2014 inspection. By 
logical inference then, because the Respondent had a variance in its 
controlled substance supply, the Respondent's records were not 
accurate, particularly since the overages and shortages were calculated 
using the HMC's receipt records.\66\ Tr. 379. Therefore, the 
Government's allegations that the Respondent failed to maintain 
complete and accurate records of controlled substances received, sold, 
and delivered, and that there was a variance in the HMC's controlled 
substance inventory, are SUSTAINED, and weigh in favor of revoking the 
Respondent's COR.
---------------------------------------------------------------------------

    \66\ Unlike the Government's specific recordkeeping allegation 
concerning the 1997 inspection, the 2014 allegation concerning 
recordkeeping errors is a general allegation.
---------------------------------------------------------------------------

    The Respondent did not provide the DEA with a biennial inventory. 
Tr. 329, 521. However, the Respondent provided the DEA with separate 
annual inventories for methadone diskettes and liquid methadone, as 
well as for 2 mg and 8 mg buprenorphine. GE-10, at 1-4; Tr. 368-70, 
584. Notably, the regulations require a registrant to

[[Page 42161]]

inventory its controlled substances ``at least every two years.'' 21 
C.F.R. 1304.11(c) (emphasis added). If a registrant counts its 
controlled substances every day and records that count in a manner that 
satisfies the Code of Federal Regulations' biennial inventory 
requirements, that daily inventory is considered to be an adequate 
biennial inventory. Tr. 246. Further, there is consistent credible 
testimony in the record that the dispensing nurses conducted a daily 
inventory of the controlled substances at the HMC. See Finding of Fact 
4. Thus, the annual inventory provided to the DEA investigators would 
have been a sufficient inventory. The Government did not allege that 
the HMC's inventory was inadequate; the Government only alleged that 
the HMC failed to conduct a biennial inventory. The HMC presented an 
inventory to the DEA investigators, and testimony supports that actual 
inventories were frequently conducted; therefore, the Government's 
allegation that the Respondent failed to conduct a biennial inventory 
is NOT SUSTAINED.\67\
---------------------------------------------------------------------------

    \67\ The Respondent also provided evidence that it created a 
monthly inventory generated from the daily dosing records. Tr. 114-
15, 129. However, the record evidence indicates that this inventory 
did not involve an actual physical count of the Respondent's 
controlled substances on hand. See Tr. 114-15, 129. For an inventory 
to satisfy the requirements of 21 C.F.R. 1304.11, the inventory must 
record a count of ``all controlled substances on hand on the date 
the inventory is taken.'' 21 C.F.R. 1304.11(a). The monthly 
``inventories'' do not satisfy this requirement and are properly 
considered to be monthly summaries of the dispensing logs, rather 
than actual inventories under the regulations.
---------------------------------------------------------------------------

    The Government also alleged that the HMC failed to conduct an 
inventory of buprenorphine. The HMC did not produce an initial 
inventory for buprenorphine. Tr. 456. Rather, the Case Agent saw 
McSwain attempting to create a buprenorphine inventory, at Mrs. 
Ozumba's direction, during the 2014 inspection to present to the DEA 
investigators. Tr. 92-94, 326. The Case Agent told McSwain to print off 
what she had without editing anything further. Tr. 326. These print-
outs are pages three and four of GE-10. The Code of Federal 
Regulations, however, requires that an inventory of a controlled 
substance be taken on the date that a registrant ``first engages in the 
. . . dispensing of controlled substances.'' 21 C.F.R. 1304.11(b). 
Comparing the timeframes reflected on pages three and four of GE-10 
with the timeframes reflected on page one of RE-E, and the dates 
reflected in RE-AA, and considering McSwain's and the Case Agent's 
testimonies, I find that the buprenorphine ``inventory'' presented to 
the DEA investigators during the inspection was not made during an 
actual physical count of the HMC's controlled substances and, 
therefore, was not an inventory under 21 C.F.R. 1304.11(b). Therefore, 
the Government's allegation that the Respondent failed to conduct an 
inventory of buprenorphine is SUSTAINED, and weighs in favor of 
revoking the Respondent's COR.
    In the fourth allegation, the Government charged that the HMC 
failed ``to preserve DEA 222 Order Forms.'' ALJ-1, at 3. In support of 
that allegation, the Government cited to 21 C.F.R. 1305.17(a). Id. 
Nowhere prior to the hearing did the Government allege that the HMC 
failed to make its 222 Forms readily available for inspection. The HMC 
provided some 222 Forms from the 2014 audit period in response to the 
request of the DEA investigators. GE-13, at 1-4; Tr. 354-55; see also 
Tr. 89, 132-33, 1043. In conducting her audit, the Case Agent prepared 
a list of 222 Forms she had received from the HMC with a list of 222 
Forms she obtained from the HMC's supplier. GE-16. On that list, the 
items in bold supposedly were not provided by the HMC to the DEA.\68\ 
While the HMC provided additional 222 Forms to DEA after the date of 
the inspection, the DEA did not include them in its audit of the HMC 
because they were received after the completion of the audit. Tr. 354, 
366-67. Nevertheless, there is one form that the Government identified, 
DEA Order form number 134110207, dated August 1, 2014, which the HMC 
has not produced. GE-16. Therefore, the Government's allegation to that 
effect is SUSTAINED, and weighs in favor of revoking the Respondent's 
COR.
---------------------------------------------------------------------------

    \68\ The Case Agent's chart contains errors. For example, it 
reports that the DEA did not receive the 222 Form dated June 24, 
2014, concerning liquid methadone and bearing DEA Order form number 
134110205. GE-16. The DEA, however, obtained that form during its 
inspection on October 14, 2014, while at the HMC. GE-13, at 3. Other 
errors are also present on the Case Agent's document. She reports 
that DEA Order form numbers 130355192, 130355182, 130355184, and 
134110205 were not provided by the HMC. GE-16. That information is 
wrong. See GE-14, at 4-7. See also RE-BB, at 24-27, for comparison.
---------------------------------------------------------------------------

    The record also establishes that the HMC submitted an incomplete 
222 Form, dated September 9, 2014, that failed to indicate the number 
of packages received or the date of receipt. GE-13, at 1; Tr. 354-55. 
However, the Government failed to submit evidence that the HMC actually 
received the ordered controlled substances and thereby failed to make a 
notation on the 222 Form.\69\ Therefore, the Government's allegation to 
that effect is NOT SUSTAINED.
---------------------------------------------------------------------------

    \69\ See Superior Pharmacy, 81 Fed. Reg. at 31338; Hills 
Pharmacy, 81 Fed. Reg. at 49842-43. The Government's exhibits do not 
contain information even from the supplier regarding whether the 
substances purchased through the (allegedly incomplete) September 9, 
2014 222 Form were shipped. Government's Exhibit 15 includes a ship 
date of September 12, 2014, but the items shipped do not match those 
listed on the HMC's September 9, 2014 222 Form. Compare GE-13, at 1, 
with GE-15.
---------------------------------------------------------------------------

    The Respondent also submitted a December 3, 2013 222 Form that bore 
Dr. Ozumba's signature, instead of Mrs. Ozumba's. GE-13, at 2; Tr. 355. 
The regulations permit only DEA registrants to issue orders for 
Schedule I and II controlled substances, unless a power of attorney 
authorizing another person to do so has been properly executed. 21 
C.F.R. 1305.04(a), 1305.05(a). The power of attorney must be issued by 
the DEA registrant. 21 C.F.R. 1305.05(a). The power of attorney must be 
retained with executed 222 Forms. Id. When Dr. Ozumba signed the 222 
Form, Mrs. Ozumba was the DEA registrant for the HMC. Tr. 327. The DEA 
requested the HMC's power of attorney forms. Tr. 96, 1043. While 
McSwain knew that a power of attorney form had been prepared, she could 
not find it. Tr. 96. Ultimately, however, Dr. Ozumba provided the Case 
Agent with two power of attorney forms. Tr. 327-29, 389-92. The first 
form was a blank power of attorney that was prepared for Dr. Orette's 
signature, but Dr. Orette was not authorized to sign a power of 
attorney on behalf of the HMC because he was not the HMC's DEA 
registrant. GE-21; Tr. 390, 598-99. The second form was a new power of 
attorney signed on the day of the inspection, which was purportedly 
signed without any witnesses, with ``C. Ozumba'' written in as the 
grantor, no name written in as the ``attorney-in-fact,'' and McSwain's 
name signed as the ``person granting power.'' GE-20; Tr. 97, 328-29, 
395-96. Even if this form had been properly executed, it did not 
authorize Dr. Ozumba to sign 222 Forms for Mrs. Ozumba, who was the 
registrant for the HMC. Therefore, the Government's allegation that the 
Respondent failed to execute a power of attorney to authorize an 
alternate person to sign 222 Forms is SUSTAINED, and weighs in favor of 
revoking the Respondent's COR.
    Finally, the Government alleged that the HMC failed to completely 
and accurately complete daily dispensing logs for the controlled 
substances it dispensed. The record demonstrates that upon request, the 
HMC provided DEA with dispensing logs from October 1, 2013 through 
October 14, 2014 for methadone diskettes, and dispensing

[[Page 42162]]

logs from September 30, 2013 through October 31, 2014 for liquid 
methadone. Tr. 105, 107, 135, 422, 456-57, 607, 847-48, 849-50, 915, 
1043-44; see RE-A-B. Using the same rationale that I applied to a 
similar allegation regarding the 2011 inspection, I find that the 
Government has not met its burden of proof with respect to the 
dispensing records contained in RE-A-B. Therefore, the Government's 
allegation that the Respondent failed to completely and accurately 
complete daily dispensing logs for methadone diskettes and liquid 
methadone is NOT SUSTAINED.
    With respect to the dispensing logs for buprenorphine, the HMC did 
not provide any during the inspection. In support of that allegation, 
the Government cited to 21 C.F.R. 1304.24(a). ALJ-1, at 3. Nowhere 
prior to the hearing did the Government allege that the HMC failed to 
make dispensing records readily available for inspection. At the 
hearing, the HMC provided for the first time the dispensing logs for 
buprenorphine. RE-AA; Tr. 461-62, 538. I find that those logs comply 
with the requirements of 21 C.F.R. 1304.24(a). I further find that the 
HMC was not on notice that it would have to respond to a charge of 
failing to have its buprenorphine dispensing logs readily available for 
inspection. CBS Wholesale Distribs., 74 Fed. Reg. 36746, 36749 (2009) 
(``One of the fundamental tenets of Due Process is that Agency must 
provide a Respondent with notice of those acts which the Agency intends 
to rely on in seeking the revocation of its registration . . . .'' 
(citations omitted)). Therefore, the Government's allegation that the 
Respondent failed to completely and accurately complete daily 
dispensing logs for buprenorphine is NOT SUSTAINED.

III. Notice of Misconduct

    The Government alleged that the HMC was given several chances to 
comply with DEA registration requirements. First, the DEA issued a 
Letter of Admonition to the HMC on May 1, 1997, detailing the 
deficiencies noted during the April 1997 inspection. Second, the DEA 
and Mrs. Ozumba entered into an MOU on March 13, 2000, wherein she 
acknowledged the HMC's violations from the December 6, 1999 inspection, 
and she agreed to comply with DEA requirements. Third, the DEA issued a 
Letter of Admonition to the HMC on September 26, 2006, based on the 
September 8 and 11, 2006 inspection. Fourth and finally, the HMC agreed 
to pay a $10,000 penalty on April 3, 2013, to settle the DEA's civil 
claims about violations discovered during the October 11 and 13, 2011 
inspection, even though the Respondent denied culpability.
    Past behavior is the best predictor of future behavior. ALRA Labs., 
Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995). A narcotic treatment 
program's history of violations is relevant when evaluating whether 
revocation is appropriate. Queens County, 50 Fed. Reg. at 2099. For 
example, in Berger, the Agency revoked a narcotic treatment program's 
registration because the program had ample notice of its recordkeeping 
violations and controlled substance variances and, yet, continued to be 
noncompliant. 52 Fed. Reg. at 17645-46. In that case, the DEA, over the 
course of eleven years, notified the registrant of its recordkeeping 
violations, discussed the violations with it, and gave it time to 
correct the violations. Id. The DEA found that the registrant 
``consistently failed to maintain complete and accurate records,'' even 
though it had ``been given every opportunity by DEA to comply with the 
regulations.'' Id. at 17645.
    Here, the record shows that the HMC has had several opportunities 
to conform its behavior and recordkeeping to federal regulatory 
requirements and has consistently failed. Time and time again, the HMC 
was notified of its failings, but has yet to demonstrate that it can be 
a responsible registrant. While the Government has not proven each and 
every allegation set forth in the OSC, it need not do so. Rather, the 
law merely requires the Government to establish a noncompliance on the 
part of the Respondent with the standards respecting physical security 
and maintenance of records set forth by the Attorney General. As 
discussed supra, it has done so. Therefore, the preponderant evidence 
weighs in favor of the sanction sought by the Government.

IV. The Respondent's Defenses

    The Respondent argued in its prehearing statement that its 
significant and longstanding service to the community should be 
considered in evaluating whether its continued registration is 
appropriate. ALJ-6, at 3-4, 5; ALJ-14, at 5; Tr. 24-25. This argument 
fails for two reasons. First, the Respondent declined to present any 
community impact evidence at the hearing. Second, even if the 
Respondent had presented such evidence, community impact evidence is 
generally considered to be irrelevant to DEA revocation proceedings. 
See, e.g., Linda Sue Cheek, M.D., 76 Fed. Reg. 66972, 66973 (2011) 
(noting that the DEA is not required to ``consider community impact 
evidence''); Bienvenido Tan, M.D., 76 Fed. Reg. 17673, 17694 n.58 
(2011); see also Holiday CVS, L.L.C., 77 Fed. Reg. 62316, 62339 (2012) 
(``Normal hardships to the practitioner and even to the surrounding 
community . . . are not relevant considerations.'' (citations 
omitted)); Mark De La Lama, P.A., 76 Fed. Reg. 20011, 20020 n.20 (2011) 
(declining to consider a registrant's service to underserved and 
underinsured persons); Steven M. Abbadessa, D.O., 74 Fed. Reg. 10077, 
10078 (2009) (declining to consider the hardship imposed by the lack of 
a DEA registration).
    The Respondent also argued that the amount of time that has passed 
since some of its violations mitigates its misconduct. ALJ-14, at 11-
12. In most DEA cases, the mere amount of time that has passed since a 
Respondent's misconduct is not a relevant consideration in weighing the 
public interest factors. See, e.g., Tyson D. Quy, M.D., 78 Fed. Reg. 
47412, 47418 (2013); Leonardo V. Lopez, M.D., 54 Fed. Reg. 36915, 36916 
(1989); see also Robert G. Hallermeier, M.D., 62 Fed. Reg. 26818, 26821 
(1997); John Porter Richards, D.O., 61 Fed. Reg. 13878, 13879 (1996); 
Norman Alpert, M.D., 58 Fed. Reg. 67420, 67421 (1993). However, 
narcotic treatment programs are evaluated under 21 U.S.C. Sec.  823(g), 
which does not include a consideration of public interest factors, as 
discussed supra.
    A narcotic treatment program's registration may be revoked based on 
any violation of any standard referred to in 21 U.S.C. Sec.  823(g)(1). 
21 U.S.C. Sec.  824(a). Factors are not weighed, and conduct is not 
mitigated; the plain language of the Controlled Substances Act allows 
for revocation based on a single violation. Here, the Government has 
shown far more than one violation of federal regulations.
    Although this is not a case in which public interest factors are 
weighed, it is a case wherein the Government seeks the revocation of a 
registrant's COR. Therefore, it is appropriate to apply standard 
considerations to that question. In that regard, once the Government 
presents a prima facie case for revocation, the burden of production 
shifts to the registrant to present ``sufficient mitigating evidence'' 
to show why it can be entrusted with a registration. 21 U.S.C. Sec.  
823(g)(1)(B) (connecting registration with a determination that there 
will be compliance with security and records maintenance requirements); 
see Med. Shoppe--Jonesborough, 73 Fed. Reg. at 387 (quoting Samuel S. 
Jackson, D.D.S., 72 Fed. Reg. 23848, 23853 (2007)). To

[[Page 42163]]

rebut the Government's prima facie case, a registrant must both accept 
responsibility for its actions and demonstrate that it will not engage 
in future misconduct. Patrick W. Stodola, M.D., 74 Fed. Reg. 20727, 
20734 (2009). The registrant may show acceptance of responsibility by 
providing evidence of remorse, efforts at rehabilitation, and 
recognition of the severity of its misconduct. Robert A. Leslie, M.D., 
68 Fed. Reg. 15227, 15228 (2003).
    The registrant must accept responsibility and take remedial 
measures for each separate act of misconduct that it committed. The 
Lawsons, Inc., 72 Fed. Reg. 74334, 74339 (2007); see Jeffrey Patrick 
Gunderson, M.D., 61 Fed. Reg. 26208, 26211 (1996) (noting that a 
registrant must demonstrate remorse to the full extent of the 
documented misconduct). Acceptance of responsibility and remedial 
measures are assessed in the context of the ``egregiousness of the 
violations and the [DEA's] interest in deterring similar misconduct by 
[the] Respondent in the future as well as on the part of others.'' 
David A. Ruben, M.D., 78 Fed. Reg. 38363, 38364 (2013) (citation 
omitted). Here, the HMC must have accepted responsibility and taken 
adequate remedial measures regarding its recordkeeping and security 
violations.
    In this case, Mrs. Ozumba has only taken responsibility for the 
allegations surrounding the 1997 inspection, and for being absent from 
the HMC during the 2014 inspection. Tr. 685, 687, 693, 929, 934. 
Applying the adage of ``actions speak louder than words,'' it would 
appear that the HMC has also accepted responsibility for the security 
violations that were identified in the 2011 inspection. Those security 
concerns were addressed within a week of the inspection, and the HMC 
was not cited for any security violations in the 2014 inspection. Tr. 
290-91, 533, 739-40, 901. Were the security issues the only matter 
pending before me, I would find that the HMC had presented sufficient 
mitigating evidence to show why it could be entrusted with a 
registration.
    Mrs. Ozumba testified that with respect to the 1999 and 2006 
inspections, she considered the matters resolved based upon her 
responses to the DEA shortly after those inspections. Tr. 697-98, 690-
92, 694. She also sent letters to the DEA after these inspections 
indicating steps she had taken to ensure further compliance with 
federal regulations. See GE-27, 37. In addition, in both the 2000 MOU 
and the 2013 Stipulated Agreement, the HMC agreed to comply with 
federal regulations governing the handling of controlled substances. 
See GE-7, 32. Unfortunately, there is no other evidence in the 
administrative record that supports a conclusion that the HMC's prior 
violations were resolved, and the record does not support a conclusion 
that the terms of the MOU or the Stipulated Agreement have had any 
significant effect on the manner in which the HMC has maintained its 
records.
    Of note, Mrs. Ozumba indicated that she had conducted training 
after the 2006 inspection, yet Bultron did not recall the HMC 
implementing any new policies, procedures or training after the 2006 
inspection. GE-27; Tr. 239-40, 638. Mrs. Ozumba also testified that she 
had created a new form after the 2006 inspection, but her office 
manager, Garnett, testified that he created the form in 2012. Tr. 931-
35, 964-77; see also RE-X. In fact, there has been little change in the 
HMC's recordkeeping from 1997 through 2014. See Findings of Fact 1-5, 
42. Furthermore, where a registrant has not accepted responsibility for 
its actions, remedial measures are not relevant. See Hoxie v. DEA, 419 
F.3d 477, 483 (6th Cir. 2005) (recognizing the importance of admitting 
fault). As discussed supra, the HMC has not accepted responsibility for 
its regulatory violations; therefore, any evidence of remedial measures 
is inconsequential. Therefore, the Respondent has failed to rebut the 
Government's prima facie case.

RECOMMENDATION

    ``One of the requirements for registration of a narcotic treatment 
program is that the program, comply with standards established by the 
Attorney General respecting . . . the maintenance of records (in 
accordance with section 827 of this title) on such drugs.'' Berger, 52 
Fed. Reg. at 17646 (internal quotation marks omitted). ``The 
Administrator will not hesitate to revoke the registration of a 
n[a]rcotic treatment program that fails to meet its statutory and 
regulatory obligations to provide adequate security and 
recordkeeping.'' Queens County, 50 Fed. Reg. at 2100.
    The HMC has had a relatively long history of violating the 
Controlled Substances Act and its implementing regulations. More 
specifically, over the course of seventeen years and five inspections, 
the HMC has consistently failed to keep complete and accurate records 
concerning the receipt, accounting, and dispensing of narcotic 
substances and on one occasion was found to have inadequate security 
for its controlled substances. Even more troubling is the fact that, as 
discussed supra, the HMC has been warned on several occasions of its 
recordkeeping failings and has been provided multiple opportunities to 
correct them. Despite those efforts for compliance, the HMC has 
consistently failed.
    ``Diversion, and the potential diversion of methadone from narcotic 
treatment programs, is of grave concern to the Administrator. . . . The 
DEA regulation and supervision of these programs is intended to prevent 
the loss and diversion of methadone.'' Queens County, 50 Fed. Reg. at 
2099-2100. A respondent who ``manifests a casual indifference to its 
obligation to provide adequate security, to keep complete and accurate 
records, and to properly account for its supply of narcotic drugs'' is 
unfit to handle narcotic substances. Id. at 2100.
    The record, as a whole, reveals a casual indifference on the part 
of the HMC to maintain adequate security and to keep complete and 
accurate records of its narcotic drug receipts, accounts, and 
dispensings. It also reflects that the HMC's past failures are likely 
to continue. ``The integrity of the controlled substances distribution 
system, particularly where highly abusable, dangerous, and much sought-
after drugs such as methadone are concerned, is too important a 
consideration to be left to speculation.'' Metro Substance Abatement 
Program, Inc., 45 Fed. Reg. 78845, 78848 (1980). ``To hope that the 
Respondent will operate responsibly in the future, in light of its 
well-documented past performance, would be speculative at best.'' Id. 
The HMC's consistent noncompliance with federal law despite having been 
afforded every opportunity to comply demonstrates that it cannot be 
entrusted with a registration. ``The public should not be placed at the 
risk of . . . diversion any longer.'' Queens County, 50 Fed. Reg. at 
2100.
    Therefore, I RECOMMEND that the Respondent's DEA Certificate of 
Registration be REVOKED and any applications for renewal or 
modification of its registration be DENIED.

    Dated: September 30, 2016.

Charles Wm. Dorman,

Administrative Law Judge.

[FR Doc. 2018-17889 Filed 8-17-18; 8:45 am]
 BILLING CODE 4410-09-P