[Federal Register Volume 87, Number 97 (Thursday, May 19, 2022)]
[Notices]
[Pages 30564-30608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10592]



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Vol. 87

Thursday,

No. 97

May 19, 2022

Part II





Department of Justice





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Drug Enforcement Administration





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Fares Jeries Rabadi, M.D.; Decision and Order; Notice

  Federal Register / Vol. 87, No. 97 / Thursday, May 19, 2022 / 
Notices  

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 20-14]


Fares Jeries Rabadi, M.D.; Decision and Order

    On March 2, 2020, a former Acting Administrator of the Drug 
Enforcement Administration (hereinafter, DEA or Government), issued an 
Order to Show Cause and Immediate Suspension of Registration 
(hereinafter collectively, OSC) to Fares Jeries Rabadi, M.D. 
(hereinafter, Respondent). Administrative Law Judge Exhibit 
(hereinafter, ALJ Ex.) 1 (OSC), at 1. The OSC immediately suspended 
Respondent's DEA Certificate of Registration Number BR6081018 
(hereinafter, registration or COR) ``because [Respondent's] continued 
registration constitutes an `imminent danger to the public health or 
safety.' '' Id. (citing 21 U.S.C. 824(d)). The OSC also proposed 
revocation of Respondent's registration, the denial of any pending 
applications for renewal or modification of such registration, and the 
denial of any pending applications for additional DEA registrations 
pursuant to 21 U.S.C. 824(a)(4) and 823(f), because Respondent's 
``continued registration is inconsistent with the public interest.'' 
Id.
    In response to the OSC, Respondent timely requested a hearing 
before an Administrative Law Judge. ALJ Ex. 2. The hearing in this 
matter was conducted on September 29-30, 2020, via video teleconference 
technology. On December 22, 2020, Administrative Law Judge Mark M. 
Dowd, (hereinafter, ALJ) issued his Recommended Rulings, Findings of 
Fact, Conclusions of Law and Decision (hereinafter, Recommended 
Decision or RD) to which both parties filed Exceptions. I have 
addressed both the Respondent's and Government's Exceptions in 
footnotes added to the corresponding parts of the RD. While I have made 
some modifications to the RD based on the Exceptions, none of those 
changes and none of Respondent's arguments persuaded me to reach a 
different conclusion than the ALJ in this matter. I issue my final 
Order in this case following the Recommended Decision.\*A\
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    \*A\ I have made minor, nonsubstantive, and grammatical changes 
to the RD and nonsubstantive conforming edits. Where I have added to 
the ALJ's opinion to include additional information, I have noted 
the additions in brackets or in footnotes marked with an asterisk 
and a letter. Where I have made substantive changes, omitted 
language for brevity or relevance, or where I have modified the 
ALJ's opinion, I have noted the edits in brackets and have included 
specific descriptions of the modifications in brackets or in 
footnotes marked with an asterisk and a letter. Within those 
brackets and footnotes, the use of the personal pronoun ``I'' refers 
to myself--the Administrator.
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Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge *B
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    \*B\ I have omitted the RD's discussion of the procedural 
history to avoid repetition with my introduction.
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    The issue to be decided by the Administrator is whether the record 
as a whole establishes by a preponderance of the evidence that the DEA 
Certificate of Registration, No. BR6081018, issued to Respondent should 
be revoked, and any pending applications for modification or renewal of 
the existing registration should be denied, and any pending 
applications for additional registrations should be denied, because his 
continued registration would be inconsistent with the public interest 
under 21 U.S.C. 823(f) and 824(a)(4).
    After carefully considering the testimony elicited at the hearing, 
the admitted exhibits, the arguments of counsel, and the record as a 
whole, I have set forth my recommended findings of fact and conclusions 
of law below.

The Allegations

    The Government alleges the Respondent violated federal and 
California law,\1\ by issuing numerous prescriptions for Schedule II 
through IV controlled substances outside the usual course of 
professional practice and not for a legitimate medical purpose to seven 
individuals as recently as December 31, 2019. These prescriptions fell 
below minimal medical standards applicable to the practice of medicine 
in California. Therefore, these prescriptions violated federal and 
California state law.
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    \1\ [Omitted for brevity. Specifically, Respondent was charged 
with violating:]
    a. Cal. Health & Safety Code Sec.  11153(a), requiring that a 
``prescription for a controlled substance shall only be issued for a 
legitimate medical purpose by an individual practitioner acting in 
the usual course of his or her professional practice'';
    b. Cal. Health & Safety Code Sec.  11154(a), directing that ``no 
person shall knowingly prescribe, administer, dispense, or furnish a 
controlled substance to or for any person . . . not under his or her 
treatment for a pathology or condition . . .'';
    c. Cal. Bus.& Prof. Code Sec.  2242, prohibiting the 
``[p]rescribing, dispensing, or furnishing [of controlled 
substances] . . . without an appropriate prior examination and a 
medical indication,'' the violation of which constitutes 
unprofessional conduct;
    d. Cal. Bus. & Prof. Code Sec.  2234, defining unprofessional 
conduct to include: ``[g]ross negligence''; ``[r]epeated negligent 
acts''; ``[i]ncompetence''; or ``[t]he commission of any act 
involving dishonesty or corruption that is substantially related to 
the qualifications, functions, or duties of a physician and 
surgeon''; and
    e. Cal. Bus. & Prof. Code Sec.  725, further defining 
unprofessional conduct to include ``[r]epeated acts of clearly 
excessive prescribing, furnishing, dispensing, or administering of 
drugs. . . .''
    Additionally, [Respondent was alleged to have issued 
prescriptions outside of] California's applicable standard of care 
as outlined in the ``Guide to the Laws Governing the Practice of 
Medicine by Physicians and Surgeons,'' Medical Board of California, 
7th ed. 2013 (the ``Guide''). [Omitted for brevity.] See ALJ Ex. 1. 
[The Government did not address (b) or (d) above in its Posthearing 
Brief, so I will not address those allegations herein.]
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    The Government alleges the Respondent regularly prescribed highly 
addictive and intoxicating combinations of controlled substances to his 
patients, and that he consistently failed to: (1) Perform adequate 
physical evaluations and obtain appropriate patient histories; (2) make 
appropriate diagnoses based on sufficient clinical evidence and 
document these diagnoses in his medical records; (3) document a 
legitimate medical purpose for the controlled substances that he 
prescribed; (4) monitor his patients' medication compliance; and (5) 
respond to red flags of drug abuse and diversion. These failures 
constitute extreme departures from the standard of care in California, 
and that his actions were dangerous and reckless. Because of these 
failures, he regularly put his patients at significant risk for harm, 
including overdose or death. He also continued to prescribe controlled 
substances to these patients despite the fact that he knew they were 
suffering from opioid dependencies. [The OSC went on to provide 
specific examples of Respondent's alleged failures related to seven 
individuals: S.B., M.B., B.C., J.C., D.D., J.M., and K.S. ALJX 1, at 
14.] For each of the seven patients, he continued to prescribe opioids 
to them, even while noting that each patient suffered from an opioid 
dependency.\*C\
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    \*C\ Omitted for brevity.
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The Hearing

Government's Opening Statement 2
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    \2\ The Respondent waived the opportunity to make an opening 
statement. Tr. 30.
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    DEA initiated an investigation into Dr. Rabadi, a California 
registered physician, upon receipt of a report from the Department of 
Health and Human Services Office of Inspector General. Tr. 23. The 
report characterized him as a ``high-risk prescriber'' due to his 
prescribing of a large number of highly diverted and highly abused 
drugs. Initially, DEA reviewed Dr. Rabadi's prescribing practices 
through the California PDMP. Tr. 23. Significant red flags were 
revealed, including dangerous combinations of controlled substances. 
Three drugs, hydrocodone acetaminophen, alprazolam and

[[Page 30565]]

carisoprodol constituted over 95% of the controlled substance 
prescriptions he issued between November 20, 2015, and November 21, 
2018. Tr. 24. In combination, these three drugs make up a highly 
dangerous and diverted cocktail commonly known among drug seekers as 
the Holy Trinity.
    On November 6, 2018, an undercover agent (hereinafter, UC) posing 
as a prospective patient with back pain, sought treatment from Dr. 
Rabadi. Dr. Rabadi declined to treat UC, explaining that he was an 
internist and did not treat back pain. Tr. 24.
    In February of 2019, DEA executed federal search warrants on Dr. 
Rabadi's clinic, home, and three safety deposit boxes. DEA seized a 
number of prescriptions and patient files. Tr. 24. DEA also seized an 
unusually large amount of cash from Dr. Rabadi's home and clinic 
examination room suggestive of diversion and mis-prescribing. Tr. 25. 
Subpoenas to pharmacies produced prescriptions for a number of Dr. 
Rabadi's patients, including the seven patients at issue in this case. 
Tr. 25.
    The Government's expert, Dr. Timothy Munzing, will testify that his 
review of the patient files and prescriptions revealed, in his opinion, 
that Dr. Rabadi prescribed controlled substances to each of the seven 
patients outside the usual course of professional practice in 
California. Tr. 25. Dr. Munzing will testify that Dr. Rabadi never 
established a legitimate medical purpose for the controlled substances 
he prescribed, and was not acting in the usual course of professional 
practice. Tr. 25. Dr. Munzing will testify that Dr. Rabadi consistently 
failed to meet fundamental elements of the California standard of care 
for prescribing controlled substances, including failure to obtain 
appropriate medical histories, failure to perform minimally appropriate 
physical exams, failure to make appropriate diagnoses based on 
sufficient medical evidence, failure to document appropriate treatment 
plans, failure to document a legitimate medical purpose for the 
controlled substances, failure to discuss the risks and benefits of the 
cocktails and controlled substances he prescribed, failure to conduct 
even a single urine drug screen, and failure to respond to red flags of 
abuse and diversion. Tr. 27. Dr. Rabadi prescribed controlled 
substances in dangerous and addictive combinations and outside the 
usual course of professional practice and without establishing a 
legitimate medical purpose. Dr. Rabadi diagnosed neck and back pain 
without sufficient medical evidence. Tr. 27. Dr. Rabadi frequently and 
plausibly diagnosed opioid dependency for patients on long term opioid 
use. Dr. Rabadi frequently issued Norco prescriptions to treat M.B., 
B.C., J.C., D.D., J.M., and K.S. for opioid dependency, which was a 
dangerous and illegal course that was outside the standard of care. Tr. 
27-28. Dr. Rabadi prescribed Xanax in dangerously high dosages to 
Patients S.B., B.C., J.M., and K.S. of six to eight mgs per day, almost 
twice the recommended maximum dosage for anxiety disorder. Tr. 28. With 
early refills of Xanax, the Respondent exposed J.M. to more than 10 mgs 
per day for nearly two years. Tr. 29. He further exposed these patients 
to the risk of overdose and death by concurrently prescribing them 
opioids. Tr. 28.
    Thus, the Respondent was not providing medical care to these 
patients, he was exposing them to risk of harm by handing out dangerous 
and addictive drugs without medical justification. Dr. Rabadi's 
controlled substance prescriptions to Patients S.B., M.B., B.C., J.C., 
D.D., J.M., and K.S. were not issued for a legitimate medical purpose, 
were not issued by a practitioner acting within the usual course of 
professional practice in California, and were issued in violation of 
the standard of care in California and in violation of the laws of the 
United States. Tr. 29. Accordingly, the Government then requested that 
the tribunal recommend revocation of Dr. Rabadi's DEA certificate of 
registration.\3\
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    \3\ Government allegations included a reference to statistics 
that 95% of the Respondent's prescriptions were for the ``Holy 
Trinity'' suggesting that evidence, in itself, demonstrated 
illegitimate prescribing by the Respondent. The Government confirmed 
that those statistics did not form an independent allegation. Tr. 
32-33.
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Government's Case-in-Chief

    The Government presented its case-in-chief through the testimony of 
two witnesses. First, the Government presented the testimony of a DEA 
Diversion Investigator (DI). Secondly, the Government presented the 
testimony of Dr. Timothy Munzing, M.D.

Diversion Investigator

    DI has served as a Diversion Investigator at DEA's Los Angeles 
Field Division for three years. Tr. 33-34. Previously, she served with 
United States Citizenship and Immigration Service for four years. Tr. 
75. As a DI, she enforces compliance with the Controlled Substances Act 
(CSA), looking for signs of diversion within the registration system, 
including monitoring for regulatory compliance. Tr. 34-35. She has 
attended the basic diversion investigation training at the DEA Academy, 
which included training to spot signs of diversion, investigating 
diversion and enforcing compliance with the CSA, both in the criminal 
and administrative settings. Tr. 35. She has also received training 
regarding CURES--the California prescription drug monitoring program.
    Regarding the Respondent, in April 2018, DEA received a report from 
the Department of Health and Human Service (HHS) that the Respondent 
was on a ``high-risk model for overprescribing of controlled 
substances.'' Tr. 37, 75. DEA ran two CURES reports, one in April of 
2018, which revealed numerous red flags, including prescribing 
hydrocodone at the maximum strength and a large amount of 
polypharmaceutical cocktails or combinations of a benzodiazepine and an 
opioid. Additionally, the volume of opioid prescribing was high, at 
over 9,000 prescriptions over the course of three years from November 
2015 to November 2018. Tr. 38-39, 42, 56-57, 82; GX 16-19. Fifty-
percent of these were for hydrocodone. Tr. 42. According to DI, the 
combination of a benzodiazepine and an opioid are significant as they 
are highly sought after by the black market and are dangerous to the 
patient. Tr. 39. The Respondent also prescribed a large number of 
combinations of the highly sought after ``Holy Trinity,'' which 
includes a narcotic, a muscle relaxant and a benzodiazepine--96% of his 
prescriptions during that three-year period.\*D\ Tr. 40, 42-43. These 
highly addictive and highly dangerous combinations were prescribed over 
a long period of time. Tr. 40-41.
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    \*D\ To be clear, the DI did not testify that 96% of the 
prescriptions that Respondent issued were issued in the ``Holy 
Trinity'' combination. Rather, DI testified that 96% of Respondent's 
issued controlled substance prescriptions were for either 
hydrocodone (a narcotic), alprazolam (a benzodiazepine), or 
carisoprodol (a muscle relaxant). Tr. 42.
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    Due to these red flags, on September 26, 2018, DEA sent an 
undercover agent (UC) to the Respondent's clinic--posing as a 
prospective patient. Tr. 43. The first attempt was foiled as the clinic 
was closed. The second attempt occurred on October 30, 2018. Tr. 44, 
75-76. The clinic was again closed. The third attempt occurred on 
November 6, 2018. UC complained of back pain and shoulder pain and 
sought help from Dr. Rabadi. Dr. Rabadi declined to help the UC--
explaining that he was not taking new patients and that he was an 
internist and not a pain specialist. Tr. 45, 75-76. Ultimately, DEA 
obtained five search warrants, four of which were

[[Page 30566]]

executed on February 21, 2019. Tr. 46, 76-77. The fifth was served on 
February 22, 2019. Tr. 74. They were served on his clinic, on his home 
and on two safety deposit boxes at two separate banks. Tr. 46. DEA 
seized 1.2 million dollars in cash at his home.\4\ Dr. Rabadi was home 
when the search warrant was served. Tr. 77. He agreed to be interviewed 
regarding his prescribing practices. Tr. 77. At his clinic, DEA seized 
patient files and some prescriptions for S.B., B.C., M.B., J.C., D.D., 
J.M. and K.S. Tr. 49-50. Additional prescriptions and fill stickers 
were obtained from pharmacies.\5\ Tr. 50-55; GX 1-15. Thereafter, in 
January 2020, DEA issued an administrative subpoena to the Respondent 
for any and all updated medical records and prescriptions for the noted 
patients. Tr. 55-56.\6\ In all, DEA obtained twenty-seven files or 
updated files. Tr. 78.
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    \4\ The Respondent objected to the evidence of the cash seizure 
as irrelevant and immaterial. The objection was carried. Tr. 47-49. 
[I find that this evidence, while useful to understanding the course 
of DEA's investigation, is immaterial to the ultimate issue in this 
case, which is whether or not Respondent issued controlled substance 
prescriptions that were outside the usual course of professional 
practice and beneath the standard of care. Accordingly, I have not 
considered this information in making my decision.]
    \5\ DI noted record-keeping deficiencies on the part of some of 
the pharmacies, Tr. 51-55, but clarified they were not a negative 
reflection on the Respondent. Tr. 79-80.
    \6\ The Government authenticated Government Demonstrative 
Exhibits 1-8, which were summary charts for each of the seven 
subject patients containing the subject prescriptions and patient 
files consistent with the seized and stipulated to records. Tr. 57-
73.
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Dr. Timothy Munzing

    Dr. Munzing is a physician licensed in California and holds a DEA 
Certificate of Registration there. Tr. 86-87; GX 23. Dr. Munzing 
graduated from UCLA Medical School in 1982. Tr. 89. He completed his 
internship and residency in family medicine at the Kaiser Permanente 
Medical Center in Los Angeles in 1985. Tr. 89. He then went to Kaiser 
Permanente Orange County, where he has been employed for the last 35 
years in the family medicine department. He is also available as a 
consultant. Tr. 90.
    In his family medicine practice, he takes care of his patients from 
``cradle to grave.'' Tr. 90. Most of his present patients are adults. 
Tr. 90. Twenty-five percent of his work is spent treating his patients. 
Tr. 92. In his clinical practice, he has prescribed controlled 
substances, including opioids and benzodiazepines. Tr. 92. Thirty-two 
years ago Dr. Munzing founded a family medicine practice residency 
program, and continues to be the residency director for twenty-four 
residents. Tr. 90. He also sits on the National Accreditation Board for 
Family Medicine Residency. He is a member of the American Medical 
Association, the California Medical Association, and the American 
Academy of Family Physicians, to name a few. Tr. 91; GX 23. He also 
serves as a full clinical professor at the University of California 
Irvine, and at the Kaiser Permanente School of Medicine. Tr. 91. He has 
been called as an expert witness by the California Medical Board for 
the past ten years, and by federal law enforcement for the past six 
years. Tr. 623. Dr. Munzing has been qualified approximately thirty-
five times to offer his expert opinion for the California Medical 
Board, DEA, FBI, and the Department of Justice, including his opinion 
on the standard of care for prescribing controlled substances, and 
whether a prescription was issued for a legitimate medical purpose in 
the usual course of professional practice. Tr. 92-94, 623. He has 
testified as an expert in five or six prior DEA Administrative 
hearings. Most of his opinions have related to illegal prescribing of 
opioids. Tr. 95. Internal rules of Kaiser Permanente prevent him from 
testifying on behalf of physicians. Tr. 624. Dr. Munzing estimated he 
had received approximately $20,000 for his time on the instant case at 
$400 per hour. Tr. 624.
    He is familiar with the California standard of care for prescribing 
controlled substances. Tr. 94. The California standard of care is 
informed by publications by the California Medical Board. Tr. 95-97; GX 
20 at 59-61, GX 21. In particular, ``The Laws Governing the Practice of 
Medicine by Physicians and Surgeons,'' sets out minimum requirements 
for care, including history and physical examination, assessment of 
pain, physical and psychological functioning, substance abuse history, 
treatment plan, and maintaining accurate and complete records. Tr. 374-
80. In forming his opinions in this case, Dr. Munzing reviewed the 
medical records and prescriptions for the subject patients. Tr. 100-01. 
Dr. Munzing was qualified, without objection, as an expert in 
California medical practice, including the applicable standards of care 
in California for the prescribing of controlled substances within the 
usual course of the professional practice of medicine. Tr. 101-02.
    Dr. Munzing explained that the standard of care is generally ``what 
a responsible, knowledgeable physician can do'' under similar 
circumstances. Tr. 102-03. In prescribing controlled substances this 
would include performing a physical examination, taking a history, 
including both a medical history and a psychological and substance 
abuse history, attempting to obtain prior medical records, formulating 
a diagnosis, evaluating risk factors for the controlled medications 
including the risk of abuse, discussing the risks with the patient to 
obtain informed consent, developing a customized treatment plan with 
goals and objectives, documenting all of the above in the medical 
record, and providing ongoing monitoring of the patient and of his 
treatment, including urine drug screens (UDS) and alternate therapies. 
Tr. 103-112, 114-25, 128-35. Ongoing and comprehensive documentation is 
critical for accurate evaluation of a patient's condition and 
treatment. Tr. 142-50. The goal is to maximize function, while 
minimizing risk. Tr. 139-40. Compliance with all relevant California 
statutes and regulations is also required by the standard of care. Tr. 
104. It requires addressing, resolving and documenting red flags. Tr. 
112. Dr. Munzing identified the FDA ``black box'' warning regarding 
combining opioids with benzodiazepines, titled New Safety Measures 
Announced for Opioid Analgesics, dated August 31, 2016. Tr. 151; GX 22 
at 1-3, 4, 25, 40. The FDA specifically noted diazepam, Klonopin, and 
Xanax should not be combined with opioids unless absolutely necessary, 
and for no longer than absolutely necessary. Tr. 153-55.
    Dr. Munzing testified that the higher the morphine milligram 
equivalent (MME) prescribed, the increased risk of addiction and 
overdose. Tr. 126-28. Prescribing controlled substances for 
psychological illness requires an even greater emphasis on history, and 
a more-focused physical exam [of the ``heart, lung, vital signs . . . 
seeing if [there is] any evidence of some other medical diagnosis'' in 
addition to the mental health disorder.] Tr. 136, 138-39, 141. The 
General Anxiety Disorder screening tool, GAD-7, is a useful tool in 
assessing a patient's level of anxiety. Tr. 136-37.
    Dr. Munzing reviewed the patient files, prescriptions, and CURES 
data for Patients S.B., M.B., B.C., J.C., D.D., J.M., and K.S. [and 
concluded that the prescriptions at issue were ``not consistent with 
the standard of care in the state of California.''] Tr. 156-57. Dr. 
Munzing noted that the history for these seven patients was deficient. 
Tr. 157. There was no indication prior medical records were obtained. 
Tr. 157. The physical exams, if present, were missing key elements. 
There were no documented CURES checks. Tr. 158.

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Diagnoses appeared and disappeared. Opioids were prescribed at high 
dosages. There was no indication of the necessary patient monitoring 
and there was no documentation of informed consent. Tr. 159-60, 207. 
Dr. Munzing summarized that none of the controlled prescriptions issued 
for the charged patients were issued for a legitimate medical purpose 
by a practitioner acting within the usual course of professional 
practice. Tr. 620-21. According to Dr. Munzing, all of the relevant 
prescriptions were issued outside the standard of care. Tr. 621.

Patient S.B.

    As per the parties' stipulations, between February 2, 2017, and 
January 30, 2019, S.B. was prescribed hydrocodone, carisoprodol, 
Adderall and alprazolam. Tr. 162-63; GDX 1. Dr. Munzing characterized 
the patient file as meager. He characterized the controlled substance 
prescriptions as being outside the standard of care. Tr. 163, 207, 241-
44. For S.B.'s initial visit on August 3, 2016, she was diagnosed with 
Generalized Anxiety Disorder (GAD), Attention Deficit Disorder (ADD), 
and Fibromyalgia. Tr. 163-65; GX 1 at 62, 66. There were no supporting 
findings from a physical examination or history for the fibromyalgia 
diagnosis, which typically is reached after a certain number of tender 
points are determined. Tr. 166. Similarly, there were no supporting 
findings from a physical examination or history to support the GAD or 
ADD diagnoses. Tr. 166-71, 241-44. There was no physical functioning 
level documented nor mental functioning level documented. Tr. 171. 
Without sufficient evaluation and supporting documentation for the 
three diagnoses, Dr. Munzing deemed the diagnoses inappropriate. Tr. 
241-44. Without an appropriate diagnosis, there was no legitimate 
medical purpose for the controlled substance prescriptions. Tr. 172, 
207, 241-44. Similarly, there was no documented treatment plan. Tr. 
241-44. On February 2, 2017, S.B. presented to the clinic suffering 
from fibromyalgia and ADD. Tr. 173; GX 1 at 59. The Respondent 
diagnosed her with fibromyalgia-opioid dependent, refusing detox, and 
ADD. He prescribed hydrocodone, carisoprodol, and Adderall. Tr. 173-74. 
Again, there was no medical history justifying the diagnosis. The 
physical exam conducted on February 2, 2017, consisted of blood 
pressure, cardiovascular, heart and lung, all of which were normal. 
Again, the physical exam was insufficient to justify the fibromyalgia 
and ADD diagnoses. Tr. 175. There was no documentation of the pain 
level, or functionality level, to justify continued controlled 
substance prescribing. Tr. 175-76. For the progress notes of June 28, 
2017, the Respondent diagnosed her with fibromyalgia-opioid dependent, 
refusing detox, and ADD. He prescribed hydrocodone, carisoprodol, and 
Adderall. Tr. 177. Again, there was no medical history justifying the 
diagnoses. There was no documentation of the pain level, or 
functionality level, to justify continued controlled substance 
prescribing. Tr. 177-78; GX 1 at 57. Again, blood pressure and heart 
and lung exams were performed. Tr. 177. There was insufficient medical 
evidence to justify the three diagnoses. Tr. 177-78. For the progress 
note for December 21, 2018, S.B. presented with eczema and 
fibromyalgia. Tr. 179; GX 1 at 49. The Respondent diagnosed her with 
fibromyalgia-opioid dependent, refusing detox. She was prescribed 
hydrocodone. No history was recorded. Again, blood pressure and heart 
and lung exams were performed. Tr. 180. There was no documentation of 
the pain level or functionality level, to justify continued controlled 
substance prescribing. Tr. 180. There was insufficient medical evidence 
to justify the fibromyalgia diagnosis. Tr. 181. In the progress notes 
for January 30, 2019, S.B. reported to the clinic with ADD and 
rhinitis. Tr. 181; GX 1 at 47. She was prescribed Adderall for the ADD. 
No medical history was taken. ADD patient progress was reported as 
``stable.'' There was insufficient medical evidence to justify the ADD 
diagnosis. Tr. 183. Dr. Munzing deemed the ADD diagnoses inappropriate. 
Without an appropriate diagnosis, there is no legitimate medical 
purpose for the controlled substance prescription. Tr. 185-86. During 
the subject period of the Respondent's treatment of S.B., he never 
obtained any prior medical records. Tr. 184. He never recorded a 
history, which would justify his diagnoses for Fibromyalgia, GAD, or 
ADD. Tr. 184-85. He never reported a sufficient physical or mental exam 
to justify the Fibromyalgia, GAD, or ADD diagnoses. Id. He never 
reported a sufficient evaluation to justify his diagnoses for 
Fibromyalgia, GAD, or ADD. Id. The relevant controlled substance 
prescriptions for S.B. were not issued within the California standard 
of care, nor were they issued within the usual course of professional 
practice. Tr. 186-87, 244.
    Dr. Munzing observed that the diagnoses would come and go in the 
records and were inconsistently reported, which is atypical for chronic 
diagnoses. Tr. 188-97. A chronic disease, with symptoms that appear to 
come and go would raise the question of whether the patient had the 
disease at all. Tr. 192. Even a lessening of symptoms should cause 
evaluation as to whether tapering of medication would be appropriate. 
Tr. 196.
    Dr. Munzing noted that the Respondent prescribed S.B. both 
hydrocodone and Soma to treat Fibromyalgia on numerous occasions. Tr. 
197-98. On other occasions, he prescribed the hydrocodone only without 
documenting any explanation for changing the medication protocol, which 
was beneath the California standard of care for documentation. Tr. 198-
201; GX 20 at 61. [Dr. Munzing testified that Respondent did not 
establish a legitimate medical purpose for issuing to S.B. any of the 
controlled substances at issue. Tr. 201.] Dr. Munzing noted that S.B. 
was prescribed a dangerous, highly addictive combination of medications 
that was popular for abuse and diversion; namely hydrocodone and Soma, 
which are respiratory depressants, and Adderall. Tr. 202.
    Another dangerous combination, hydrocodone, Adderall and Xanax was 
prescribed March 1, 2017, April 2017, and June 2017. Tr. 203; GX 1. Dr. 
Munzing noted this combination is referred to by drug abusers as the 
``new Holy Trinity.'' Tr. 204. It includes the depressants, hydrocodone 
and Soma, and is followed by the stimulant, Adderall, to counteract the 
effects of the depressants. Again, the combination of hydrocodone and 
Soma are the subject of the FDA ``black box'' warning. Tr. 205. The 
high dosage of Xanax, 6 mg per day, heightens the risk of this already 
dangerous combination. With Xanax and Adderall prescribed at their 
highest commercially available dosage units, the danger and risk of 
addiction are further increased. Tr. 205. Additionally, two mg tablets 
of Xanax are popular for abuse and diversion. Tr. 217-18. On September 
29, 2017, and monthly from July 2018, to July 2019, S.B. was prescribed 
hydrocodone and Adderall. Besides the serious risk of addiction posed 
by these two Schedule II medications, the hydrocodone was prescribed at 
a daily dosage of 60 mg MME, which significantly increases the risk of 
overdose and death. This risk was increased by its combination with 
Adderall. Tr. 206-07. Dr. Munzing could not foresee any medical 
condition in which this combination would be appropriate. Tr. 211-12.
    Dr. Munzing noted that the medical records failed to disclose any 
indication that the Respondent warned S.B. regarding the risks 
associated with these dangerous combinations of controlled

[[Page 30568]]

substances. This failure precludes any informed consent by S.B. Tr. 
207. The Declaration of Pain Medication Use document in the file, dated 
August 3, 2016, which requires the patient to alert the Respondent if 
the patient takes additional medications [(other than those prescribed 
by Respondent)] because they could result in drug interactions, does 
not put the patient on notice of the dangerous combinations prescribed 
by the Respondent. Tr. 207-10; GX 1 at 67. Similarly, Dr. Munzing noted 
the repeated notation within the patient records of ``SED,'' which Dr. 
Munzing assumed meant, ``side effects discussed,'' was insufficient 
documentation within the standard of care to establish that Respondent 
discussed the various risks of these medication combinations. Tr. 210-
11; GX 1 at 59.
    In March, April and June of 2017, the Respondent prescribed S.B. 
Xanax at 6 mg per day, in excess of the FDA recommended daily limit of 
4 mg per day. Tr. 212-15; GX 1 at 57, 58, 59. GX 22 at 40, 59-61. In 
May of 2017, the Xanax was abruptly stopped. Tr. 216-17; GDX 1. And 
abruptly restarted in June of 2017, and again stopped. Tr. 217. This is 
very dangerous as the abrupt stoppage of Xanax without titration, 
especially at this high dosage, can cause seizures, and restarting at 
this high dosage can trigger an overdose, especially in conjunction 
with the prescribed opioid. Tr. 212-18.
    Dr. Munzing testified that regarding the monitoring of S.B., there 
were no urine drug screens evident in the records, which the standard 
of care would have required at least quarterly. Tr. 218-21; GX 1 at 44. 
In the progress notes for February, March, April 2017, all the way to 
January 30, 2019, the Respondent noted ``refusal to detox.'' Tr. 220-
21, 227-29; GX 1 at 58, 59. This is a huge red flag for opioid use 
disorder and for diversion. However, the chart reflects the Respondent 
did not take any necessary action, such as CURES monitoring, random 
pill count, UDS, counseling, or titration. Rather, he simply prescribed 
the same levels of medications she was on, PRN. Tr. 222-23. The 
Respondent's course of action was outside the California standard of 
care. Tr. 223, 229. Respondent's medical file for S.B. contained a June 
2017 report from Dr. F., an orthopedic surgeon who saw S.B. for 
reported neck and back pain. According to Dr. F's report, S.B. reported 
her past medical history as only ``anxiety.'' Tr. 229; GX 1 at 30, 32, 
36-42, 56. She did not report Fibromyalgia or ADD. Tr. 229-30. S.B. 
further reported to Dr. F. that she was not then taking any medication 
for pain, which is contrary to the Respondent's medical records and 
prescription evidence. Tr. 231-32. Dr. F.'s report was part of S.B.'s 
disability application, claiming disability as of June 15, 2017. A 
report from Chiropractor B.H. is also included in the disability 
packet. Tr. 235. Dr. B.H. reports the disability was caused by 
``accident or trauma,'' which is inconsistent with what the patient 
reported to Dr. F. and to the Respondent. Tr. 236. There is no 
indication within the Respondent's records for S.B. that he ever 
discussed, with S.B. or with Dr. F., the discrepancies revealed by Dr. 
F.'s report. Tr. 233-37.
    Contemporaneous to the preparation of the disability claim, Dr. 
Rabadi ordered a series of radiologic tests on S.B., none of which were 
related to the Respondent's diagnosis of fibromyalgia. The progress 
notes from August 17, 2017, say that S.B. presented with ``overactive 
thyroid, gait disturbance.'' Tr. 237-40; GX 1 at 5, 7, 9, 11, 13, 16, 
17, 56. Dr. Rabadi ordered an MRI of the brain to rule out MS, a 
thyroid ultrasound to rule out hyperthyroidism, an MRI of the lumbar 
spine, and an MRI of the thoracic spine. The MRI of the cervical spine 
was ordered by Dr. F. Tr. 241.
    [Dr. Munzing, summarizing his opinions based on his review of the 
entire file for S.B., testified that Respondent never took a proper 
medical or mental health history, never conducted a sufficient physical 
or mental health examination for S.B.'s relevant diagnoses, never made 
an appropriately supported diagnosis, never recorded S.B.'s pain and 
functionality level, never documented an appropriate treatment plan 
with goals or objectives, never appropriately documented discussion of 
the risks of the prescribed controlled substances with S.B., never 
appropriately monitored S.B. and failed to appropriately respond to red 
flags of diversion. Tr. 241-44. Accordingly, Dr. Munzing opined that 
each of the relevant prescriptions Respondent issued to S.B. were 
issued without a legitimate medical purpose, outside the usual course 
of professional practice and beneath the standard of care in 
California. Tr. 244.]

Patient M.B.

    After a review of M.B.'s patient file, CURES report and related 
prescriptions, Dr. Munzing observed that between January 5, 2018, and 
November 20, 2019, the Respondent prescribed hydrocodone and Adderall. 
Tr. 245. As with patient S.B., Dr. Munzing characterized the patient 
file as containing ``very little'' information. Tr. 245-47. The 
Respondent never obtained prior medical records of M.B. Tr. 288. Dr. 
Munzing observed that none of the subject prescriptions were within the 
California standard of care. Tr. 248, 289.
    On April 19, 2006, M.B. presented for his first visit. Tr. 248-49; 
GX 3, p. 88, 91. In his ``Comprehensive History and Physical 
Examination,'' the Respondent reported that M.B. presented with 
symptoms of ``chronic back pain, left knee pain, dyslipidemia.'' Tr. 
249-50. However, there are no appropriate diagnoses relating to the 
back and knee pain and therefore no legitimate medical purpose for 
prescribing hydrocodone.\*E\ Tr. 250-51, 258. To address the reported 
pain, the Respondent prescribed hydrocodone. Tr. 252. The file fails to 
evidence sufficient history to justify the pain prescriptions under the 
standard of care. Tr. 252-54. The file fails to evidence any physical 
exam to justify the pain prescriptions under the standard of care.\*F\ 
Tr. 254-55, 258, 287. The file fails to evidence any treatment plan or 
goals, or past drug abuse to justify the pain prescriptions under the 
standard of care. Tr. 254-55, 258, 287.
---------------------------------------------------------------------------

    \*E\ Dr. Munzing clarified that ``knee pain and back pain are 
really symptoms, and chronic back pain is essentially, you have a 
symptom that's there ongoing.'' Tr. 250. He further testified that 
these symptoms are not diagnoses, though Respondent treated them as 
such, and that the distinction is important because the way knee and 
back pain are treated differs ``depending on the more specific 
diagnoses or diagnosis causing the symptoms.'' Tr. 251.
    The Government's attorney and Dr. Munzing agreed about the 
importance of this distinction and the Government's attorney 
apologized in advance that he might refer to certain symptoms as 
diagnoses as ``shorthand,'' even though they both understood what he 
meant. Id.
    \*F\ Dr. Munzing testified, ``there was no back exam. There was 
no knee exam. Again, heart, lung, abdomen. There is a head, ear, 
eyes exam. . . . He, once again, did a testicular and a rectal exam. 
But there is no back and knee exam evident.'' Tr. 256.
---------------------------------------------------------------------------

    Although M.B. declared on a ``Declaration of Pain Medication Use'' 
form that he had no prior drug abuse in August 2009, which was three 
years after his first visit, such static declaration does not satisfy 
the physician's ongoing responsibility under the standard of care to 
monitor this issue [to determine whether the patient is ``currently 
using drugs.''] Tr. 259-61; GX 3 at 93.
    On July 9, 2013, M.B. presented with ADD and neck pain. Tr. 261-62; 
GX 3 at 46. He was prescribed Adderall for the ADD. Tr. 262. Again, the 
records reveal there was no history taken to support the diagnosis or 
justify the prescriptions for Adderall. Tr. 262. There was no evident 
evaluation done by the Respondent. Tr. 287. There was no treatment 
plan. Tr. 263. Although

[[Page 30569]]

there was a diagnosis related to the neck pain, there was no history or 
physical exam evident in the file. Tr. 263-64. The Respondent never 
established a legitimate medical purpose for hydrocodone. Tr. 264. On 
September 6, 2013, M.B. presented with ADD. Tr. 264-65; GX 3 at 46. He 
was prescribed Adderall for the ADD, but at double the dosage of the 
previous visit without any reported justification. Tr. 264-65.
    Dr. Munzing testified that on January 5, 2018, M.B. presented to 
the clinic. Tr. 265-66; GX 3 at 37. He was prescribed hydrocodone and 
Adderall. There was no medical history, assessment of M.B.'s response 
to treatment, evaluation of pain or functioning, substance abuse 
history, diagnoses, rationale for establishing a legitimate medical 
purpose for prescribing or to justify continuing the medication 
regimen. Tr. 265-66. On March 6, 2018, M.B. presented to the clinic 
with ``ADD and opioid dependency.'' Tr. 266-67; GX 3 at 36. Absent was 
any report of pain. He was diagnosed with ``Opioid dependency, refusing 
detox.'' Tr. 267. Hydrocodone as treatment for opioid dependency is not 
a legitimate medical purpose and is outside the usual course of 
professional practice. Tr. 268. He was prescribed hydrocodone, which 
not only is outside the standard of care, but is illegal in 
California.\*G\ Tr. 267-68. Dr. Munzing observed that the Respondent 
prescribed hydrocodone repeatedly to address his diagnosis of opioid 
dependency until November 20, 2019. Tr. 268-69. On November 20, 2019, 
M.B. presented with ADD and back pain. Tr. 269; GX 3 at 27. He was 
prescribed Adderall, and his hydrocodone was increased. Tr. 270. No 
medical history was taken or updated. No response to treatment or 
patient functionality was included. Although vital signs were taken, no 
physical or mental exam was performed. Tr. 270-71. There was no 
appropriate diagnosis for the back pain. Tr. 272. There was no 
evaluation for ADD, such as mental functioning. Tr. 271, 274, 287-88. 
The Respondent never obtained a sufficient history to support the 
diagnosis for ADD. Tr. 273. There was no appropriate diagnosis for ADD. 
Tr. 272.
---------------------------------------------------------------------------

    \*G\ As written, this language suggests that there is a specific 
California law prohibiting hydrocodone prescriptions for individuals 
who are opioid dependent and refusing detox. The Government did not 
introduce specific evidence of any such law. However, the 
Government, through Dr. Munzing's testimony, has established that 
opioid dependency is not a legitimate medical purpose for 
prescribing hydrocodone and that such prescriptions are outside the 
usual course of professional practice. Furthermore, the Government 
has established that prescribing without a legitimate medical 
purpose and outside of the usual course of professional practice is 
a violation of Cal. Health & Safety Code Sec.  11153(a). 
Accordingly, I agree that the conduct is illegal and have moved the 
sentence for clarity.
---------------------------------------------------------------------------

    [Dr. Munzing, in summary, testified that Respondent never took a 
proper medical or mental health history and never conducted a 
sufficient physical or mental health examination for M.B.'s relevant 
diagnoses; therefore, he never made an appropriately supported 
diagnosis. Tr. 273-74. Accordingly,] the Respondent never established a 
legitimate medical purpose to prescribe either hydrocodone or Adderall 
to M.B. throughout the reported treatment. Tr. 274. Dr. Munzing opined 
that such prescriptions were not issued in the usual course of 
professional practice, were not for a legitimate medical purpose, and 
were outside the standard of care. Tr. 274-75.
    Dr. Munzing noted the inconsistency of the various diagnoses. 
Diagnoses would come and go within the records. Tr. 275-278; GX 3 at 
35, 37, 43, 67. Although the recorded diagnoses were always treated 
with hydrocodone, the diagnoses varied greatly; [in 2009, it was 
prescribed for shoulder pain, in 2013, it was prescribed for neck pain, 
in 2014, it was prescribed for back pain, in 2018, it was prescribed 
for opioid dependency, and sometimes there was no diagnosis whatsoever 
given for the hydrocodone prescribed. Tr. 275-78.] Yet no explanation 
for the changing diagnoses is included in the file, as required by the 
standard of care. Tr. 278-80.
    Dr. Munzing noted the serious dangers occasioned by the combination 
of Adderall and hydrocodone by reference to his testimony regarding 
S.B.'s similar prescriptions.\7\ Tr. 281. Dr. Munzing deemed this 
combination of medications for over ten years inappropriate and unsafe. 
Tr. 284. The only semblance of a warning to M.B. regarding these 
dangerous combinations appeared in a 2009 ``Controlled Substance 
Therapy Agreement.'' For the same reasons as Patient S.B., Dr. Munzing 
deemed the signed form wholly insufficient to satisfy the California 
standard of care in this regard. Tr. 281-82; GX 3 at 92. Similarly, the 
notation within the file, ``SED'' was insufficient to satisfy the 
standard of care. Tr. 283. Dr. Munzing also testified that there was 
never a UDS ordered for M.B., which was necessary under the standard of 
care for any patient receiving opioids, but especially for a patient 
who has refused opioid detox. Tr. 284-85. A patient diagnosed with 
opioid dependency and refusing detox is also a red flag of abuse and 
diversion. Such red flag was not appropriately addressed by the 
Respondent repeatedly as to M.B. Tr. 285-87; GX 3 at 36.
---------------------------------------------------------------------------

    \7\ On September 29, 2017, and monthly from July 2018, to July, 
2019, S.B. was prescribed hydrocodone and Adderall. Besides the 
serious risk of addiction posed by these two Schedule II 
medications, the hydrocodone was prescribed at a daily dosage of 60 
mg MME, which significantly increases the risk of overdose and 
death. This risk was increased by its combination with Adderall. Tr. 
206-07. Dr. Munzing could not foresee a medical condition in which 
this combination would be appropriate. Tr. 211-12.
---------------------------------------------------------------------------

    [Dr. Munzing, summarizing his opinions based on his review of the 
entire file for M.B., testified that Respondent never took a proper 
medical or mental health history, never conducted a sufficient physical 
or mental health examination for M.B.'s relevant diagnoses, never made 
an appropriately supported diagnosis, never recorded M.B.'s pain and 
functionality level, never documented an appropriate treatment plan 
with goals or objectives, never appropriately documented discussion of 
the risks of the prescribed controlled substances with M.B., never 
appropriately monitored M.B. for medication compliance and failed to 
appropriately respond to red flags of diversion. Tr. 287-89. 
Accordingly, Dr. Munzing opined that each of the relevant prescriptions 
Respondent issued to M.B. were issued without a legitimate medical 
purpose, outside the usual course of professional practice and beneath 
the standard of care in California. Tr. 289-90.]

Patient B.C.

    Dr. Munzing reviewed the subject prescriptions, patient file and 
CURES report for Patient B.C., which he described as containing ``very 
little.'' Tr. 290-92; GDX 3. He opined that the subject controlled 
substance prescriptions issued for hydrocodone, Xanax and Adderall, 
from January 25, 2017, to December 19, 2019, were all issued outside 
the California standard of care. Tr. 290-92, 335-38. B.C. presented on 
March 27, 2014, with GAD and back pain. Tr. 293-94; GX 5 at 48, 55. 
B.C. was diagnosed with GAD and back pain, refusing detox. He was 
prescribed Xanax (6 mg per day) for the GAD, and hydrocodone for the 
back pain, refusing detox. Tr. 294. Dr. Munzing reiterated the risks 
involved in prescribing 6 mg of Xanax per day. Tr. 295.
    The records failed to disclose the minimum history necessary under 
the standard of care to appropriately diagnose ``back pain'' and GAD 
[or to prescribe controlled substances to treat those conditions.] Tr. 
295-96. Other than limited vital signs, the records failed to disclose 
the minimum physical examination necessary under the

[[Page 30570]]

standard of care to appropriately diagnose ``back pain,'' or to justify 
a hydrocodone prescription. Tr. 296-97. Dr. Munzing could not remember 
seeing any prior medical records in the Respondent's subject files. Tr. 
297. There were no entries in B.C.'s file indicating physical or mental 
functioning. Tr. 298, 335-38. There was no treatment plan indicated. 
The Declaration of Pain Medication Use, signed by B.C. at his first 
visit, as discussed previously, is insufficient to evaluate B.C. and to 
establish informed consent for the controlled substances prescribed. 
Tr. 299-300. There was insufficient medical evidence to support either 
diagnosis. Tr. 298, 335-38. Accordingly, there was no legitimate 
medical purpose for either controlled substance prescription. Tr. 299, 
335-38.
    B.C. presented on May 20, 2014, with ADD and was prescribed 
Adderall. Tr. 301-02; GX 5 at 47. The ADD diagnosis was deficient, as 
no history was developed, no mental functioning was assessed, the 
medical evidence was deficient, and a treatment plan was lacking. The 
Respondent failed to establish a legitimate medical purpose for 
prescribing Adderall. Tr. 302. Additionally, starting B.C. on 30 mg of 
Adderall twice daily is a very high dosage, and extremely inappropriate 
to an Adderall naive patient, which is not developed within the patient 
file. Tr. 302-03.
    According to Dr. Munzing, B.C. presented on January 25, 2017, with 
ADD, opioid dependency and GAD. Tr. 303; GX 5 at 33. He was diagnosed 
with ADD for which he was prescribed Adderall, and GAD for which he was 
prescribed Xanax (6 mg per day). Tr. 304. Pain levels were not reported 
at this visit. The diagnoses were unsupported by sufficient medical 
history, medical evaluation, response to treatment, patient 
functionality, and medical evidence. Tr. 304-06. He failed to establish 
a legitimate medical purpose for both Adderall and Xanax. Tr. 306, 335-
38. The Respondent further diagnosed, ``Opioid dependency, refusing 
detox'' for which the Respondent again prescribed hydrocodone. Tr. 306. 
Hydrocodone as treatment for opioid dependency is not a legitimate 
medical purpose and is outside the usual course of professional 
practice. Tr. 307. Prescribing hydrocodone for opioid dependence is not 
only outside the standard of care, but it is illegal in California. Tr. 
307. A patient diagnosed with opioid dependency and refusing detox is 
also a red flag of abuse and diversion. Such red flag was not addressed 
by the Respondent repeatedly as to B.C. Tr. 306-07; GX 5, at 33.
    On July 31, 2018, B.C. presented with ADD, back pain and GAD. Tr. 
308; GX 5 at 28. He was diagnosed with ADD for which he was prescribed 
Adderall (60 mg per day), ``back pain, opiate dependent, refusing 
detox'' for which he was prescribed hydrocodone, and GAD for which he 
was prescribed Xanax (6 mg per day). Tr. 308. There was no medical 
history supporting the prescriptions. There was no indication how the 
patient was responding to treatment and no indication that a physical 
exam was performed to support the diagnoses or justify the 
prescriptions. Tr. 308-09, 335-38. There was no reference to pain 
levels or physical functionality. Tr. 309-10. There was no reference to 
mental functioning with respect to the ADD and GAD diagnoses. Though 
three diagnoses were recorded, Dr. Munzing testified that none of them 
were appropriate. Tr. 309-10. Neither did Respondent establish a 
legitimate medical purpose for the three controlled substance 
prescriptions. Tr. 311.
    B.C. presented on December 19, 2019, with ADD and back pain, which 
were also his diagnoses, and for which he was prescribed Adderall (60 
mg per day) and hydrocodone. Tr. 311-12; GX 5 at 20. The record is 
lacking documentation of a medical history, any updated medical 
history, the patient's state of health, how he is responding to 
treatment, a physical exam, pain levels, mental or physical 
functioning, appropriate rationale for continued treatment, and 
information relating to drug abuse. Tr. 312-13, 335-38. As a result, 
the three diagnoses are without sufficient medical evidence. Tr. 313. 
Dr. Munzing testified that each of the controlled substance 
prescriptions were issued without a legitimate medical purpose, outside 
the usual course of professional practice, and beneath the standard of 
care. Tr. 313-16, 335-38.
    Dr. Munzing noted the inconsistency of diagnoses throughout B.C.'s 
records and the dual prescribing of hydrocodone, sometimes for opioid 
abuse, sometimes for skeletal pain, and sometimes for both, without 
explanation in the record. Tr. 316-19; GX 5 at 31, 32, 33. [Dr. Munzing 
explained that it ``would be important to document [what is] going on 
here.'' Tr. 318.] Dr. Munzing noted the GAD and ADD diagnoses appear 
and disappear within the record, as do their treatment medications 
without explanation. Tr. 319-24; GX 5 at 27, 31, 32, 33. Dr. Munzing 
deemed it highly unlikely that ADD and GAD were appropriate 
diagnoses.\*H\ Tr. 322, 324.
---------------------------------------------------------------------------

    \*H\ Dr. Munzing's opinion regarding the credibility of any 
assigned diagnosis is not particularly relevant to my analysis. 
Here, the standard of care requires that a diagnosis be based on a 
patient's history and physical examination. See infra, The Standard 
of Care for Prescribing. Accordingly, where, as here, Dr. Munzing 
has testified that the diagnosis was not adequately supported by the 
patient's history and physical examination, then I find that, based 
on his expert testimony, the diagnosis is inadequate to serve as the 
basis for the prescribed prescriptions. This is true whether or not 
a practitioner acting in the usual course of professional practice 
could have properly reached the same diagnosis for that individual.
---------------------------------------------------------------------------

    Dr. Munzing also testified that the Respondent prescribed B.C. a 
combination of hydrocodone, Adderall and Xanax. Tr. 327; GDX 3. Dr. 
Munzing could not conceive of a medical condition warranting this 
dosage, duration, and combination of medications, noting Adderall is 
counter-indicated for GAD, and combining Xanax with an opioid 
represents a dangerous combination that is contrary to an FDA black box 
warning and CDC guidance. Tr. 327-29, 332-33; GDX 3. A further concern, 
as detailed earlier in his testimony, is reflected by the repeated 
combination of hydrocodone and Adderall by the Respondent. Tr. 329-30; 
GDX 3. These dangerous combinations were prescribed without an 
established legitimate medical purpose, outside the usual course of 
professional practice, without sufficient warnings and informed 
consent, without sufficient patient monitoring, and without regard to 
obvious red flags. Tr. 330-35.
    [Dr. Munzing, summarizing his opinions based on his review of the 
entire file for B.C., testified that Respondent never took a proper 
medical or mental health history, never conducted a sufficient physical 
or mental health examination for B.C.'s relevant diagnoses, never made 
an appropriately supported diagnosis, never recorded B.C.'s pain and 
functionality level, never documented an appropriate treatment plan 
with goals or objectives, never appropriately documented discussion of 
the risks of the prescribed controlled substances with B.C., never 
appropriately monitored B.C. for medication compliance and failed to 
appropriately respond to red flags of diversion. Tr. 335-37. 
Accordingly, Dr. Munzing opined that each of the relevant prescriptions 
Respondent issued to B.C. were issued without a legitimate medical 
purpose, Tr. 330, outside the usual course of professional practice and 
beneath the standard of care in California. Tr. 330, 338.]

[[Page 30571]]

Patient J.C.

    Dr. Munzing reviewed the subject prescriptions issued from January 
16, 2018, to December 30, 2019, patient records and CURES data relating 
to Patient J.C. Tr. 381-82; GDX 4. Dr. Munzing opined that none of the 
subject prescriptions issued to J.C. were issued within the California 
standard of care. Tr. 382. J.C. presented to the Respondent's clinic on 
May 18, 2009, with a headache and GAD. Tr. 383-384; GX 7, at 216, 233. 
He was prescribed hydrocodone for migraine and Xanax for GAD and 
remained on this medication regimen for a long period. As to the 
migraine diagnosis, insufficient medical history was obtained, symptom 
evaluation was absent, no neurological exam was conducted, no 
evaluation of functioning level was made, no treatment plan was 
evident, and no evaluation of possible drug abuse was provided. Tr. 
384-90. In short, there was insufficient medical evidence to support 
the diagnoses of migraines and GAD, nor was there a legitimate medical 
purpose to prescribe hydrocodone and Xanax. Tr. 386-88.
    [On August 17, 2009, J.C. signed a ``Declaration of Pain Medication 
Use'' form indicating that he had no prior drug abuse, and Dr. Munzing 
testified that there is no record of J.C. ever being asked about 
illicit substance abuse again. Tr. 389-90. Dr. Munzing testified that 
the 2009 Declaration was an insufficient inquiry to cover Respondent's 
prescribing during the relevant period. Id.]
    J.C. presented on July 21, 2016, with ``GAD, chronic back pain, 
consented for H&P.'' Tr. 390; GX 7 at 189. He was diagnosed with GAD 
and back pain--refusing detox for which he was prescribed Xanax and 
hydrocodone, respectively. Tr. 390-91. There was no updated history 
taken for either diagnosis, no physical exam, no treatment plan, no 
response to treatment, no pain or functioning level evaluations, no 
discussion regarding drug abuse, and no rationale for continued 
treatment, as required by the standard of care. Tr. 390-94. There was 
deficient medical evidence to support either diagnosis. The Respondent 
did not establish a legitimate medical purpose to prescribe the 
controlled substances. Tr. 393-94. J.C. presented on January 16, 2018, 
with GAD and back pain for which he was diagnosed with GAD and back 
pain, opiate dependent, refused detox. Tr. 394-95; GX 7 at 180. He was 
prescribed Valium for the GAD (Klonopin was discontinued), and 
hydrocodone for back pain, although no explanation was given for 
substituting the Valium for the Klonopin. Tr. 395. There was no medical 
history included in the records, no response to treatment, no physical 
exam, no pain or functioning evaluation, no drug abuse history, 
rendering each diagnosis inappropriate. Tr. 395-97. Without a 
legitimate medical purpose, there was no appropriate rationale for 
continued treatment with controlled substances. Tr. 396-98. J.C. 
presented on February 16, 2018, with ``opioid dependency, GAD,'' yet 
without the previously noted back pain. Tr. 398; GX 7, 9. There was no 
reference to pain. He was diagnosed with ``Opioid dependency, refusing 
detox'' for which he was prescribed hydrocodone, which again, is 
outside the usual course of professional practice and illegal in 
California. Tr. 398-400. The diagnosis for opioid dependency that was 
treated with hydrocodone appeared repeatedly in the records. Tr. 399. 
J.C. presented on May 6, 2019, however no treatment notes for this 
visit are evident in the file. Tr. 401; GX 4, GX 7 at 168.
    On April 9, 2019, J.C. presented with GERD and back pain for which 
he was prescribed hydrocodone. Tr. 402. However, there was no medical 
history included in the records, no response to treatment, no adequate 
physical exam, no pain or functioning evaluation, no mental health 
history, and no drug abuse history, which rendered the back pain 
diagnosis inappropriate. Tr. 402-04. Without a legitimate medical 
purpose, there was no appropriate rationale for continued treatment 
with controlled substances. Tr. 402-04. On December 30, 2019, J.C. 
presented with GERD and GAD. Tr. 404; GX 7, p. 171. He was prescribed 
Valium for the GAD. However, there was no appropriate medical history 
included in the records, no response to treatment, no documented 
evaluation for GAD or functioning evaluation, no mental health history, 
and no drug abuse history, rendering the GAD diagnosis inappropriate 
from January 16, 2018, to December 30, 2019. Tr. 404-08, 425-28. 
Without a legitimate medical purpose, there was no appropriate 
rationale for continued treatment with controlled substances. Tr. 408, 
425-28. Such prescriptions, from January 16, 2018, to December 30, 
2019, were issued outside the standard of care, without legitimate 
medical purpose and outside the usual course of professional practice. 
Tr. 408, 425-28.
    Dr. Munzing noted the inconsistency of diagnoses throughout J.C.'s 
records, and the dual prescribing of hydrocodone for opioid abuse, 
migraines, and for skeletal (sometimes neck, sometimes back) pain, 
without documenting an explanation for the changes in the record. Tr. 
410-14; GX 7 at 188, 189, 205, 214, 215. [There was never any 
discussion regarding ``where one condition was going and another was 
coming from'' as Dr. Munzing agreed ``would be important for a 
practitioner acting within the standard of care to understand'' and to 
document. Tr. 414.] Dr. Munzing noted the skeletal pain diagnoses 
appears and disappears within the record. Tr. 414-15. Dr. Munzing 
suspected the skeletal pain complaints were not legitimate. Tr. 415; GX 
7 at 188, 189, 205, 214, 215. Dr. Munzing noted the Respondent had 
prescribed a combination of hydrocodone and Valium monthly between 
January 2018 and January 2019 without a legitimate medical purpose. Tr. 
416-17; GX 4. Combining Valium with an opioid represents a dangerous 
combination and is contrary to an FDA black box warning and to CDC 
guidance, especially with the Valium at its highest available strength. 
Tr. 417. Dr. Munzing could not envision a condition for which this 
medication regimen would be appropriate treatment. Tr. 418. These 
dangerous combinations were prescribed without an established 
legitimate medical purpose, outside the usual course of professional 
practice, without sufficient warnings and informed consent, without 
sufficient patient monitoring,\*I\ and without addressing obvious red 
flags. Tr. 418-23; GX 7 at 19, 25, 27, 180, 225.
---------------------------------------------------------------------------

    \*I\ Dr. Munzing testified that given the prescribed combination 
of medications and how ``highly sought after [they are] in the drug 
abusing community,'' it would have been ``[v]itally important'' to 
conduct appropriate ongoing monitoring, which was not done and was 
therefore outside the standard of care here. Tr. 421.
---------------------------------------------------------------------------

    [Dr. Munzing, summarizing his opinions based on his review of the 
entire file for J.C., testified that Respondent never took a proper 
medical or mental health history, never conducted a sufficient physical 
or mental health examination for J.C.'s relevant diagnoses, never made 
an appropriately supported diagnosis, never recorded J.C.'s pain and 
functionality level, never documented an appropriate treatment plan 
with goals or objectives, never appropriately documented discussion of 
the risks of the prescribed controlled substances with J.C., never 
appropriately monitored J.C. for medication compliance and failed to 
appropriately respond to red flags of diversion. Tr. 424-27. 
Accordingly, Dr. Munzing opined that each of the relevant prescriptions 
Respondent issued to J.C. were issued without a legitimate medical 
purpose, outside the usual course of professional

[[Page 30572]]

practice and beneath the standard of care in California. Tr. 428.]

Patient D.D.

    Dr. Munzing reviewed the subject prescriptions issued from January 
4, 2018, to February 12, 2019, patient records and CURES data relating 
to Patient D.D. Tr. 428-29; GDX 5. Dr. Munzing opined that none of the 
subject prescriptions issued to D.D., which were for hydrocodone, Soma, 
and Xanax, were within the California standard of care. Tr. 430. Again, 
the records contained ``very little information.'' Tr. 429. D.D. 
presented on July 9, 2008, with GAD and back pain. Tr. 430-31 GX 9 at 
74. For the GAD, he was prescribed Valium. For back pain, he was 
prescribed hydrocodone and Soma. Tr. 431. The medical records reflect 
that D.D. refused an MRI and refused referral to orthopedist or a pain 
specialist. Tr. 431. According to Dr. Munzing, each refusal is a red 
flag, and suggestive of drug-seeking behavior. Tr. 432. [``Those are 
huge red flags. [For] someone who truly wants to be treated for back 
pain to be refusing kind of ways to try to improve that or to better 
diagnose it through an MRI or an evaluation from a subspecialist are 
just enormous red flags and certainly brings in the distinct 
possibility [he] is here seeking drugs rather than really trying to get 
his pain managed.'' Tr. 432.] Instead of addressing the red flags, the 
Respondent prescribed opioids. Tr. 432. The Respondent's response was 
the same throughout the subject treatment of D.D., a total of nine and 
a half years. Tr. 433.
    According to Dr. Munzing, there was no appropriate medical history 
included in the records, no response to treatment, no physical exam, 
insufficient patient monitoring, no evaluation for GAD, no functioning 
evaluation, no mental health history, no drug abuse history, no 
discussion of risk factors and informed consent, and no patient 
monitoring, rendering the GAD and back pain diagnoses inappropriate 
from July 9, 2008, to January 4, 2019. Tr. 433-38; GX 9 at 37, 39, 41, 
43, 44. Without a legitimate medical purpose, there was no appropriate 
rationale for continued treatment with controlled substances. Tr. 434-
48. Such prescriptions, from July 9, 2008, to January 4, 2019,\*J\ were 
issued outside the standard of care, without legitimate medical purpose 
and outside the usual course of professional practice. Tr. 434-48.
---------------------------------------------------------------------------

    \*J\ Only the prescriptions issued between January 4, 2018, and 
February 12, 2019, were alleged in the OSC and are relevant to my 
decision.
---------------------------------------------------------------------------

    [On January 11, 2019, D.D. was diagnosed with GERD and ``back 
pain--opiate dependent refusing detox.'' Tr. 439. This is the last time 
Respondent prescribed D.D. both hydrocodone and Soma, but the medical 
records again reflected a lack of appropriate medical history, response 
to treatment, an appropriate physical examination, assessment of pain 
or physical functionality, an appropriate diagnosis, or an established 
legitimate medical purpose for the prescriptions. Tr. 439-40. On 
February 12, 2019, Respondent prescribed D.D. hydrocodone to treat 
opioid dependency--refusing detox without there being any mention of 
pain. Dr. Munzing testified that this was outside the standard of care 
for all of the reasons he had previously testified. Tr. 441-42. Dr. 
Munzing testified that at no point during the treatment period did 
Respondent ever obtain a sufficient history to establish a diagnosis 
for back pain or support prescribing of hydrocodone and that the 
prescriptions for hydrocodone and Soma were not issued within the usual 
course of professional practice and were outside the standard of care. 
Tr. 443-44.'']
    Dr. Munzing noted a period of over a year when no diagnosis for GAD 
appeared in D.D.'s records, from May 10, 2017, to September 19, 2018, 
and the 30 mg daily dose of Valium was stopped. Tr. 447-48. Then on 
September 19, 2018, the Respondent was placed on 6 mg of Xanax, which 
is a very high dosage especially for the beginning dosage. [Dr. Munzing 
testified that Respondent failed to obtain sufficient medical evidence 
upon which to base a GAD diagnosis. Tr. 446.] Compounding this 
dangerous dosage of Xanax, D.D. was prescribed hydrocodone in 
combination, which heightened the risk of overdose [without any warning 
from Respondent regarding the dangers of the controlled substances 
being prescribed.] Tr. 446, 448-50, 458. [Dr. Munzing testified that 
there was no established legitimate medical purpose for prescribing 
Xanax to D.D. Tr. 446.]
    Dr. Munzing noted the inconsistency of diagnoses throughout D.D.'s 
records and the dual prescribing of hydrocodone and Soma for 
fibromyalgia, opioid abuse, and skeletal pain (namely back pain or neck 
pain), without a documented explanation in the record. Tr. 450-56; GX 9 
at 43, 51, 64, 70; GDX 5. Dr. Munzing noted the skeletal pain diagnoses 
appear and disappear within the record. Tr. 450-56. Dr. Munzing 
suspected the skeletal pain complaints were not legitimate. Tr. 456; GX 
9 at 43, 51, 64, 70. Prescribing Soma with hydrocodone presents 
considerable risks to the patient. Each are respiratory depressants, 
which presents a significant risk of overdose, [and each is highly 
abused.] Tr. 458. [Dr. Munzing also reiterated the risks of prescribing 
both hydrocodone and Xanax together. Tr. 458. Dr. Munzing testified 
that in 2009, D.D. signed ``the same controlled substance therapy 
agreement we've seen with the previous four patients,'' and it was 
insufficient notice of the risks of using controlled substances for the 
reasons already discussed. Tr. 458-59. Dr. Munzing further testified 
that the record is lacking any documentation that Respondent adequately 
warned D.D. of the risks of the controlled substances he was taking, 
particularly in light of the various combinations and high dosages. Tr. 
459-60.]
    D.D. presented on March 23, 2019, with opioid dependency, refusing 
detox, which is a red flag. He was again prescribed hydrocodone and 
Soma. Tr. 463; GX 9 at 42, 43. [Dr. Munzing reiterated his testimony 
that hydrocodone is not an appropriate treatment for opioid dependency 
and added that neither is Soma. Tr. 454-55. Accordingly, Dr. Munzing 
testified, every relevant prescription for hydrocodone and/or Soma that 
was issued to treat opioid dependency was issued outside the standard 
of care. Tr. 455.] The Respondent failed to address this red flag 
repeatedly, instead prescribing Soma and hydrocodone. Tr. 465.
    [Dr. Munzing, summarizing his opinions based on his review of the 
entire file for D.D., testified that Respondent never took a proper 
medical or mental health history, never conducted a sufficient physical 
or mental health examination for D.D.'s relevant diagnoses, never made 
an appropriately supported diagnosis, never recorded D.D.'s pain and 
functionality level, never documented an appropriate treatment plan 
with goals or objectives, never appropriately documented discussion of 
the risks of the prescribed controlled substances with D.D., never 
appropriately monitored D.D. for medication compliance and failed to 
appropriately respond to red flags of diversion. Tr. 465-68. 
Accordingly, Dr. Munzing opined that each of the relevant prescriptions 
Respondent issued to D.D. were issued without a legitimate medical 
purpose, outside the usual course of professional practice and beneath 
the standard of care in California. Tr. 468.]

Patient J.M.

    Dr. Munzing reviewed the subject prescriptions and fill stickers 
issued from January 10, 2017, to December 31,

[[Page 30573]]

2019, patient records and CURES data relating to Patient J.M. Tr. 469-
70; GDX 6. [Again Dr. Munzing testified there was ``very little 
information'' in the patient's medical records. Tr. 470.] Dr. Munzing 
opined that none of the subject prescriptions issued to J.C., namely 
for hydrocodone, Xanax and Soma, were issued within the California 
standard of care. Tr. 470-71.
    On May 13, 2007, J.M. presented with hypertension, back pain, GAD, 
dyslipidemia and insomnia. Tr. 470-72; GX 7 at 104, 111. He was 
diagnosed with hypertension, back pain, GAD, dyslipidemia and insomnia. 
He was prescribed hydrocodone for back pain and Xanax (6 mg per day) 
for GAD. Tr. 472. Xanax and hydrocodone were recurring prescriptions. 
As discussed, the high dosage of Xanax was a concern to Dr. Munzing, as 
well as its combination with an opioid. Tr. 473.
    According to Dr. Munzing, there was no appropriate medical history 
included in the records, no response to treatment, no physical exam of 
the back or other areas of issue, insufficient patient monitoring, no 
evaluation for GAD, no treatment plan, no pain or functioning 
evaluation, no mental health history, no ongoing drug abuse history or 
monitoring, no discussion of risk factors and informed consent, and no 
patient monitoring, which rendered the GAD and back pain diagnoses 
inappropriate from May 13, 2007, to January 13, 2017. Tr. 473-76, 478, 
481-83, 485-500. The MRI dated May 30, 2007, and its ``mild'' findings, 
did not independently satisfy the Respondent's obligations or justify 
the subject prescriptions. Tr. 479-80, 485-87; GX 11 at 14, 16, 17, 22, 
26, 31, 37, 41, 42, 115. [Dr. Munzing testified that for the five 
visits between January 10, 2017, through March 27, 2017, there is so 
little documentation that Dr. Munzing cannot tell whether the records 
reflect ``actual visits'' or just ``documentation of a refill of the 
medication.'' Tr. 482-85. This is because, according to Dr. Munzing, 
the records lack examination or history notations, documentation of the 
dose or strength prescribed, diagnoses, nothing to meet the standard of 
care for prescribing hydrocodone and Xanax for that period. Tr. 482-85.
    The first prescription for Soma during the relevant time period was 
on April 13, 2017, and according to Dr. Munzing, the medical note said 
``Xanax number 90, Soma number 50SED, and then a signature'' with 
absolutely nothing else recorded and none of the elements of the 
standard of care met. Tr. 485-86. Dr. Munzing testified specifically 
about selected office visits. On April 25, 2018, Respondent's records 
for J.M. contain information suggesting an office visit occurred, but 
they continue to have the same deficiencies. That day, J.M. was not 
diagnosed with pain, but with GAD and opioid dependence--refusing 
detox, which was treated with hydrocodone. Tr. 487. Dr. Munzing 
reiterated his concern that hydrocodone is not appropriate treatment 
for opioid dependence and was inappropriate each time it was prescribed 
for that purpose. Tr. 488. Dr. Munzing testified about the November 19, 
2018 visit during which J.M. was prescribed Xanax for GAD and Soma for 
back pain; the February 20, 2019 visit during which he was prescribed 
Xanax for GAD and hydrocodone for back pain; and the December 31, 2019 
visit during which he was prescribed Xanax for GAD and was not 
diagnosed with back pain. Tr. 489, 492-93, 495. Dr. Munzing again 
testified, amongst other things, that for each of these visits, there 
was an insufficient medical history or physical examination to make the 
diagnoses, there was no information regarding the response to 
treatment, pain level, or functionality, and there was no legitimate 
medical purpose established for the prescriptions at issue. Tr. 489-91, 
493-97.] Without a legitimate medical purpose, there was no appropriate 
rationale for the controlled substance prescriptions, or to continue 
treatment with controlled substances. Tr. 473-76, 478, 485-500, 505; 
GDX 7.
    There were also red flags left unaddressed by the Respondent. J.M. 
refused to see a pain specialist, which gives rise to the suspicion 
that he is not concerned about getting better, but just getting 
medicated. Tr. 476-77.\*K\ Dr. Munzing noted that there were gaps in 
prescribing hydrocodone and Soma without any required explanation for 
changes to the medication regimen. Tr. 500-04; GX 11 at 36, 37, 40, 41, 
42, 76. He observed that the hydrocodone was prescribed either for back 
pain or for opioid dependence. Tr. 504. However, as with the other 
patients, the required evaluation for the diagnoses coming and going 
and explanation for treatment is lacking. This further diminishes any 
medical legitimacy for prescribing hydrocodone. Tr. 504.
---------------------------------------------------------------------------

    \*K\ Omitted for relevance.
---------------------------------------------------------------------------

    Additionally, on multiple occasions the Respondent prescribed a 
very addictive and dangerous combination of medications including an 
opioid and a benzodiazepine. Tr. 558-60. Even more concerning, he added 
a muscle relaxant, to this already dangerous combination to form the 
``Holy Trinity,'' which is a favorite drug combination for abuse. Tr. 
505-10. Dr. Munzing could not conceive of a medical condition in which 
the trinity combination would represent appropriate treatment. Tr. 512. 
This trinity of medications was prescribed to J.M. repeatedly. GDX 6. 
The file fails to reveal whether appropriate warnings were given to 
J.M. in connection with this dangerous combination. Tr. 511; GX 11 at 
113. The CURES report reveals that 40 Xanax prescriptions (totaling 
3600 dosage units and 7200 mgs) were issued to J.M. over a period of 22 
months between January 2017 and November 2018. This means that 
Respondent was issuing a Xanax prescription to Respondent every 16 days 
on average for an average total of 10.5 mgs per day. Tr. 512-17, 527-
28; GX 7, 17, 18. Ten and a half mgs per day is considerably greater 
than the maximum 4 mg per day recommended for treatment of anxiety. The 
CURES report lists two different dates of birth for J.M., as well as 
two different spellings of his first name. Tr. 517-18, 547-49; GX 18. A 
CURES search would be name and date of birth specific, so a search by 
one name and date of birth would not reveal prescriptions filed under 
the alternate name and date of birth. Tr. 526. The main sources of the 
CURES report information are two pharmacies, Reliable Rexall and 
Northridge Pharmacy. Tr. 518-19. Despite the fact that J.M. was using 
different names and dates of birth at different pharmacies, which was a 
considerable red flag suggesting abuse or diversion, the Respondent did 
not address these issues. Tr. 519-20, 525-26. Even if J.M. or the 
pharmacies were the source of the alternate dates of birth and 
alternate first names, with due diligence, the Respondent would have 
discovered that a search by a single name and date of birth would only 
include half of the Xanax prescriptions the Respondent issued to J.M. 
Tr. 521-26, 549-50. [Dr. Munzing testified that there is ``nothing in 
the notes'' addressing this red flag.'' Tr. 550.] Additionally, two 
prescriptions, one written by the Respondent and one called in by the 
Respondent on the same day, contain two different dates of birth. Tr. 
533-34.
    The CURES report also reveals J.M. was alternating the filling of 
the Xanax prescriptions between the two pharmacies--which could 
indicate that he was trying to hide the bi-monthly frequency of the 
prescriptions. Tr. 520; GX 17, 18. Dr. Munzing noted this was a 
suspicious prescribing practice by the Respondent. Tr. 530; GX 17, # 
425 & 575.\8\ He would issue two prescriptions

[[Page 30574]]

on the same day to J.M., one for hydrocodone and one for Xanax. He 
would issue a written prescription for hydrocodone, which J.M. would 
invariably fill at Northridge Pharmacy, but would call in the Xanax 
prescription to Reliable pharmacy. Tr. 531-33, 535-45, 550-58; GX 11 at 
32, 33, 35, 36, 38, 40, 41, GX 12 at 5, 6, 10, 11, 14, 22, 24, 27, 33, 
34; GX 13, at 20, 25, 27, 32, 34; GX 17, 18 #473, #474, #994, #1120, 
#1228, #1386, #1472, #1553, #2102, #2229, #2341, #2342. Dr. Munzing 
testified that this could have been an attempt to avoid the suspicion 
generated by the opioid/benzodiazepine combination if filled at a 
single pharmacy. Tr. 532-33, 557-60. There was an additional suspicious 
circumstance related to a Xanax prescription. The Respondent wrote in 
his medical notes that the medication should be taken once every eight 
hours, but the call-in information to the pharmacy was once every six 
hours. Tr. 543-45, 554, 556-57. [Dr. Munzing testified ``[there is] not 
consistency between what [Respondent is] telling the pharmacist and 
what [he is] documenting in the progress note.'' Tr. 545.]
---------------------------------------------------------------------------

    \8\ These are prescription numbers.
---------------------------------------------------------------------------

    The red flag of refusing to detox was repeatedly evident within 
J.M.'s patient file. Tr. 562; GX 11 at 37. He was diagnosed with 
``Opioid dependency, refusing detox'' for which he was prescribed 
hydrocodone, which again, is outside the usual course of professional 
practice and illegal in California. Tr. 563-64. The diagnosis for 
opioid dependency being treated with hydrocodone appeared repeatedly in 
the records. The Respondent never addressed this red flag. Tr. 564.
    [Dr. Munzing, summarizing his opinions based on his review of the 
entire file for J.M., testified that Respondent never took a proper 
medical or mental health history, never conducted a sufficient physical 
or mental health examination for J.M.'s relevant diagnoses, never made 
an appropriately supported diagnosis, never recorded J.M.'s pain and 
functionality level, never documented an appropriate treatment plan 
with goals or objectives, never appropriately documented discussion of 
the risks of the prescribed controlled substances with J.M., never 
appropriately monitored J.M. for medication compliance and failed to 
appropriately respond to red flags of diversion. Tr. 564-67. 
Accordingly, Dr. Munzing opined that each of the relevant prescriptions 
Respondent issued to J.M. were issued without a legitimate medical 
purpose, outside the usual course of professional practice and beneath 
the standard of care in California. Tr. 567-68.] \*L\
---------------------------------------------------------------------------

    \*L\ This text replaces the ALJ's summary paragraph for 
consistency.
---------------------------------------------------------------------------

Patient K.S.

    Dr. Munzing reviewed the subject prescriptions and fill stickers 
issued from January 19, 2018, to January 31, 2019, patient records and 
CURES data relating to Patient K.S. Tr. 469-70; GDX 8. [Again Dr. 
Munzing testified there was ``very little'' information in the medical 
records. Tr. 569.] Dr. Munzing opined that none of the subject 
prescriptions issued to K.S., namely hydrocodone, Xanax and Adderall, 
were issued within the California standard of care. Tr. 568-70. K.S. 
presented on June 21, 2007, with ``back pain'' for which he was 
prescribed hydrocodone and Soma. Tr. 570; GX 13 at 117. Although the 
Respondent noted he would get an MRI for the lumbar spine, no such MRI 
appears in the records. Tr. 571. There was no medical history included 
in this record regarding back pain, no treatment plan, no response to 
treatment, no physical exam of the back or musculoskeletal area, no 
pain or functioning evaluation, no ongoing drug abuse history, 
rendering the back pain diagnosis inappropriate. Tr. 570-74. Without a 
legitimate medical purpose, there was no appropriate rationale for 
continued treatment with controlled substances for back pain. Tr. 571-
74.
    [On August 5, 2009, K.S. signed a ``Declaration of Pain Medication 
Use'' form indicating that he had no prior drug abuse, and Dr. Munzing 
testified that there is no record of K.S. ever being asked about 
illicit substance abuse again. Tr. 575. Dr. Munzing testified that the 
2009 Declaration was an insufficient inquiry to cover prescribing at 
any point in time when Respondent was treating K.S. Tr. 576.]
    On May 1, 2012, K.S. presented with GAD and neck pain. Tr. 576; GX 
14 at 80. He was diagnosed with GAD and neck pain, and prescribed Xanax 
for GAD and hydrocodone for the neck pain, refusing detox. Tr. 577. 
K.S. was prescribed a combination of hydrocodone and Xanax frequently 
throughout his treatment. This combination of an opioid and a 
benzodiazepine is dangerous, beneath the standard of care and 
represents a red flag unresolved by the Respondent throughout the 
records. Tr. 578-79. There was no medical history supporting the 
prescriptions. There was no indication of how the patient was 
responding to treatment. There was no treatment plan and no indication 
a physical exam was performed to support the diagnoses or justify the 
prescriptions. Tr. 579-81. There was no reference to pain levels or 
physical functionality. There was no reference to mental functioning 
with respect to the GAD diagnosis. There was no appropriate diagnosis 
for the GAD and neck pain. Respondent did not establish a legitimate 
medical purpose for the controlled substance prescriptions. Tr. 580-81.
    According to Dr. Munzing, K.S. presented on November 18, 2013, and 
was prescribed Adderall (60 mg per day) with no documented evaluation 
for or diagnosis of any condition that Adderall may treat. Tr. 581-82; 
GX 14 at 70. There is also no medical history, physical exam, or 
treatment plan, and accordingly, the subject prescription is without a 
legitimate medical purpose.\*M\ Tr. 582.
---------------------------------------------------------------------------

    \*M\ This sentence was modified for clarity.
---------------------------------------------------------------------------

    On January 19, 2018, K.S. presented with GAD, back pain and 
ADD.\*N\ Tr. 583, 599; GX 14 at 41. For GAD, the Respondent prescribed 
Xanax. For back pain--opioid dependent, refusing detox, the Respondent 
prescribed hydrocodone; and for ADD, Adderall. Tr. 584. The record is 
missing any medical history, any updated medical history, the patient's 
state of health, how he is responding to treatment, a physical exam, 
pain levels, mental or physical functioning assessment, appropriate 
rationale for continued treatment, and information relating to drug 
abuse. Tr. 583-86. As a result, the treatment is without sufficient 
medical evidence. Tr. 584-86. Accordingly, the subject charged 
prescriptions are without a legitimate medical purpose. Tr. 586.
---------------------------------------------------------------------------

    \*N\ Dr. Munzing testified that Respondent did not obtain 
sufficient medical evidence to diagnose K.S. with ADD at any point 
between the November 2013 visit and the January 2018 visit. Tr. 583.
---------------------------------------------------------------------------

    On February 27, 2018, K.S. presented with ADD, opioid dependency 
and GAD. Tr. 586-87, 599-600; GX 14 at 39, 40. He was diagnosed with 
ADD, opioid dependency-refusing detox, and GAD. Back pain was not 
reported, nor was any report of pain made. At the April 30, 2018 visit, 
again, back pain was not reported, nor was any report of pain made. Tr. 
601. Throughout the records, the Respondent failed to explain the 
appearance and disappearance of back pain. Tr. 601-02. Again, beneath 
the standard of care and against the law in California, K.S. was 
prescribed hydrocodone for opioid dependency, which Dr. Munzing 
testified was neither appropriate nor legal. Tr. 587-88. On November 
28, 2018, K.S. presented with opioid dependency and GAD for which

[[Page 30575]]

he was diagnosed with opioid dependency-refusing detox and GAD, and for 
which he was prescribed hydrocodone and Xanax respectively. Tr. 588-
589; GX 14 at 33; GDX 8. Again, beneath the standard of care and 
contrary to the law in California, K.S. was prescribed hydrocodone for 
opioid dependency. Tr. 588-89. And again, the medication regimen 
included the dangerous combination of an opioid and benzodiazepine. The 
record is missing any medical history, any updated medical history, the 
patient's state of health, how he is responding to treatment, a 
physical exam, pain levels, mental or physical functioning, any 
evaluation for GAD, appropriate rationale for continued treatment, and 
information relating to drug abuse. As a result, the treatment is 
without sufficient medical evidence. Tr. 588-89. Accordingly, the 
subject charged prescriptions were issued without a legitimate medical 
purpose, outside the usual course of professional practice, and beneath 
the standard of care. Tr. 590.
    On December 11, 2018, K.S. presented with ADD and eczema for which 
he was diagnosed with ADD and eczema. Tr. 591; GX 14 at 33. For ADD, he 
was prescribed Adderall. [Dr. Munzing testified that the Adderall 
prescription lacked a legitimate medical purpose for the same reasons 
as the prior prescriptions he had just discussed. Tr. 591-93.] On 
January 31, 2019, K.S. presented with and was diagnosed with back pain 
and stomatitis. Tr. 593-94; GX 14 at 31. For the back pain he was 
prescribed hydrocodone. [Again, Dr. Munzing testified that the 
hydrocodone prescription lacked a legitimate medical purpose for the 
same reasons as the prior prescriptions he had just discussed. Tr. 594-
95.]
    A review of the entirety of K.S.'s subject medical records reveals 
that the Respondent never obtained any prior medical records. Tr. 596, 
619. The record is missing an adequate prior medical history, any 
updated medical history, the patient's state of health, how he is 
responding to treatment, a physical exam, pain levels, mental or 
physical functioning, any evaluation for GAD, appropriate rationale for 
continued treatment, and information relating to drug abuse. As a 
result, the treatment is without sufficient medical evidence. Tr. 598-
99, 620. Accordingly, the subject charged prescriptions were issued 
without a legitimate medical purpose, outside the usual course of 
professional practice, and beneath the standard of care. Tr. 597-98, 
619-20.
    [Dr. Munzing testified that, similar to the other patients, 
Respondent prescribed hydrocodone to K.S. for back pain, then neck 
pain, then for opioid dependency, and sometimes for a combination of 
these reasons, without any documentation regarding these changes or the 
coming and going of the pain issues as would be required by the 
standard of care. Tr. 598-602.] Dr. Munzing also noted the 
inconsistency of the GAD diagnoses throughout the records. Tr. 602-05; 
GX 14 at 31, 42, 47, 48. With the GAD diagnoses appearing and 
disappearing within the records and without any explanation, Dr. 
Munzing observed there is no medical evidence it was a medically 
legitimate diagnosis. Tr. 605-09; GX 8. Similarly, ADD was 
inconsistently diagnosed with Adderall inconsistently prescribed. Tr. 
605-06; GX 14 at 34, 35; GX 8. With the ADD diagnoses appearing and 
disappearing within the records and without any explanation, Dr. 
Munzing observed there is no medical evidence it was a medically 
legitimate diagnosis. Tr. 609.
    Dr. Munzing noted the Respondent prescribed a dangerous combination 
of medications, including hydrocodone, Adderall and Xanax, which was 
prescribed from January 2018, through August 2018. Tr. 609-10. Dr. 
Munzing noted it is referred to by drug abusers as the ``new Holy 
Trinity.'' Tr. 610. Additionally, the combination of an opioid and a 
benzodiazepine is present in August, October and November 2018. Tr. 
610-11. The records fail to reveal that the appropriate warnings were 
conveyed to K.S., or that informed consent was obtained. Tr. 611-13; GX 
8. Dr. Munzing could not conceive of a medical condition warranting the 
dangerous combinations of medications prescribed. Tr. 614. [Dr. Munzing 
also noted that Respondent failed to properly monitor medication 
compliance, and conducted no urine drug screens, as was required by the 
standard of care in California. Tr. 614.]
    Dr. Munzing noted the Respondent's failure to resolve red flags, 
including K.S.'s diagnosis of opiate dependency with refusal to detox, 
the dangerous combinations of medications, and high dosages of 
controlled medications. Tr. 615-18, 620; GX 14 at 39, 40, 41. The 
refusal to detox is a major red flag for opioid use disorder and for 
diversion. However, the Respondent did not take any necessary action, 
such as CURES monitoring, UDS, counseling, or titration. Rather, he 
simply prescribed the same levels of medications she was on, PRN. Tr. 
615-17. The Respondent's course of action was outside the California 
standard of care.
    [Dr. Munzing, summarizing his opinions based on his review of the 
entire file for K.S., testified that Respondent never took a proper 
medical or mental health history, never conducted a sufficient physical 
or mental health examination for K.S.'s relevant diagnoses, never made 
an appropriately supported diagnosis, never recorded K.S.'s pain and 
functionality level, never documented an appropriate treatment plan 
with goals or objectives, never appropriately documented discussion of 
the risks of the prescribed controlled substances with K.S., never 
appropriately monitored K.S. for medication compliance and failed to 
appropriately respond to red flags of diversion. Tr. 617-20. 
Accordingly, Dr. Munzing opined that each of the relevant prescriptions 
Respondent issued to K.S. were issued without a legitimate medical 
purpose, outside the usual course of professional practice and beneath 
the standard of care in California. Tr. 620.
    In summarizing the entire body of evidence he reviewed in this 
matter, Dr. Munzing opined that each of the controlled substance 
prescriptions at issue in this matter were issued ``outside the 
standard of care'' and that Respondent's prescribing of high dosages of 
these controlled substances ``absolutely'' constituted clear excessive 
prescribing. Tr. 621.]

Respondent's Case-in-Chief

    The Respondent presented his case-in-chief through the testimony of 
one witness, the Respondent, Fares Rabadi, M.D.

Fares Rabadi, M.D.

    Dr. Rabadi attended medical school in the former Soviet Union. Tr. 
626. He underwent a three-year residency training in internal medicine 
at State University of New York School of Medicine and Biomedical 
Science in Buffalo, New York. Tr. 627. According to Respondent, he is 
currently licensed to practice medicine in New York (inactive), 
California, and Indiana. Tr. 627. He has been licensed in California 
since September 25, 1998. His first two years practicing in California 
were spent working at another medical group. For the past twenty-years 
he has had his own practice. Tr. 628. He is a member of the American 
Medical Association (AMA), the American College of Physicians, a Master 
of the College of Physicians, the American Society of Internal 
Medicine, the Los Angeles Medical Association and Arab American Medical 
Association. Tr. 628. He is affiliated with the U.S.C. Keck School of 
Medicine, and is on the volunteer faculty with the UCLA's David Geffen 
School of Medicine. He teaches family

[[Page 30576]]

medicine residents at the Northridge Hospital. Tr. 628-29.
    Dr. Rabadi was familiar with the federal regulations, the 
California Health and Safety Code, and the California Business and 
Professional Code cited in the Order to Show Cause. Tr. 630. Dr. Rabadi 
was familiar with the Government Exhibits 1-19 (records relating to the 
prescribing to the charged patients), and 20 (The [California] Guide to 
the Laws Governing the Practice of Medicine by Physicians and 
Surgeons). Tr. 630. He was specifically familiar with pages 59-60 
relating to pain management. Tr. 630; GX 20. He was also familiar with 
the Guidelines for Prescribing Controlled Substances. Tr. 630; GX 21.
    In his medical career Dr. Rabadi has treated thousands of patients, 
including hundreds of pain patients. At the time of the issuance of the 
Order to Show Cause, Dr. Rabadi had 300-400 patients of which 175-200 
were pain management patients. Tr. 631, 792. In both 2017 and 2018, he 
estimated he treated 400 to 500 patients. Tr. 803. In 2019, he 
estimated he saw 400 patients, and less than 200 in 2020.\9\ Tr. 804.
---------------------------------------------------------------------------

    \9\ There was some confusion in the transcript as to the total 
number of patients in 2019. The Respondent estimated 400 total 
patients for 2019, but later agreed it was approximately 200 total 
patients in 2019. Tr. 804. [Respondent also testified at the hearing 
that ``I have close to 550-600 patients'' suggesting that was his 
total number of patients at the time of the hearing in September 
2020. Tr. 792. He testified that he had 175-200 patients who were 
specifically pain patients up until the time of the OSC which was 
dated March 2020. I note that the exact number of patients that 
Respondent was treating at any given time has little relevance to my 
decision in this matter, other than as it relates to his ability to 
accurately recall the undocumented details of each medical visit to 
which he testified.]
---------------------------------------------------------------------------

    Dr. Rabadi described his protocol upon a patient's first visit to 
his clinic prior to the issuance of a prescription. Tr. 631. The 
patient initially fills out paperwork. His office verifies insurance 
coverage. The patient is weighed and then sent to an examination room. 
Dr. Rabadi enters the room, greets the patient and sits on a stool ``so 
[his] eyes are with the same level as the patient's eyes.'' \*O\ Tr. 
632. Dr. Rabadi determines how the patient was referred to him. Dr. 
Rabadi then takes the patient's history, which begins with the 
patient's main complaint. Dr. Rabadi disagreed with Dr. Munzing's 
estimate that a diagnosis is 85% based on the patient's history. Dr. 
Rabadi believed it was upwards of 95% based on history. Tr. 635-36. The 
Respondent conceded history is critical to understanding the patient's 
condition and how to treat the patient. Tr. 804. He inquires about 
family history and their medical issues. Dr. Rabadi then inquires 
regarding social history, surgeries and present pain. He inquires into 
habits, such as smoking, and past and present use of illegal drugs. He 
then probes any allergies, including allergies to medications. If a 
patient has no allergies, he reports NKDA. Tr. 635. Following history, 
Dr. Rabadi testified he ``starts going in depth about the main 
complaint,'' with an eye toward isolating the ultimate medical source 
of the malady, and whether the symptoms are resolved with medication. 
Tr. 635-37. Regarding complaints of ``back pain,'' for example, Dr. 
Rabadi testified that he will review previous diagnoses, probe the 
source and triggers for the pain, explore any nerve restrictions, and 
discuss the success of different past treatment methods. Tr. 638-40. If 
pain medication management was the only treatment that alleviated the 
pain, Dr. Rabadi would explore the history of that treatment and its 
efficacy. [Respondent testified that ``after [he] complete[s] the 
history in general, and organ-specific where the complaint is, then [he 
does the] physical examination.'' Tr. 641.]
---------------------------------------------------------------------------

    \*O\ Modified for clarity.
---------------------------------------------------------------------------

    Dr. Rabadi testified that the physical exam he performs for all 
patients starts with the head. He examines the skull. He explores 
headaches, noted in the records as, ``HEENT.'' Tr. 641. He then checks 
the eyes, the ears, and the mouth. Tr. 642. He moves down to the neck, 
checking for issues with the veins of the neck. He then checks the 
efficiency of the heart's pumping and its rhythm. Next, he checks the 
lungs. Moving down to the abdominal cavity, he palpates the liver and 
spleen for abnormal size. Tr. 643. He then checks the remaining organs 
of the abdomen and the bowel for irregularities. Tr. 643. He then 
checks the extremities for circulation issues, often noting in the 
records, ``No ECC'' (edema, clubbing or cyanosis). He then checks for 
skin issues. Finally, he performs a neurological examination, including 
a mini mental-state exam and their orientation as to time and space. 
Tr. 643-45. He checks their reflexes, their cranial nerves. Tr. 645. He 
decides if further radiologic testing is necessary. Tr. 651-52. For men 
aged 17-35, he offers a testicular exam to check for cancer. For men 
over 50, he offers a rectal exam to determine indications of prostate 
and colorectal cancer. The complete exam takes from 30-40 minutes. 
Then, Dr. Rabadi formulates his diagnosis, [though he noted that ``the 
patient many times comes with a diagnosis already.''] \*P\ Tr. 647. He 
then establishes a treatment plan. Tr. 649. He discusses the treatment 
plan with the patient and obtains informed consent. Tr. 658. For 
patients experiencing pain, he explains the mechanism of pain, the 
modalities of pain and the type of pain; chronic pain, acute pain, 
malignant pain, post-traumatic pain, rheumatological pain, psychogenic 
pain, and neuropathic pain.\10\ Tr. 668. For patients receiving pain 
medication prescriptions, Dr. Rabadi explains the medications, their 
side effects, including addiction, overdose and death, and cautions 
patients not to operate machinery or use heavy equipment. Tr. 668-70. 
[When asked whether he had ever prescribed a controlled substance for a 
patient without having this discussion about the dangers, he responded, 
``Absolutely not. Absolutely not. Absolutely not.'' Tr. 669.] Dr. 
Rabadi assures his patients that if they take the medication as 
prescribed, they will not overdose. Tr. 670.\11\ He typically sees his 
pain patients monthly. Tr. 672.
---------------------------------------------------------------------------

    \*P\ At this point in his testimony, Respondent stated, ``[T]he 
Government seized more than 223 charts . . . they returned more than 
200. . . . And now, they are focusing and fixating on these seven 
charts. So, they're just looking at the charts and some notes and 
immediately demonizing an astute clinician who's been in the medical 
field for 41 years without a blemish to my reputation and career. 
And now, I'm just portrayed as I'm just feeding the addicts; I'm 
just distributing his medications.'' Tr. 648-49. I note that for the 
purposes of this Decision, I presume that all prescriptions issued 
by Respondent that are not at issue in this cases were legitimate.
    \10\ Dr. Rabadi contrasted these classifications with those he 
indicated were described by Dr. Munzing, mild, moderate and severe. 
Tr. 667-68.
    \11\ As I understand Dr. Rabadi's testimony, Dr. Rabadi noted 
that an unnamed study found that dosages 5-6 times higher than that 
recommended by the FDA were safe. This highly specific evidence was 
not noticed prehearing, was not reasonably anticipated by the 
Government, and will not be considered.
---------------------------------------------------------------------------

    For return visits, Dr. Rabadi is focused on the specific reason for 
their visit. Tr. 673. This explains why Dr. Munzing's noted diagnoses 
would appear and disappear from month to month. Tr. 673. Dr. Rabadi 
does not make note each month of long-term chronic conditions. Tr. 673. 
If a patient has new symptoms, Dr. Rabadi will focus on these new 
symptoms and tailor his examination to these symptoms, although at 
least two organ systems are always examined. Tr. 674. At least every 
three months blood pressure is checked. Tr. 675. Dr. Rabadi explained 
that much depends on the physician's judgment. Guidelines are 
essentially recommendations. Following the guidelines does not make the 
Respondent a good doctor. The most important thing is to perform with 
knowledge, with care and in good faith, placing the interest of the 
patient as the Respondent's top priority. Tr. 676.

[[Page 30577]]

    If patients' symptoms subsided and they did not finish their 
medication, Dr. Rabadi would not prescribe more medication. He would 
wait until the medication was finished. This explains why prescriptions 
would sometimes stop and restart from month to month. Tr. 673.
    For patients on pain medication and desiring to continue on pain 
medication, he discusses the options of detox and referral to a pain 
specialist. Tr. 650. All of his patients on pain medications are 
required to sign a ``Controlled Substance Agreement.'' Tr. 658. Dr. 
Rabadi also verbally tells patients that they cannot obtain pain 
medication from different physicians, and they cannot go to different 
pharmacies for refills. Tr. 660. If a patient overdoses, or is arrested 
selling medications, he is banned from further treatment. Tr. 660. Dr. 
Rabadi has little sympathy for reports of lost or stolen medication. 
Tr. 661.
    In the United States, the patient ``is in the driver's seat.'' The 
patient's wishes are granted unless they are asking for something 
illegal or abnormal. Treatment cannot be forced on them. Tr. 650. When 
a patient reports that he has received extensive radiologic testing and 
has exhausted medical treatment and surgeries for his injury and wishes 
to remain on pain medications, the only option is to prescribe those 
medications or to drop the patient, which Dr. Rabadi did not view as an 
ethical option.*\Q\ Tr. 651. No one deserves to be in pain. Tr. 664-65, 
670. If chronic pain patients were dropped from the practice, they may 
turn to buying illegal drugs off the street. Tr. 663. Dr. Rabadi was 
realistic as to most of his pain patients. Some had been on pain 
medications for 10, 15 and 20 years and were chemically dependent on 
them. Tr. 662. The goal was not to make them pain free, which would be 
impossible. It was to minimize the pain, and maximize their 
functionality without making them a slave to the medications. Tr. 662, 
664. For acute pain, Dr. Rabadi typically restricted pain medication to 
one week. Tr. 662.
---------------------------------------------------------------------------

    *\Q\ Respondent testified, ``[i]f the patient tells me, `Look, 
I've already been with pain specialists; I've already seen a couple 
of specialists; I already had three-four MRIs; I already had 
surgery; I'm on this medication for years, and it's working for me,' 
then it comes down to one of two options. Either I tell him I will 
fill his prescription or I kick him out of my office. And I don't 
think it is ethical to do that latter approach.'' Tr. 651.
---------------------------------------------------------------------------

    Dr. Rabadi noted that almost all of his patients work full time in 
the motion picture industry doing hard labor and suffer serious and 
sometimes recurring injuries. Tr. 647, 663. They have had long term 
injuries with surgeries, and have been on pain medication for a long 
period of time prior to coming to see him, and are still able to 
function. Tr. 647-48, 663.
    Regarding the use of pain scales in diagnosing, Dr. Rabadi noted 
their limitations--it is purely subjective to each patient. Tr. 658-59. 
Regarding the high doses of medications he prescribed, Dr. Rabadi 
agreed with Dr. Munzing that starting patients on such high doses was 
dangerous. Tr. 640. However, if the patients were acclimated to such 
high doses, prescribing lower doses would be ineffectual and 
potentially dangerous. Tr. 656-58. If Dr. Rabadi was just starting 
treatment for ADD, for example, he would start the patient on .25 mg of 
Xanax per day. Tr. 657.

Patient S.B.

    Patient S.B. remained a patient of Dr. Rabadi's. Tr. 708-09. She 
was prescribed hydrocodone, Xanax and Adderall. Tr. 709. Dr. Rabadi 
believed his prescription practice concerning S.B. was within the 
California standard of care. Tr. 709. Dr. Rabadi began his treatment of 
S.B. on August 3, 2016. Tr. 718. She presented as a 29 year-old female 
to establish care for the treatment of ongoing conditions of GAD, 
fibromyalgia, and ADD. Tr. 719. As per Dr. Rabadi's policy, as detailed 
in his earlier testimony, he took a complete history.*\R\ Tr. 719-20. 
He performed a complete physical examination [``head to toe including 
every organ and system,''] reviewed her existing diagnoses of GAD and 
ADD, and her medication history in general and specifically for those 
diagnoses. Tr. 720, 722-24. He obtained her pain level with and without 
medication. Without medication her subjective pain level was eight. 
With medication, it was one to two, which permitted her to function and 
perform daily activities. Tr. 721. The Respondent conceded that the 
detailed findings of the complete physical exam are not reflected in 
his chart, but noted he was a clinician with 41-years of experience, 
and not a medical student. Tr. 810. Tr. 810. [He testified that he 
inquired regarding any behavioral and psychological issued S.B. might 
have. Tr. 722.] Dr. Rabadi noted that patients with ADD are six times 
more likely to have other psychiatric conditions as people without ADD. 
Tr. 722. Ultimately, Dr. Rabadi concurred with the previous physician's 
diagnoses of ADD, GAD, and fibromyalgia. Tr. 724, 728. To obtain 
informed consent to prescribe controlled substances to S.B., the 
Respondent executed the ``pain management contract.'' Tr. 728-29. The 
patient reads it and signs it. The Respondent then goes over the 
contract in detail with the patient. The Respondent then explains that 
the medications are meant to help the patient, not to cause side 
effects or addiction, although they tend to cause chemical dependence. 
Tr. 729. The Respondent then goes over all the alternative treatments, 
but in the end, it is the patient's decision as to the treatment she 
will receive. Tr. 729. If the Respondent objected to every patient's 
choice of treatment, there would no medical care. If a patient says she 
is on medication and it permits her to function, the Respondent will 
continue that treatment. Tr. 729-30. S.B. indicated she had been 
through several alternate treatments, including, occupational therapy, 
physical therapy, hydrotherapy, yoga and meditation. Tr. 731, 805.
---------------------------------------------------------------------------

    *\R\ Respondent testified both generally and specifically to 
S.B. that he ``take[s] personally a very lengthy history. [He] 
spend[s] close to 60 minutes in the first visit the patient comes.'' 
Tr. 719, 721.
---------------------------------------------------------------------------

    The Respondent conceded the list of prior therapies was not in his 
progress notes. Tr. 805-06, 808. The Respondent explained its absence 
as maybe he ``did not feel it was crucial to be documented,'' as he 
memorizes what the patient tells him.*\S\ Tr. 806. Respondent testified 
that including references to prior, concluded treatment was irrelevant 
as the prior treatment was concluded and the patient had moved on to 
the new treatment. Tr. 807-08. The Respondent testified to S.B.'s prior 
treatment from memory. Tr. 808. The Respondent explained that, as he 
still maintained handwritten records and saw up to 20 patients a day, 
with new patients taking an hour and returning patients taking up to 20 
minutes each, he did not have the luxury of documenting in detail. Tr. 
807, 849. So, the basic information is reflected in his written notes, 
while the rest he remembers; ``I rely on my photographic memory.'' Tr. 
808-09. The

[[Page 30578]]

Respondent conceded that ``maybe'' it was ``inappropriate'' of him not 
to more thoroughly detail this information in the charts. Tr. 809. But 
with handwritten charts he was only able to include the ``main ideas.'' 
His notes are simply to remind him of the matters. Tr. 810-11. He keeps 
his notes as brief as possible to remind him in the future. Tr. 815.
---------------------------------------------------------------------------

    *\S\ Respondent testified that, ``the record is probably missing 
these things, because maybe at the time of the documentation I did 
not feel that was crucial to be documented. As soon as the patient 
disclosed that to me, I memorize it. I remember it. You've seen how 
several years later I still remember it. . . . I did not feel I have 
to clutter my charts with, you know, this information.'' Tr. 806-07. 
Respondent further testified that he does not have electronic 
medical records, he is ``still writing . . . And when I see 15, 20 
patients a day . . . There [are] only 24 hours a day. I don't have 
the luxury to write ten pages on each patient. . . . [W]hat's 
pertinent, what's your diagnosis, what's your main exam, and what's 
your treatment is reflected there. The rest I remember. I don't need 
to write it.'' Tr. 807-08.
---------------------------------------------------------------------------

    Respondent testified that S.B. further reported that she had been 
on the same dosage of medications for several years to good effect. Tr. 
731-32. [Respondent testified that ``medically it is very inappropriate 
when a patient is stable at [a] certain dose, to start cutting the dose 
because [the] patient will regress'' and either] suffer withdrawal 
symptoms or have severe pain.*\T\ Tr. 732. Prior to each prescription, 
the Respondent discussed side effects, and changes in status. Tr. 733.
---------------------------------------------------------------------------

    *\T\ Modified for clarity.
---------------------------------------------------------------------------

    The Government sought to test the Respondent's ``photographic 
memory'' by asking to confirm that, consistent with his direct 
testimony, he only treated S.B. with hydrocodone, Xanax and Adderall. 
Tr. 810-13. The Respondent confirmed his direct testimony. Tr. 812. The 
Government reminded the Respondent that he prescribed Soma as well, 
[but Respondent testified that he did not mention it on direct because 
it ``was not [an] ongoing prescription. Maybe the patient got it once 
or twice over the course of the years.''] Tr. 813.
    Although the Respondent testified he developed a treatment plan for 
each of his patients, the Government pointed out, and the Respondent 
agreed, that S.B.'s treatment plan and objectives were not documented 
in her chart. Tr. 813-14.
    Although the Respondent testified he did not introduce any of his 
subject patients to controlled substances, the chart reflects he did 
prescribe Soma to S.B. for the first time. Tr. 816-17; GX 1 at 61, 62. 
The Respondent remembered during cross-examination that, although not 
in the chart, S.B. told him she had been on Soma previously. Tr. 817-
19.

Patient J.M.\12\
---------------------------------------------------------------------------

    \12\ In transcript pages 734-43, Patient J.M. is discussed. 
However, due to some confusion with patient initials, the Respondent 
described his treatment of J.M. as M.B. within the transcript. Tr. 
774. [All of the questions and responses for pages 734-43 referred 
to this patient as ``M.B.''; however the factual information that 
was being discussed was actually applicable to ``J.M.'' The error 
was not discovered until Respondent was questioned about the patient 
whose initials were actually M.B. The parties entered ``a 
stipulation that Dr. Rabadi's [prior] testimony as to M.B., the 
second patient discussed, is actually applied or attributed to 
Patient J.M.'' Tr. 774-75. This exchange did not fill me with 
confidence that Respondent's testimony reflected his true 
recollection of the specific actions he took with regard to the 
specific patient being discussed. Rather, Respondent seemed to 
testify to the policies and procedures he followed in the regular 
course and assumed that those policies and procedures were followed 
with regard to all the named patients.]
---------------------------------------------------------------------------

    J.M. has been a patient for thirteen years. Tr. 734. The Respondent 
has prescribed him Xanax, Soma and hydrocodone. The Respondent believed 
his treatment of J.M. was within the California standard of care. J.M. 
first presented on May 14, 2007, with chronic pain syndrome, which 
sometimes manifests as back pain, and neck pain, and GAD. Tr. 735; GX 
11 at 104. The Respondent took a history. J.M. had been involved in a 
motor vehicle accident injuring his back, neck and lumbar spine. 
Additionally, he suffered from GAD and hypertension. Tr. 736. The motor 
vehicle accident as the source of the injury was not documented. Tr. 
853. J.M. had seen an orthopedic surgeon, although it was not 
documented in the chart. Tr. 853. Without medication, J.M. reported 
severe pain of 10 or 11 of 10. With medication, he reported pain levels 
of three of ten, which permitted him to function and to work full time; 
the pain levels were not documented in the chart. Tr. 736, 854-55. J.M. 
reported prior treatments and medication. He had received physical 
therapy, occupational therapy, hypnosis and acupuncture to no avail 
prior to turning to chronic pain management, although these previous 
therapies were not documented in the chart. Tr. 737, 854. His present 
medication protocol delivered the best results with the least side 
effects. Tr. 737. The Respondent probed his psychological history, 
which included an all-consuming fear.
    The Respondent performed a comprehensive physical exam ``head to 
toe.'' Tr. 739. To obtain informed consent to prescribe J.M. controlled 
substances, the Respondent went over the pain management contract, 
which J.M. also read and signed. The Respondent cautioned J.M. about 
diversion and red flags of doctor shopping and pharmacy hopping, which 
would result in discharge. Tr. 739-40. The Respondent noted that J.M. 
is a very well-respected man. He's very well-known in the community. 
Tr. 740.\13\ The Respondent then discussed the beneficial aspects of 
the pain medication and potential negative effects if abused. 
Respondent testified that J.M. never gave any indication he represented 
a risk of diversion. Tr. 741. Prior to seeing the Respondent, J.M. was 
on a higher MME of opioids. He was able to reduce the dosages to the 
level he was on when he first saw the Respondent. He remains on that 
dosage. Again, he is able to function and work full-time on this 
dosage. Tr. 742. The Respondent noted that J.M. would sometimes try to 
avoid taking his medication, even if he suffered pain, as explanation 
for the breaks in prescribing. Tr. 743.
---------------------------------------------------------------------------

    \13\ J.M.'s prestigious background will not be considered. It is 
an unnoticed matter that the government would have no way of 
checking or countering. [It is also completely irrelevant to my 
decision in this case.]
---------------------------------------------------------------------------

    The Respondent denied ever using a different first name for J.M., 
or using a different birth date for him [and attributed any mistake to 
the pharmacy.] Tr. 778-82.

Patient B.C.

    Patient B.C. has been a patient of the Respondent since March 27, 
2014. Tr. 750-51. Patient B.C. has been prescribed hydrocodone, Xanax 
and Adderall. Tr. 749. The Respondent obtained a complete history, a 
complete physical exam and then probed the complaint that brought him 
to the Respondent, which was right shoulder and chronic back pain. Tr. 
751. Without medication, B.C. reported pain at seven or eight, and with 
medication at one or two. Tr. 752. As far as his medication history, 
B.C. had been on pain medication for years following a neurosurgical 
procedure to treat a herniated disc with radiculopathy.\14\ Tr. 752. To 
obtain informed consent, the Respondent discussed the pain management 
contract, which B.C. read and signed. Tr. 752-53. The Respondent then 
discussed side effects of the medication [including ``addiction, 
overdose, and death.'' Tr. 753.] B.C. is a married man with three 
children. He works full time. He gave the Respondent no indication he 
was a risk for diversion. Tr. 753.
---------------------------------------------------------------------------

    \14\ The Government objected to B.C.'s prior treatment history, 
which was not noticed in the RPHS. I ruled it was reasonably 
anticipated. The Respondent cited to specific treatment from a prior 
physician. The contested evidence is reflected in GX 5 at 14, so the 
Government was certainly not surprised by the evidence.
---------------------------------------------------------------------------

    Regarding prior alternate treatment, B.C. reported that he has 
tried surgery, physical therapy and acupuncture, but that only pain 
medication therapy alleviates his pain to the extent he can function. 
Tr. 754. At each visit, the Respondent reviewed B.C.'s progress and 
believed B.C.'s condition warranted the medication he was prescribed. 
Tr. 754, 757. Although the Respondent remembered discussing B.C.'s pain 
levels on March 27, 2014, and that it was one or two on medication, he 
conceded it was not documented in the

[[Page 30579]]

chart. Tr. 832-34; GX 5 at 48. Although the Respondent remembered B.C. 
reporting he had a herniated disc, this report was not documented in 
the chart. Tr. 836. Neither were B.C.'s reported prior surgery, 
physical therapy, acupuncture, or occupational therapy documented. Tr. 
837.

Patient J.C.

    Patient J.C. presented on May 18, 2009, with chronic back pain, 
ulcerative colitis and GAD. Tr. 759-60, 761-62. He was prescribed 
hydrocodone, and Xanax, sometimes substituted with Valium. Tr. 759. The 
Government pointed out to the Respondent that there were visits during 
which several other controlled substances were prescribed. Tr. 842-46; 
GX 7 at 181, 214, 215.
    He had suffered multiple injuries, and had been immobile for some 
time. However, the Respondent did not document the injuries or the 
immobility in the chart, nor did the file contain any prior medical 
records.\15\ Tr. 839, 842; GX 7 at 216. He had undergone physical 
therapy, occupational therapy, and finally pain management, which 
permitted him to resume working full-time. Tr. 760. These alternate 
treatments and therapies and prior surgeries were not documented within 
the chart. Tr. 840. The Respondent could not remember if J.C. mentioned 
his prior surgeries at the first or second visit.*\U\ Tr. 840. The 
Respondent performed a full exam on J.C. Tr. 760-61. His GAD resulted 
from his ulcerative colitis. Tr. 762.
---------------------------------------------------------------------------

    \15\ The Respondent again explained the difficulty in obtaining 
prior medical records. Tr. 842.
    *\U\ Respondent testified, ``[w]hether he mentioned the surgery 
the very first visit, that I cannot tell you yes or no at this point 
because it's not in my notes. So I'm just second guessing myself.'' 
Tr. 841.
---------------------------------------------------------------------------

    The Respondent obtained informed consent to prescribe controlled 
substances by explaining the pain contract; afterwards, J.C. read it 
and signed it. Tr. 763. The Respondent explained the dangers of 
overdose. Tr. 764. The Respondent had no concerns about J.C. diverting 
his medication. Tr. 764-65. On the basis of J.C.'s considerable 
injuries and condition, the Respondent felt J.C.'s medication protocol 
was fully justified. Tr. 765. The Respondent denied ever intentionally 
misspelling J.C.'s first name.*\V\ Tr. 765-66. Although the Respondent 
remembered J.C. reporting that he had seen two previous doctors, 
including a pain physician, that report was not reflected in the chart. 
Tr. 841-42. Although the Respondent remembered performing a complete 
mental health evaluation on J.C., it is not documented in the chart. 
Tr. 842.
---------------------------------------------------------------------------

    *\V\ There was no allegation that Respondent misspelled J.C.'s 
name, but the OSC did allege that Respondent ``used a variant 
spelling of Patient J.M.'s first name.'' OSC, at 13. Accordingly, 
Respondent's testimony that he never intentionally misspelled J.C.'s 
first name is not relevant to this hearing other than it caused me 
to again question whether Respondent's testimony reflected his true 
recollection of the specific actions he took with regard to the 
specific patient being discussed. See supra n.12.
---------------------------------------------------------------------------

Patient D.D.

    Patient D.D. first presented on July 9, 2008, with GAD and severe 
back pain, although the source of the back injury was not documented. 
Tr. 767-68, 850; GX 9 at 74. Over the course of treatment, the 
Respondent prescribed hydrocodone, Xanax and Soma. Tr. 850. The 
Respondent added that he probably prescribed Valium, as well, 
explaining he was remembering from 13 years ago. Tr. 850. The 
Respondent remembered D.D. was prescribed Valium, hydrocodone and Soma 
the first visit. Tr. 851-52. The Respondent believes his treatment was 
within the standard of care in California. The Respondent took a 
complete medical history, family history, personal history and 
medication history. Tr. 768. The family history was not documented in 
the chart. Tr. 848. The Respondent explained that the family history 
was not documented because it was non-contributory to his assessment. 
Tr. 848. There were no heart conditions in his family, etc. Tr. 849. 
The Respondent did document that D.D. was married, which he deemed 
contributory. Tr. 849. D.D. had a dirt bike accident, which shattered 
his shoulder and fractured several ribs, although the accident as the 
source of the injury was not documented.*\W\ Tr. 850. He underwent 
physical therapy and occupational therapy after treatment by an 
orthopedic surgeon, although neither was documented within the chart. 
Tr. 769, 771, 850-51. It was several years before he reached the 
medication regimen he was on when he first reported to the Respondent. 
The Respondent performed a full physical exam. He established informed 
consent with the pain contract and discussion of side effects and 
overdose, as with all his patients. Tr. 770. He verbally cautioned D.D. 
regarding diversion and other red flags. Again, D.D. gave no indication 
of diversion. Tr. 771. Respondent testified that alternative treatments 
were discussed. Tr. 771.
---------------------------------------------------------------------------

    *\W\ Respondent testified that, ``whether it is specifically 
dirt bike as opposed to car accident, as opposed to falling off the 
second story, this has become, there is a good reason for the back 
pain. That's the whole thing, why I did not mention specifically 
dirt bike injury.'' Tr. 850.
---------------------------------------------------------------------------

Patient M.B.

    Patient M.B. presented on April 19, 2006, with severe back pain, 
left knee pain and history of dyslipidemia. Tr. 782. The Respondent 
obtained a full medical history, medication history, pain level, and 
performed a complete head to toe physical exam. Tr. 783. The Respondent 
discovered M.B. had chronic back pain related to an injury, a 
manageable knee injury, and dyslipidemia. Tr. 784. Although the 
Respondent maintains he obtained a complete medical history as to the 
back pain and chronic knee pain, he concedes it is not detailed in the 
chart. Tr. 820-23. [He testified, ``[maybe . . . I should have 
documented more. I'm not going to say anything to that.'' Tr. 821.] He 
was already on hydrocodone, previously prescribed, when M.B. first saw 
the Respondent.
    The Respondent obtained informed consent in the same manner as 
described for his earlier patients. Tr. 784. He discussed alternative 
forms of treatment with M.B., however M.B. had exhausted those.*\X\ 
M.B. had physical

[[Page 30580]]

therapy, and perhaps acupuncture, but the Respondent could not quite 
remember. Tr. 827. The Respondent conceded he did not document these 
therapies in the chart. Tr. 828. The Respondent monitored M.B. 
throughout his treatment. Tr. 785. The Respondent believed his 
prescribing was justified on the basis of M.B.'s medical conditions, 
level of chronic pain and present level of functioning, working in a 
welding factory lifting heavy things.*\Y\ Tr. 786, 832. The Respondent 
conceded that he did not document M.B.'s degree of pain, but minimized 
the value of the subjective pain scale. Tr. 823-24. The Respondent 
conceded there were no imaging reports in M.B.'s chart, but explained 
that these patients were from the movie business. They were treated by 
a Health Maintenance Organization (HMO) from which it is almost 
impossible to obtain records. Tr. 829.
---------------------------------------------------------------------------

    *\X\ Specifically, when asked whether he considered alternative 
forms of treatment for M.B., Respondent testified: ``I do. We do 
discuss that. However, patient's already been through those. Again, 
the common denominator in my practice is unique thing . . . because 
these patients [have] been there, done that. They had surgeries, 
they had imaging, they had already physical therapy, activation, 
acupuncture, medication. I told you some of them had hypnosis, water 
pool or water therapy. Everything was done. But still . . . for the 
sake of clarity I have to discuss everything. The patient will tell 
me, Doctor, I've done that, I've been there, and this is what works 
for me right now.'' Tr. 785. On cross examination when asked 
specifically whether M.B. told Respondent that he had tried each of 
these forms of alternative treatment, Respondent replied ``[n]ot 
necessarily all of this. I always ask questions, what alternative 
therapy did you discuss.'' Tr. 825. When directed to identify 
specifically which forms of alternative treatment M.B. had tried, 
Respondent testified, ``I don't want to misspeak. I'm not sure if he 
had . . . acupuncture or not. But I know for a fact he had physical 
therapy.'' Tr. 827. I find this testimony illustrative of two 
concerns I have with Respondents testimony. First, it appears that 
Respondent's testimony does not always reflect an independent 
recollection of the undocumented events that occurred between him 
and the specific patients being discussed. Even where Respondent 
seems to be testifying about a specific patient, it morphs into 
testimony about his patients collectively rather than as 
individuals. This sort of collective focus that appears throughout 
Respondent's testimony causes me to question Respondent's 
credibility--specifically whether he remembers the events that 
occurred at each specific visit for each specific patient that he 
discussed in the absence of medical records documenting these 
events. Indeed, Respondent testified that ``[o]ver [his] career, 
[he] worked [with] about 5,000 patients.'' Tr. 792. And at the time 
of the hearing he had ``close to 550-600 patients'' and prior to the 
order to show cause he ``had between 175-200 [pain] patients.'' Id. 
Secondly, I am concerned that Respondent's ``photographic memory'' 
may not be as reliable as he portrays it, particularly where, as 
here, there is no documentation in support of his memory.
    *\Y\ On cross-examination Respondent testified ``the patient is 
in motion picture but he has also something that he does on the side 
that has to do [with] welding iron or something like that as well.'' 
Tr. 832.
---------------------------------------------------------------------------

Patient K.S.

    Patient K.S. presented on June 21, 2007, with chronic back pain. He 
was later diagnosed with ADD. He was prescribed hydrocodone, Soma and 
sometimes Adderall. Tr. 788-89, 861; GX 14 at 110. The Respondent added 
that he may have also prescribed Xanax, but it is difficult to be sure 
with hundreds of patients and treatment dating back fifteen years. Tr. 
859. Even with a ``good memory, sometimes you just miss something.'' 
Tr. 859. Additionally, he noted that many times patients do not 
disclose all of their medications at the initial visit, if they have 
plenty and do not then need them to be refilled. So, he is not always 
aware of all of their medications at the initial visit. Tr. 860-62.
    The Respondent believed his prescribing was within the standard of 
care for California. Tr. 788. The Respondent obtained a full medical 
history, medication history, pain level, and performed a complete head-
to-toe physical exam. Tr. 789. The Respondent discovered K.S. had 
chronic back pain related to a bike accident for which he had been 
treated by several doctors for several years, although the bike 
accident as the source of the injury and treatment by other doctors was 
not documented. Tr. 789, 856-57, 859. Additionally, there were no 
records from prior treatment in the patient's records. Tr. 857. 
Although the Respondent explained that he requested the prior medical 
records, none were provided. The Respondent explained that his request 
for records is simply faxed to the previous physician's office. Tr. 
857-58. Its absence from the file was probably because a staffer forgot 
to file it. Tr. 858. The Respondent did not contest the Government's 
observation that no requests for previous medical records were in any 
of the seven patient files. Tr. 859. K.S. was already on hydrocodone 
when K.S. first saw the Respondent. The Respondent obtained informed 
consent [and disclosed the potential side effects including the risk of 
death] in the same manner as described for his earlier patients.*\Z\ 
Tr. 790. He discussed alternative forms of treatment with K.S. K.S. was 
obtaining physical therapy prior to seeing the Respondent and continued 
physical therapy after beginning treatment with the Respondent. Tr. 
791. The Respondent monitored K.S. throughout his treatment. Tr. 791. 
K.S. presented no indications of diversion. The Respondent has treated 
K.S. for thirteen years during which time K.S. got married and had 
three children. Tr. 790-91.
---------------------------------------------------------------------------

    *\Z\ Specifically, when asked whether he had a conversation with 
this patient involving informed consent, Respondent testified: 
``Yes, I did. And, as usual, he read the entire contract, understood 
it. Indicated that [he] understood, both verbally and signed it. 
Then I . . . explain[ed] the potential side effects of these 
medications that include from my explaining with sedation and 
constipation, all the way to addiction, overdose, and possible 
death. And I indicate always to my patients on the last two, the 
overdose and the death, is on you, because you can cause it 
yourself, or you could use this medication indefinitely and never 
have any problem. . . .'' Tr. 790; see also Tr. 670-71, 753, 770. 
Once again, Respondent begins his testimony purporting to have a 
specific recollection of his 2007 conversation with K.S., but then 
he turns to general language, which more supports a general 
assumption that he had the conversation. See, e.g., Respondent's use 
of ``as usual, he,'' which is ambiguous because, while all of 
Respondent's patients purportedly receive the contract, K.S. is only 
purported to have received it once.
---------------------------------------------------------------------------

    The Respondent noted that, to the best of his knowledge, none of 
his thousands of patients have suffered any harm from his medication 
treatment. Tr. 793. [Respondent testified that a combination of an 
opiate, muscle relaxant, and benzodiazepine, when ``used in the right 
dosages for the right indications, and used as prescribed by a 
knowledgeable M.D., . . . are safe to use in combination therapy.'' Tr. 
797.] The Respondent disagreed with Dr. Munzing's assertion that he 
could perceive of no medical condition justifying the dangerous 
combinations of medications identified herein. Tr. 794-800. The 
Respondent conceded the potential danger of individual pain 
medications, and the potential increase in risk in combination with 
other medications. However, according to him, if patients are 
responsible and take the medications as prescribed for the indications 
intended, these combinations are fairly safe. Tr. 800.\16\
---------------------------------------------------------------------------

    \16\ Although the government objected to this opinion by the 
Respondent, I overruled its objection. A general disagreement by the 
Respondent of the government expert's opinion is certainly 
reasonably anticipated. The Respondent did not cite to any unnoticed 
medical practice guide, medical theories or other basis for his 
contrary opinion. The government was readily able to confront the 
Respondent's opinion. The Respondent's opinions were not considered 
expert opinions.
---------------------------------------------------------------------------

    The Respondent recognized his obligations to follow all federal and 
state rules concerning the practice of medicine, including the 
directives of the California Board of Medicine. Tr. 862. California's 
Compliance with Controlled Substance Laws and Regulations includes a 
provision on records. Tr. 864; GX 20 at 61. According to Respondent, it 
mandates that, the physician and surgeon should keep accurate and 
complete records according to the items above between the medical 
history and physical examination, other evaluations and consultations, 
treatment plan objectives, informed consent, treatments, medications, 
rationale for changes in the treatment plan or medications, agreements 
with the patient, and periodic reviews of the treatment plan. Tr. 864-
65. The provision further requires, ``[a] medical history and physical 
examination must be accomplished . . . this includes an assessment of 
the pain, physical and psychological function.'' Tr. 866; GX 20 at 59. 
The Respondent assured the tribunal that the necessary assessments were 
made, but not fully documented. Tr. 866-67. The Respondent, [while 
again conceding that there was no documentation,] made the same 
assurances for the requirements as to ``Treatment Plan Objectives,'' 
``Informed Consent,'' and ``Periodic Review,'' noting these Guidelines 
were published in 2013.\17\ Tr. 867-72. [As justification for not 
documenting a treatment plan, Respondent testified that he was 
``carrying the same treatment [plan] and no change and the patient is 
stable,'' but that ``[i]f [he] changed the treatment plan'' it would be 
important to document. Tr. 874. Contrary to Respondent's testimony, the 
treatment plan did change when on February 2, 2017, the Respondent 
prescribed Soma to S.B. Tr. 875; GX 1 at 59. By March 1, 2017, Soma had 
been discontinued, yet the chart reflected no rationale for

[[Page 30581]]

that change in medication regimen. Tr. 876-77. As the Respondent varied 
his prescribing between Soma and Xanax, he conceded he did document the 
reason for the variation in medication. Tr. 878-83. The Respondent 
conceded he did not document the rationale for the change in medication 
for J.M. or K.S. as well. Tr. 885. Similarly, the Respondent conceded 
he did not document pain level, function level and quality of life for 
any of the seven charged patients. Tr. 885-87; GX 20 at 61. The 
Respondent reiterated that, to his knowledge, none of his patients 
exhibited red flags or violated the pain agreement. Tr. 888-89.
---------------------------------------------------------------------------

    \17\ See Tr. 950-52. Dr. Munzing testified credibly that the 
2013 version was the 7th edition and the basic requirements have not 
changed over the years.
---------------------------------------------------------------------------

    [Respondent testified somewhat extensively and flippantly regarding 
his thoughts on California law's documentation requirements. ``I am not 
going to just say, okay, write in the chart I told the patient hello, 
they said hello, I said, okay, what did you have for breakfast? I am 
not going to document all that, there is no reason. It is just 
excessive wrecking [sic.] havoc on the documentation. . . . 
[E]verything was addressed, everything was talked about, and every 
exam, every consent, everything was done by the book. I am a 
perfectionist. I am a perfectionist.'' Tr. 871.]

Rebuttal Testimony

Diversion Investigator
    DI identified a CURES Audit Report for the Respondent's 
Registration number. Tr. 893-94; GX 24. The audit report shows each 
time the Respondent accessed CURES to run a query on patients. Tr. 894. 
This particular audit included data from January 1, 2016, through 
January 13, 2020. DI also identified GX 25, which was a CURES Audit 
Report run on the DEA Registration of Dr. B.S., which included the 
patient M.B., a patient common to the Respondent. Tr. 904. Between 
October 10, 2018, and September 11, 2020, Dr. B.S. prescribed Suboxone 
\18\ to M.B. Tr. 909; GX 24, 25, 25B. On March 15, 2019, the Respondent 
accessed CURES and would have observed M.B. was receiving Suboxone from 
Dr. B.S. Tr. 910; GX 24. DI identified GX 26, an additional CURES Audit 
Report for Dr. B.S.2, which spanned from January 2017, to September 
2020, and which shared a common patient with the Respondent, J.M. Tr. 
911-13; GX 26, 26B. Dr. B.S.2 similarly prescribed Suboxone to J.M. 
from January 2017 to August 2020. Tr. 913. The CURES Audit of the 
Respondent demonstrated he accessed the CURES database during the 
period J.M. was prescribed Suboxone by Dr. B.S.2, which would have been 
evident by this review. Tr. 914.
---------------------------------------------------------------------------

    \18\ Buprenorphine.
---------------------------------------------------------------------------

Dr. Munzing
    Dr. Munzing repeatedly gave his opinion regarding the credibility 
of the Respondent's testimony. I find that Dr. Munzing's opinion as to 
the Respondent's credibility is beyond Dr. Munzing's qualified 
expertise. Accordingly, those opinions will not be considered 
herein.\19\
---------------------------------------------------------------------------

    \19\ [Omitted for brevity.]
---------------------------------------------------------------------------

    Dr. Munzing opined on the importance of documentation within 
medical records, including medical history and pain levels. Tr. 917, 
936-38. He noted that documentation was not just for the then treating 
physician. It was important for other physicians, perhaps years later, 
who may treat the patient in an emergency room setting. [Dr. Munzing 
testified that ``[t]rue, and accurate, and thorough documentation is 
vitally important for patient safety. It's also part of the standard of 
care.'' Tr. 917.] He reiterated that the elements identified in the 
Board of Medicine's Guidelines on documentation are part of the 
standard of care. Tr. 917-18; GX 20 at 59, 60, 61. He noted the lapse 
in documentation regarding the history, pain levels, mental health 
exams, and treatment plans the Respondent testified he performed or 
obtained for each patient. Tr. 916, 921-22. [Specifically, Dr. Munzing 
testified that ``practically none of the information that Respondent 
mentioned [during his testimony] was documented.'' Tr. 916.] Dr. 
Munzing observed that the examination described by the Respondent for 
fibromyalgia was medically deficient and inconsistent with the standard 
of care, as it did not include a musculoskeletal exam. Tr. 918-20. Dr. 
Munzing observed that the standard of care applies equally to 
electronic records as to written records. It does not matter whether 
the physician documents electronically or in writing, the standard 
remains the same. Tr. 922.
    Regarding the Respondent's testimony that he would continue 
patients on medication prescribed by previous physicians if they 
reported they were doing well on the medication, Dr. Munzing opined 
that Respondent needed to conduct an ``independent evaluation'' and 
``verify what [the patient is] saying'' *\AA\ to comply with the 
standard of care. Tr. 923-27, 928-29. Dr. Munzing observed that the 
Respondent's warnings regarding the potential for overdose were not 
consistent with the standard of care. Tr. 927. Dr. Munzing believed the 
Respondent's undocumented verbal caution that overdose was a potential 
risk if the patients took the medication other than as directed was 
misleading, because there were risks even if the medication were taken 
as prescribed, and it was beneath the standard of care. Tr. 927, 929-
31.
---------------------------------------------------------------------------

    *\AA\ For example, Dr. Munzing testified that Respondent could 
have checked CURES or urine drug tests to verify what the patients 
were saying or could have asked the patients to bring copies of 
their prior medical records in with them. Tr. 923-24. Dr. Munzing 
testified that it is outside the standard of care in California to 
simply take a patient at their word when they say that they are 
receiving certain controlled substances in certain doses. Tr. 928-
29.
---------------------------------------------------------------------------

    Regarding the Respondent's explanation that he only documented the 
condition of which the patient was complaining, and did not document 
all the medications the patients were already on when coming to his 
clinic, Dr. Munzing opined such practice was inconsistent with the 
standard of care. Tr. 932. Dr. Munzing testified that the documentation 
was not just to remind the treating physician, but to alert any 
physician who may treat the patient. Tr. 931-34. Dr. Munzing also 
criticized the Respondent's handling of situations in which patients 
reported they still had medication remaining from the previous month. 
Rather than simply refraining from prescribing additional medication, 
Dr. Munzing indicated that that situation should trigger a discussion 
with the patient and evaluation whether the existing level of 
medication is appropriate, or whether titration is warranted. Tr. 933-
36. Dr. Munzing deemed the Respondent's prescribing 10 mg a day of 
Xanax to J.M. to treat GAD and undocumented panic attacks as excessive 
and beneath the standard of care. Tr. 938-39. Dr. Munzing deemed the 
Respondent's reluctance to reduce the opioid dosage lest the patient 
suffer pain or withdrawal symptoms misguided. Tr. 941. Titration of 
high opioid dosage of high risk patients or exploration of alternate 
treatment is consistent with the standard of care. Tr. 941. Dr. Munzing 
was critical of the Respondent's handling of J.M. and S.B. after 
discovering they were being prescribed Suboxone by other physicians. 
Tr. 941-48. Suboxone is typically prescribed for opioid use disorder or 
addiction. Tr. 943. It directly violates the Respondent's pain contract 
for these patients, yet the Respondent took no action and continued to 
prescribe opioids. Tr. 947.

[[Page 30582]]

The Facts 20
---------------------------------------------------------------------------

    \20\ [The contents of the original footnote are omitted due to 
my omission of the Joint Stipulations. The parties agreed to Joint 
Stipulations numbered 1-38. See ALJX 3, Govt Prehearing, at 1-14 and 
ALJX 13, Resp Supp. Prehearing, at 1. The RD included many of the 
stipulated facts between the parties, but appears to have 
inadvertently left some out. See RD, at 54-67. I have omitted the 
joint stipulations from this decision in the interest of brevity, 
but I incorporate fully herein by reference Joint Stipulations 1-38. 
Where there is a reference to the Joint Stipulations herein, the 
numbering aligns with the numbering in the Government's Prehearing 
Statement, GX3, at 1-14.]
---------------------------------------------------------------------------

Findings of Fact

    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.
    During the hearing conducted, via video teleconference, from 
September 28, 2020, to September 30, 2020, the Government established 
the following facts through evidence, testimony, or stipulation 
(``Proposed Findings of Fact'' or ``PFF''):

I. Investigatory Background

    1. DI has been employed by DEA as a Diversion Investigator for 
three years. Tr. 33.
    2. DEA began investigating Respondent in April of 2018, after 
receiving a February 2018 report issued by the Department of Health and 
Human Services indicating that Respondent's prescribing habits 
presented a high-risk for overprescribing. Tr. 37-38.
    3. DEA monitored California's prescription drug monitoring program, 
known as CURES, and identified several red flags regarding Respondent's 
prescribing. Tr. 35, 38. CURES reports obtained by DEA were admitted 
into evidence as GX 16, 17, 18, and 19. Tr. 16-18; see also Joint 
Stipulation Nos. 31-34. Among other things, DEA found that; (1) 
Respondent frequently prescribed opioids at their maximum strength, Tr. 
38-39; (2) Respondent frequently prescribed patients a combination of 
an opioid and a benzodiazepine, Tr. 39; (3) Respondent issued 
prescriptions for a combination of an opioid, a benzodiazepine, and 
carisoprodol--a combination that is highly sought after on the illicit 
market, and is known as ``the Holy Trinity,'' Tr. 40; (4) Respondent 
prescribed high doses of controlled substances to patients for long 
periods of time, Tr. 40-41; (5) between November 20, 2015, and November 
21, 2018, Respondent issued approximately 9,000 prescriptions for 
controlled substances, Tr. 39; GX 16; GX 17; GX 18; (6) Over half of 
those 9,000 prescriptions were for hydrocodone, and approximately 96 
percent of these prescriptions were for either hydrocodone, alprazolam, 
or carisoprodol--which together make up the ``Holy Trinity'' cocktail. 
Tr. 39, 42-43; GX 16; GX 17; GX 18.
    4. DEA obtained medical files from Respondent, pursuant to a 
federal search warrant executed at Respondent's medical clinic in 
February of 2019, and pursuant to an administrative subpoena issued to 
Respondent in January of 2020. Tr. 46, 49, 49, 55-56. These included 
medical files for Patients S.B., M.B., B.C., J.C., D.D., J.M., and K.S. 
(admitted as GXs 1, 3, 5, 7, 9, 11, and 14; Tr. 16-18).
    5. DEA also obtained prescriptions for the above-mentioned patients 
(see PFF ] 4) from its search of Respondent's clinic, and from 
pharmacies at which these prescriptions were filled (admitted as GXs 2, 
4, 6, 8, 10, 12, and 15; Tr. 16:15-18:3). DEA also obtained fill 
stickers for certain prescriptions issued to Patient J.M. from one of 
the pharmacies at which Patient J.M. filled prescriptions Respondent 
issued to Patient J.M. (admitted as GX 13; Tr. 16:15-18:3).

II. The Government Expert's Qualifications

    6. Dr. Munzing's curriculum vitae was admitted into evidence as GX 
23; Tr. 89. He is a licensed physician in the State of California, who 
has worked in the field of family medicine for nearly forty years. Tr. 
89.
    7. Dr. Munzing received his medical degree from the University of 
California, Los Angeles, in 1982, and did his residency at Kaiser 
Permanente Medical Center in Los Angeles. Tr. 89. He then began working 
in the family medicine department of Kaiser Permanente Orange County, 
where he has been for the last thirty-five years, twice serving as 
president of the medical staff at the hospital. Tr. 89, 94. He has a 
DEA COR and an active clinical practice, prescribing, inter alia, 
opioids, benzodiazepines, and other controlled substances when 
indicated. Tr. 91-92.
    8. In addition to his clinical practice, Dr. Munzing teaches 
extensively to physicians, serving as the director of the Kaiser 
Permanente Orange County family medicine residency program. Tr. 90. 
Further, he is a full clinical professor at University of California, 
Irvine. Tr. 91. He also sits on the National Accreditation Board for 
Family Medicine Residency, which accredits all of the residency 
programs in the United States of America. Tr. 90-91.
    9. Dr. Munzing has been called upon to provide opinions about the 
prescribing of other medical professionals, and he has been qualified 
as an expert witness in over 30 cases, including in DEA administrative 
hearings. Tr. 93-94.
    10. As a licensed California physician who has been practicing in 
California for nearly 40 years, Dr. Munzing is familiar with the 
standard of care for prescribing controlled substances in California. 
He also has reviewed publications by the Medical Board of California 
that inform his understanding of the standard of care, including the 
``Guide to the Laws Governing the Practice of Medicine by Physicians 
and Surgeons (7th Edition)'' (admitted as GX 20, Tr. 16-18), and the 
``Guidelines for Prescribing Controlled Substances for Pain,'' 
(admitted as GX 21, Tr. 16). In addition, he is familiar with the FDA's 
black box warning regarding the risks of overdose and death posed by 
concurrently taking opioids and benzodiazepines, and the FDA labels for 
benzodiazepines including Klonopin, Valium, and Xanax (admitted as GX 
22, Tr. 16-18). Further, Dr. Munzing reviewed several laws and 
regulations that informed his understanding of the standard of care. 
Tr. 99.
    11. Dr. Munzing was qualified as an expert in California medical 
practice, including, but not limited to, applicable standards of care 
in California for the prescribing of controlled substances within the 
usual course of the professional practice of medicine. Tr. 102.

III. The Standard of Care for Prescribing Controlled Substances in 
California

    12. Dr. Munzing testified that the standard of care in California 
first requires that, before prescribing controlled substances, a 
practitioner perform a sufficient evaluation of the patient, including, 
a medical history and appropriate physical examination. Tr. 103.
    a. In the context of treating a patient with controlled substances 
for pain, the standard of care in the state of California requires the 
following:
    i. Medical history: The practitioner must obtain detailed 
information about the pain, including where the pain is, how long a 
patient has had it, how severe the pain is, the impact of the pain on 
the patient's functionality and activities of daily living, and any 
previous diagnoses and treatments the patient has received for the 
pain. The practitioner must also seek to obtain any relevant prior 
medical records and imaging. Tr. 114-115.

[[Page 30583]]

    ii. Physical examination: The practitioner must look at the area of 
pain unclothed for any swelling, redness, or mass. Tr. 116-17. The 
practitioner must palpate the affected area and identify areas of 
particular tenderness or pain. Tr. 117-18. The practitioner also is 
required to test a patient's range of motion, as well as the patient's 
neurological conditions via targeted tests for the area affected by 
pain (e.g., tendon reflexes, and strength tests for the affected area). 
Tr. 118-19.
    b. In the context of treating a patient with controlled substances 
for mental health conditions, the standard of care in the state of 
California requires the following:
    i. Medical history: The practitioner must inquire into the 
patient's condition, including symptoms the patient is experiencing, 
when the patient experiences symptoms, how those symptoms impact the 
patient's functionality and activities of daily living, when the 
condition began, and if there is a family history of mental health 
issues. The practitioner must also seek to obtain any relevant prior 
medical records. Tr. 136-38.
    ii. Physical examination: The practitioner must conduct a limited 
and focused general examination, including heart, lungs, and vital 
signs, [to rule out other possible medical diagnosis.] Tr. 138-39.
    13. As part of the medical history, the practitioner must inquire 
into the patient's history of, and/or current use or abuse of, tobacco, 
drugs, or alcohol, as well as into any family history of use or abuse 
of tobacco, drugs, or alcohol. Tr. 120-21, 142.
    14. Based on the history and physical examination, the standard of 
care requires the practitioner to assign a diagnosis to the patient. 
Tr. 103. An appropriate history and physical examination are crucial to 
arriving at an appropriate diagnosis. Tr. 121-22, 141. Without an 
appropriate diagnosis, a practitioner cannot establish a legitimate 
medical purpose to prescribe. Tr. 124, 141. [The standard of care 
requires the diagnosis to be documented in the record. Tr. 122.]
    15. Next, the standard of care requires the practitioner to develop 
a customized and documented treatment plan for the patient with goals 
and objectives. Tr. 109-110. The practitioner must relay that plan to 
the patient, inform the patient of the risks *\BB\ and benefits of 
treatment with controlled substances, as well as potential alternative 
treatments, and obtain the patient's informed consent for the 
treatment. Tr. 103-04, 124-25. When prescribing high dosages of 
controlled substances, this discussion of risks must include risks of 
addiction, overdose, and death. Tr. 126-27. ``All of [this] needs to be 
documented'' in the medical record. Tr. 135.
---------------------------------------------------------------------------

    *\BB\ The practitioner must determine the risk posed to a 
patient by controlled substances due to the patient's overall health 
history--as well as the potential for substance abuse or addiction. 
Tr. 103, 109. This text, which appeared in the RD originally, has 
been relocated for clarity.
---------------------------------------------------------------------------

    a. In the context of treating a patient with controlled substances 
for pain, the standard of care in the state of California requires that 
a treatment plan contain goals and objectives for pain management, such 
as maximizing benefit to function and minimizing pain, while also 
minimizing the risk to the patient from the controlled substances 
prescribed. Tr. 131.
    b. In the context of treating a patient with controlled substances 
for mental health conditions, the standard of care in the State of 
California still requires that the treatment plan contain goals and 
objectives for the patient. Tr. 143.
    c. With respect to risks of medications, Dr. Munzing explained that 
practitioner should only co-prescribe opioids and benzodiazepines when 
``absolutely necessary,'' and should do so for ``[n]o longer than 
absolutely necessary and typically in as low doses as possible to . . . 
decrease the risk.'' Tr. 154-55.
    16. As treatment progresses, the standard of care requires a 
physician to monitor the patient. Tr. 104, 132. A practitioner must 
periodically update the patient's medical history, conduct further 
physical examinations, and obtain updated information regarding the 
etiology of a patient's state of health. Tr. 106-08. The practitioner 
must periodically review the course of treatment, ascertain how the 
patient is responding thereto, determine if continued treatment is 
appropriate or if the treatment plan needs to be modified, and document 
the rationale for any modifications. Tr. 108-09, 206; GX 20 at 61. The 
practitioner must also periodically re-inquire into the patient's use 
or abuse of tobacco, drugs, or alcohol. Tr. 259-60.
    17. The practitioner must also periodically conduct updated 
physical examinations, both brief general examinations to ensure that 
the patient is healthy enough to continue receiving controlled 
substances, as well as focused examinations of the area for which pain 
is being treated to help in determining how the patient is responding 
to treatment. Tr. 111-12.
    18. When prescribing controlled substances, the standard of care in 
California also requires a practitioner to monitor medication 
compliance, including thorough reviews of CURES, Tr. 132, periodic 
urine drug screening, Tr. 133, and/or pill counts. Id. The practitioner 
must address any red flags of abuse or diversion. Tr. 112.
    19. In addition, the standard of care requires that a practitioner 
document all of these above steps in detail. See, e.g., Tr. 104, 109, 
110, 112, 122, 135, 144. Such documentation is critically important as 
it: (1) enables the practitioner to recall important facts about the 
patient's state of health and treatment, Tr. 145, 146; and (2) allows 
other practitioners who may also see the patient to see these facts. 
Tr. 145-146.
    20. Appropriate documentation is a well-known, fundamental 
requirement in the medical community. Tr. 146. [According to Dr. 
Munzing, ``[t]he general mantra in medicine [is] . . . if [it is] not 
documented, it [did not] happen.'' Tr. 148. Thus, it is not credible 
that a practitioner who consistently failed to document these basic 
elements for a patient actually performed them. Tr. 148-50.
    21. The practitioner must also comply with all relevant California 
laws.

IV. Respondent's Improper Prescribing of Controlled Substances

A. Patient S.B.

i. Patient S.B.'s Initial Visit
    22. Between February 2, 2017, and January 30, 2019, Respondent 
issued Patient S.B. the controlled substance prescriptions listed in 
Joint Stipulation No. 10. See ALJ Ex. 3 at 2-3. During this time, 
Respondent diagnosed Patient S.B. with fibromyalgia, GAD, and ADD. GX 1 
at 47-59.
    23. Respondent's initial encounter with Patient S.B. took place on 
August 3, 2016. GX 1 at 62, 66; Tr. 164-65. At that visit, Respondent 
diagnosed Patient S.B. with fibromyalgia, GAD, and ADD. GX 1 at 62; Tr. 
165. Respondent prescribed Patient S.B. hydrocodone for fibromyalgia, 
Xanax for GAD, and Adderall for ADD. GX 1 at 62; Tr. 165. At this 
initial visit, Respondent failed to:
    a. Take an appropriate medical history, GX 1 at 62; Tr. 166-68;
    b. address Patient S.B.'s pain or functionality levels, GX 1 at 62; 
Tr. 171;
    c. conduct an appropriate physical examination, GX 1 at 62; Tr. 
166, 168-71;
    d. establish appropriate diagnoses, and therefore to establish 
legitimate medical purposes for hydrocodone, Xanax, or Adderall, Tr. 
171-72; or
    e. establish and document a treatment plan with goals and 
objectives, GX 1 at 62; Tr. 172-73.

[[Page 30584]]

ii. Continued Controlled Substance Prescribing Violations
    24. Throughout the entire course of treatment, Respondent never 
obtained a proper medical history of Patient S.B., never recorded 
Patient S.B.'s pain or functionality levels, never obtained prior 
medical records for Patient S.B.--nor does Patient S.B.'s medical file 
reflect Respondent requested such records--failed to periodically 
update Patient S.B.'s medical history as treatment progressed, and 
never conducted a sufficient physical examination for fibromyalgia. See 
generally GX 1; Tr. 241-43.
    25. None of Respondent's diagnoses of Patient S.B. for which he 
prescribed controlled substances were based on sufficient clinical 
evidence. Tr. 243.
    26. Over the course of his treatment of Patient S.B., Respondent's 
diagnoses of Patient S.B. for ADD, GAD and fibromyalgia came and went 
without explanation or comment. See generally GX 1; Tr. 188, 193-95. 
Fibromyalgia and ADD are chronic diagnoses. Tr. 188, 193. These erratic 
diagnoses were outside of the standard of care, [especially since these 
diagnoses,] including those made between February 2, 2017, and January 
30, 2019, [were not supported by an adequate medical history and 
physical examination].*\CC\ Tr. 191-92; 195-97.
---------------------------------------------------------------------------

    *\CC\ I have made this change for S.B. and each of the 
subsequent patients for legal clarity pursuant to supra n. *HH.
---------------------------------------------------------------------------

    27. Respondent sometimes prescribed Patient S.B. both hydrocodone 
and Soma, and sometimes only hydrocodone, for fibromyalgia. See GX 1 at 
47-59; Tr. 197:3-17. Respondent never documented any rationale for 
changing Patient S.B.'s course of medication in violation of the 
California standard of care. See GX 1 at 47-59; PFF ] 16; Tr. 199-200.
    28. Respondent never documented an appropriate treatment plan with 
goals and objectives for Patient S.B., never documented an appropriate 
rationale for continued treatment of Patient S.B. with controlled 
substances, and failed to properly discuss the risks and benefits of 
the controlled substances he prescribed to Patient S.B. See generally 
GX 1; Tr. 243.
    29. Respondent also prescribed Patient S.B. the following dangerous 
combinations of controlled substances that put Patient S.B. at serious 
risk of adverse medical consequences, including addiction, overdose, 
and death. Tr. 203-05:
    a. Hydrocodone, Adderall, and Soma on February 2, 2017, May 8, 
2017, June 2, 2017, August 1, 2017, August 30, 2017, November 6, 2017, 
and January 23, 2018. ALJ Ex. 3 at 2-3.
    b. Hydrocodone, Adderall, and Xanax on March 1, 2017, April 4, 
2017, June 28, 2017. ALJ Ex. 3 at 2-3.
    c. Hydrocodone and Adderall on September 29, 2017, July 2018, and 
in August 2018, September 2018, October 2018, and November 2018. ALJ 
Ex. 3 at 3.
    30. Respondent's prescriptions to Patient S.B. for Xanax between 
February 2, 2017, and January 30, 2019, were all for 6 mg of Xanax per 
day. GX 1 at 57-59; Tr. 212-13. The maximum recommended dosage for 
Xanax for treatment of GAD is 4 mg per day, according to the FDA label 
for Xanax. GX 22 at 59; Tr. 213. Prescribing such high dosages of Xanax 
placed Patient S.B. at risk of potentially lethal withdrawal, and 
presented risks of diversion. Tr. 217, 218-19. The fact that Respondent 
prescribed Xanax to Patient S.B. concurrently with opioids, see ALJ Ex. 
3 at 2-3, dramatically increased her risk of overdose and death. Tr. 
217-18.
    31. Respondent noted, on fifteen occasions between February 2, 
2017, and December 21, 2018, that Patient S.B. was opioid dependent and 
refusing detoxification. GX 1 at 49-59. Refusal to detoxify is a 
significant red flag of abuse or diversion, indicating the prescriber 
feels the patient needs to detoxify, but the patient refuses. Tr. 221-
22. Respondent never addressed this red flag, but simply continued to 
prescribe the patient opioids on an as-needed basis. GX 1 at 49-59; Tr. 
222. Prescribing opioids to the patient on an as-needed basis when a 
patient is refusing detoxification is particularly inappropriate, 
because any prescribed opioids must be carefully controlled. Tr. 223.
    32. Patient S.B. provided inconsistent information to other 
providers; she told an orthopedic surgeon during a June 28, 2017 visit 
that she had only a past medical history of anxiety (with no mention of 
fibromyalgia or ADD), and she did not disclose taking any medications 
when she was receiving hydrocodone, Soma, Adderall, and Xanax from 
Respondent. See GX 1 at 30, 57. Patient S.B. also informed the 
orthopedic surgeon that she had no history of trauma, see GX 1 at 30, 
but reported to the California Employment Development Department that 
she was disabled as a result of accident or trauma that had occurred on 
June 15, 2017, see GX 1 at 40. These inconsistent reports were 
significant red flags of abuse or diversion. Tr. 230, 231-32. 
Respondent, however, never addressed these red flags. Tr. 233, 235-37.
    33. Respondent never conducted a urine drug screen on Patient S.B. 
in violation of the California standard of care. Tr. 219:13-16; PFF ] 
18; see generally GX 1.
    34. None of the controlled substance prescriptions Respondent 
issued to Patient S.B. between February 2, 2017, and January 30, 2018, 
were issued for a legitimate medical purpose, or by a practitioner 
acting within the usual course of professional practice. Tr. 244. 
Indeed, according to Dr. Munzing, no patient should receive the drugs 
that Respondent prescribed to Patient S.B. in the dosages, durations, 
and combinations that Respondent prescribed. Tr. 211-12.

B. Patient M.B.

    35. Between January 5, 2018, and November 20, 2019, Respondent 
issued to Patient M.B. the controlled substance prescriptions listed in 
Joint Stipulation No. 13. See ALJ Ex. 3 at 4-5. During this time, 
Respondent diagnosed Patient M.B. with back pain, ADD, and opioid 
dependency. GX 3 at 24-37.
i. Patient M.B.'s Initial Visit and the First Diagnosis for ADD
    36. Respondent's initial encounter with Patient M.B. took place on 
April 19, 2006. GX 3 at 84, 91; Tr. 248-49. At that visit, Respondent 
diagnosed Patient M.B. with chronic back pain, chronic left knee pain, 
and dyslipidemia. GX 3 at 84; Tr. 250-51. Respondent prescribed Patient 
M.B. hydrocodone for chronic back and left knee pain. GX 3 at 84. At 
this initial visit, Respondent failed to:
    a. Take an appropriate medical history, GX 3 at 84; Tr. 252-54;
    b. address Patient M.B.'s pain or functionality levels, GX 3 at 84; 
Tr. 257;
    c. conduct an appropriate physical examination, GX 3 at 84; Tr. 
254-56, 257;
    d. establish appropriate diagnoses for back pain and knee pain and 
therefore to establish a legitimate medical purpose to prescribe 
hydrocodone, Tr. 258; or
    e. establish and document a treatment plan with goals and 
objectives, GX 3 at 84; Tr. 258.
    37. Respondent first diagnosed Patient M.B. with ADD on July 9, 
2013, and prescribed 30 mg of Adderall per day. GX 3 at 46. No history 
was taken, nor evaluations performed, for ADD other than a note saying 
Patient M.B. presented as a ``40 yom with ADD, neck[ ]pain.'' GX 3 at 
46; Tr. 262. Nothing supported Respondent's diagnosis for ADD, and he 
did not establish a legitimate medical purpose to prescribe Adderall. 
Tr. 263. Nor did

[[Page 30585]]

he establish and document a treatment plan with goals and objectives 
for the Adderall. GX 3 at 46; Tr. 263.
ii. Continued Controlled Substance Violations
    38. Throughout the entire course of treatment, Respondent never 
obtained a proper medical history of Patient M.B., recorded Patient 
M.B.'s pain or functionality levels, or obtained prior medical records 
for Patient M.B.--nor does Patient M.B.'s medical file reflect 
Respondent requested such records--failed to periodically update 
Patient M.B.'s medical history as treatment progressed, and never 
conducted a sufficient physical examination for pain. See generally GX 
3; Tr. 287-88.
    39. None of Respondent's diagnoses of Patient M.B. for which he 
prescribed controlled substances between January 5, 2018, and November 
20, 2019, were based on sufficient medical evidence. Tr. 288.
    40. Over the course of his treatment of Patient M.B., Respondent 
frequently changed without comment the diagnoses for which he 
prescribed Patient M.B. hydrocodone. See generally GX 3; Tr. 275-78. 
These erratic diagnoses were outside of the standard of care, 
[especially because these diagnoses], including those made between 
January 5, 2018, and November 20, 2019, [were not supported by an 
adequate medical history and physical examination.] Tr. 278-80.
    41. Other than inquiring into smoking and alcohol use at Patient 
M.B.'s initial visit, see GX 3 at 84, Respondent did not inquire about 
current or past substance abuse until over three years later, on August 
11, 2009, when he had Patient M.B. sign a form stating ``I have no 
history of drug abuse, nor was I treated for drug or substance abuse in 
the past.'' GX 3 at 94. Patient M.B. was never asked about substance 
abuse again--something the California standard of care required 
Respondent to do. PFF ] 16; Tr. 261; see generally GX 3.
    42. Respondent never documented an appropriate treatment plan with 
goals and objectives for Patient M.B., never documented an appropriate 
rationale for continued treatment of Patient M.B. with controlled 
substances, and failed to properly discuss the risks and benefits of 
the controlled substances he prescribed to Patient M.B. See generally 
GX 3; Tr. 288-89.
    43. Respondent also prescribed Patient M.B. dangerous combinations 
of hydrocodone and Adderall approximately monthly from January 2018, 
until July 2019, and once again on November 20, 2019. ALJ Ex. 3 at 4-5. 
These combinations put Patient M.B. at serious risk of adverse medical 
consequences, including addiction, overdose, and death. Tr. 105-06, 
281.
    44. Respondent noted, on at least 11 occasions between March 6, 
2018, and February 4, 2019, that Patient M.B. was opioid dependent, and 
refusing detoxification. GX 3 at 30, 32-36. Respondent never addressed 
this red flag, but simply continued to prescribe the patient 
hydrocodone on an as-needed basis. GX 3 at 30, 32-36; see also Tr. 286-
87.
    45. Indeed, Respondent frequently prescribed Patient M.B. 
hydrocodone as a treatment for the patient's opioid dependency, 
including on March 6, 2018, May 1, 2018, August 16, 2018, September 13, 
2018, October 11, 2018, November 7, 2018, and January 2, 2019. GX 3 at 
30, 32-36.
    46. Opioid dependency does not create a legitimate medical purpose 
to prescribe hydrocodone. To the contrary, treating a patient's opioid 
dependency with hydrocodone is outside of the standard of care and 
outside the usual course of professional practice. Tr. 267-69.
    47. Respondent never conducted a urine drug screen on Patient M.B., 
in violation of the California standard of care. Tr. 284; PFF ] 18; see 
generally GX 3.
    48. None of the controlled substance prescriptions Respondent 
issued to Patient M.B. between January 5, 2018, and November 20, 2019, 
were issued for a legitimate medical purpose or by a practitioner 
acting within the usual course of professional practice. Tr. 289-90. 
According to Dr. Munzing, there is nearly no situation in which a 
patient should receive the drugs that Respondent prescribed to Patient 
M.B. from January 5, 2018, to November 20, 2019, in those dosages, 
durations, and combinations, and Patient M.B. did not present any such 
situation. Tr. 283-84.

C. Patient B.C.

    49. Between January 25, 2017, and December 19, 2019, Respondent 
issued to Patient B.C. the controlled substance prescriptions listed in 
Joint Stipulation No. 16. See ALJ Ex. 3 at 5-7. During this time, 
Respondent diagnosed Patient B.C. with back pain, GAD, ADD, and opioid 
dependency. GX 5 at 17-33.
i. Patient B.C.'s Initial Visit and the First Diagnosis for ADD
    50. Respondent's initial encounter with Patient B.C. took place on 
March 27, 2014. GX 5 at 48, 55; Tr. 293:1-16. At that visit, Respondent 
diagnosed Patient B.C. with GAD and back pain. GX 5 at 48; Tr. 294. 
Respondent prescribed Patient B.C. hydrocodone for back pain and 6 mg 
of Xanax for GAD. GX 5 at 48; Tr. 294. At this initial visit, 
Respondent failed to:
    a. Take an appropriate medical history, GX 5 at 84; Tr. 295:7-
296:15;
    b. address Patient B.C.'s pain or functionality levels, GX 5 at 84; 
Tr. 297-98;
    c. conduct an appropriate physical examination, GX 5 at 84; Tr. 
296:16-297;
    d. establish an appropriate diagnosis for back pain or GAD as 
necessary to establish a legitimate medical purpose to prescribe 
hydrocodone or Xanax, Tr. 298-99; or
    e. establish and document a treatment plan with goals and 
objectives, GX 5 at 85; Tr. 299.
    51. Respondent only inquired about Patient B.C.'s substance abuse 
on March 27, 2014. See GX 5 at 48, 57; Tr. 296, 299. Patient B.C. was 
never asked about substance abuse again--something the California 
standard of care required Respondent to do. PFF ] 16; Tr. 300; see 
generally GX 5.
    52. Respondent first diagnosed Patient B.C. with ADD on May 20, 
2014, and prescribed 60 mg of Adderall per day. GX 5 at 47. He took no 
history, and performed no evaluations, for ADD, other than a note 
saying ``Pt has ADD--give [A]dderall 30mg bid (SED).'' Id. Respondent's 
diagnosis for ADD was unsupported; he did not establish a legitimate 
medical purpose to prescribe Adderall, nor did he establish and 
document a treatment plan with goals and objectives. GX 5 at 47; Tr. 
302.
ii. Continued Controlled Substance Violations
    53. Throughout the entire course of treatment, Respondent never 
obtained a proper medical history of Patient B.C., never recorded 
Patient B.C.'s pain or functionality levels, failed to periodically 
update Patient B.C.'s medical history as treatment progressed, and 
never conducted a sufficient physical examination for pain. See 
generally GX 5; Tr. 335-36.
    54. None of Respondent's diagnoses of Patient B.C. for which he 
prescribed controlled substances between January 25, 2017, and December 
19, 2019, were based on sufficient medical evidence. Tr. 336.
    55. Over the course of his treatment of Patient B.C., Respondent's 
diagnoses for pain, GAD, and ADD frequently came and went without 
comment or explanation. See generally GX 5; Tr. 316-19; 319-21; 322-25. 
Like chronic pain and GAD, ADD is a chronic condition. Tr. 167:13-16. 
These erratic diagnoses were outside of the standard of care, 
[especially since these

[[Page 30586]]

diagnoses,] including those made between January 25, 2017, and December 
19, 2019, [were not supported by an adequate medical history and 
physical examination.] Tr. 318-19; 321-22; 325-26.
    56. Respondent never documented an appropriate treatment plan with 
goals and objectives for Patient B.C., never documented an appropriate 
rationale for continued treatment of Patient B.C. with controlled 
substances, and failed to properly discuss the risks and benefits of 
the controlled substances he prescribed to Patient B.C. See generally 
GX 5; Tr. 337.
    57. Respondent also prescribed Patient B.C. the following dangerous 
combinations of controlled substances, which put Patient B.C. at 
serious risk of adverse medical consequences, including addiction, 
overdose and death. Tr. 326-30:
    a. Hydrocodone, Adderall, and Xanax on January 25, 2017, April 18, 
2017, June 19, 2017, and July 31, 2018. ALJ Ex. 3 at 5-6.
    b. Hydrocodone and Xanax on May 19, 2017, and approximately monthly 
from February 16, 2018, until July 3, 2018. ALJ Ex. 3 at 5-06.
    c. Hydrocodone and Adderall on September 25, 2018, December 19, 
2018, February 13, 2019, April 9, 2019, June 5, 2019, July 30, 2019, 
October 25, 2019, and December 19, 2019. ALJ Ex. 3 at 5-7.
    58. Respondent's prescriptions to Patient B.C. for Xanax between 
January 25, 2017, and July 31, 2018, were all for 6 mg of Xanax per 
day. GX 5 at 28-33. Such high dosages of Xanax placed Patient B.C. at 
risk of potentially lethal withdrawal, and presented risks of 
diversion. Tr. 294-95. The fact that Respondent prescribed Xanax to 
Patient B.C. concurrently with opioids, see ALJ Ex. 3 at 5-6, 
dramatically increased his risk of overdose and death. Tr. 295.
    59. Respondent noted, on 19 occasions between January 25, 2017, and 
February 13, 2019, that Patient B.C. was opioid dependent, and refusing 
detoxification. GX 5 at 23, 25-33. Respondent never addressed this red 
flag, but simply continued to prescribe the patient hydrocodone on an 
as-needed basis. GX 5 at 23, 25-33; see also Tr. 333-34.
    60. Indeed, Respondent frequently improperly and illegally 
prescribed Patient B.C. hydrocodone as a treatment for the patient's 
opioid dependency, including on January 25, 2017, June 19, 2017, July 
17, 2017, March 26, 2018, May 11, 2018, July 3, 2018, August 28, 2018, 
October 22, 2018, December 19, 2018, and February 13, 2019. GX 5 at 23, 
25-33; Tr. 306-07.
    61. Respondent never conducted a urine drug screen on Patient B.C., 
in violation of the California standard of care. Tr. 333; PFF ] 18; see 
generally GX 5.
    62. None of the controlled substance prescriptions Respondent 
issued to Patient B.C. between January 25, 2017, and December 19, 2019, 
were issued for a legitimate medical purpose or by a practitioner 
acting within the usual course of professional practice. Tr. 289-90. 
According to Dr. Munzing, there is nearly no situation in which a 
patient should receive the drugs that Respondent prescribed to Patient 
B.C. from January 25, 2017, to December 19, 2019, in those dosages, 
durations, and combinations, and Patient B.C. did not present any such 
situation. Tr. 337-38.

D. Patient J.C.

    63. Between January 16, 2018, and December 30, 2019, Respondent 
issued to Patient J.C. the controlled substance prescriptions listed in 
Joint Stipulation No. 19. See ALJ Ex. 3 at 7-8. During this time, 
Respondent diagnosed Patient J.C. with back pain, GAD, and opioid 
dependency. GX 7 at 168-180.
i. Patient J.C.'s Initial Visit and the First Diagnosis for Back Pain
    64. Respondent's initial encounter with Patient J.C. took place on 
May 18, 2009. GX 7 at 216, 233; Tr. 383:1-384:5. At that visit, 
Respondent diagnosed Patient J.C. with migraine headaches and GAD. GX 7 
at 216; Tr. 384. Respondent prescribed Patient J.C. hydrocodone for 
migraines and Xanax for GAD. GX 7 at 216; Tr. 384. At this initial 
visit, Respondent failed to:
    a. Take an appropriate medical history, GX 7 at 216; Tr. 385-86;
    b. address Patient J.C.'s pain or functionality levels, GX 7 at 
216; Tr. 387;
    c. conduct an appropriate physical examination, GX 7 at 216; Tr. 
386:16-387:3;
    d. establish appropriate diagnoses for migraines or GAD and so 
establish a legitimate medical purpose to prescribe hydrocodone or 
Xanax, Tr. 387-88; or
    e. establish and document a treatment plan with goals and 
objectives, GX 7 at 216; Tr. 388.
    65. Respondent first diagnosed Patient J.C. with back pain on July 
21, 2016, and prescribed hydrocodone. GX 7 at 189. There was no history 
taken, or evaluations performed, for back pain, other than a note 
saying Patient J.C. presented as a ``39 yom with GAD, chronic back 
pain.'' Id. Respondent's diagnosis for back pain was unsupported; he 
did not establish a legitimate medical purpose to prescribe 
hydrocodone, nor did he establish and document a treatment plan with 
goals and objectives. Tr. 391, 392-93, 393-94.
ii. Continued Controlled Substance Violations
    66. Throughout the entire course of treatment, Respondent never 
obtained a proper medical history of Patient J.C., never recorded 
Patient J.C.'s pain or functionality levels, never obtained prior 
medical records for Patient J.C.--nor does Patient J.C.'s medical file 
reflect Respondent requested such records--failed to periodically 
update Patient J.C.'s medical history as treatment progressed, and 
never conducted a sufficient physical examination for pain. See 
generally GX 7; Tr. 424-26.
    67. None of Respondent's diagnoses of Patient J.C. for which he 
prescribed controlled substances between January 16, 2018, and December 
30, 2019, were based on sufficient medical evidence. Tr. 426.
    68. Over the course of his treatment of Patient J.C., Respondent 
frequently changed without comment the diagnoses for which he 
prescribed Patient J.C. opioids, as well as the opioids prescribed. See 
generally GX 7; Tr. 409-14. These erratic diagnoses were outside of the 
standard of care, [especially since those diagnoses,] including those 
made between January 16, 2018, and December 30, 2019, [were not 
supported by an adequate medical history and physical examination.] Tr. 
414-15.
    69. Other than inquiring into smoking and alcohol use at Patient 
J.C.'s initial visit, see GX 7 at 216, Respondent did not inquire about 
current or past substance abuse until August 17, 2009, when he had 
Patient J.C. sign a form stating, ``I have no history of drug abuse, 
nor was I treated for drug or substance abuse in the past.'' GX 7 at 
227. Patient J.C. was never asked about substance abuse again--
something the California standard of care required Respondent to do. 
PFF ] 16; Tr. 359-60; see generally GX 7.
    70. Respondent never documented an appropriate treatment plan with 
goals and objectives for Patient J.C., never documented an appropriate 
rationale for continued treatment of Patient J.C. with controlled 
substances, and failed to properly discuss the risks and benefits of 
the controlled substances he prescribed to Patient J.C. See generally 
GX 7; Tr. 426-27.
    71. Respondent also prescribed Patient J.C. dangerous combinations 
of hydrocodone and Valium approximately monthly from January 16, 2018, 
until January 18, 2019, and once again on

[[Page 30587]]

May 6, 2019. ALJ Ex. 3 at 7-8. These combinations put Patient J.C. at 
serious risk of adverse medical consequences, including addiction, 
overdose, and death. Tr. 417-18.
    72. Respondent noted, on 14 occasions between January 16, 2018, and 
February 19, 2019, that Patient J.C. was opioid dependent, and refusing 
detoxification. GX 7 at 173, 175-180. Respondent never addressed this 
red flag, but simply continued to prescribe the patient hydrocodone on 
an as-needed basis. GX 7 at 173, 175-80; see also Tr. 423-24.
    73. Indeed, Respondent frequently improperly and illegally 
prescribed Patient J.C. hydrocodone as a treatment for the patient's 
opioid dependency, including on February 16, 2018, April 16, 2018, June 
15, 2018, August 15, 2018, October 17, 2018, and December 13, 2018. GX 
7 at 175-80; Tr. 398-400.
    74. Respondent never conducted a urine drug screen on Patient J.C., 
in violation of the California standard of care. Tr. 421; PFF ] 18; see 
generally GX 7.
    75. None of the controlled substance prescriptions Respondent 
issued to Patient J.C. between January 16, 2018, and December 30, 2019, 
were issued for a legitimate medical purpose or by a practitioner 
acting within the usual course of professional practice. Tr. 427-28. 
According to Dr. Munzing, there is nearly no situation in which a 
patient should receive the drugs that Respondent prescribed to Patient 
J.C. from January 16, 2018, to December 30, 2019, in those dosages, 
durations, and combinations, and Patient J.C. did not present any such 
situation. Tr. 418-19.

E. Patient D.D.

    76. Between January 4, 2018, and February 12, 2019, Respondent 
issued to Patient D.D. the controlled substance prescriptions listed in 
Joint Stipulation No. 22. See ALJ Ex. 3 at 9. During this time, 
Respondent diagnosed Patient D.D. with back pain, GAD, and opioid 
dependency. GX 9 at 37-43.
i. Patient D.D.'s Initial Visit
    77. Respondent's initial encounter with Patient D.D. took place on 
July 9, 2008. GX 9 at 74, 80; Tr. 430-31. At that visit, Respondent 
diagnosed Patient D.D. with GAD and back pain. GX 9 at 74; Tr. 431. 
Respondent prescribed Patient D.D. hydrocodone and Soma for back pain, 
and Valium for GAD. GX 9 at 74; Tr. 431. At this initial visit, 
Respondent failed to:
    a. Take an appropriate medical history, GX 9 at 74; Tr. 433-34;
    b. address Patient D.D.'s pain or functionality levels, GX 9 at 74; 
Tr. 435-36;
    c. conduct an appropriate physical examination, GX 9 at 74; Tr. 
434-35;
    d. establish appropriate diagnoses for back pain or GAD and so to 
establish a legitimate medical purpose to prescribe hydrocodone, Soma, 
or a benzodiazepine, Tr. 436:3-21; or
    e. establish and document a treatment plan with goals and 
objectives, GX 9 at 74; Tr. 436:22-25.
ii. Continued Controlled Substance Violations
    78. Throughout the entire course of treatment, Respondent never 
obtained a proper medical history of Patient D.D., never recorded 
Patient D.D.'s pain or functionality levels, never obtained prior 
medical records for Patient D.D.--nor does Patient D.D.'s medical file 
reflect Respondent requested such records--failed to periodically 
update Patient D.D.'s medical history as treatment progressed, and 
never conducted a sufficient physical examination for pain. See 
generally GX 9; Tr. 465-66.
    79. None of Respondent's diagnoses of Patient D.D. for which he 
prescribed controlled substances between January 4, 2018, and February 
12, 2019, were based on sufficient medical evidence. Tr. 467.
    80. Over the course of his treatment of Patient D.D., Respondent 
frequently changed without comment the diagnoses for which he 
prescribed Patient D.D. opioids. See generally GX 9; Tr. 450-56. These 
erratic diagnoses were outside of the standard of care, [especially 
since these diagnoses,] including those made between January 4, 2018, 
[were not supported by an adequate medical history and physical 
examination.] Tr. 453-56.
    81. Other than inquiring into smoking and alcohol use at Patient 
D.D.'s initial visit, see GX 9 at 74, Respondent did not inquire about 
current or past substance abuse until over one year later, on August 
28, 2009, when he had Patient D.D. sign a form stating ``I have no 
history of drug abuse, nor was I treated for drug or substance abuse in 
the past.'' GX 9 at 77. Respondent never asked Patient D.D. about 
substance abuse again--something the California standard of care 
required Respondent to do. PFF ] 16; see generally GX 9.
    82. Respondent never documented an appropriate treatment plan with 
goals and objectives for Patient D.D., never documented an appropriate 
rationale for continued treatment of Patient D.D. with controlled 
substances, and failed to properly discuss the risks and benefits of 
the controlled substances he prescribed to Patient D.D. See generally 
GX 9; Tr. 467.
    83. Respondent also prescribed Patient D.D. the following dangerous 
combinations of controlled substances, which put Patient D.D. at 
serious risk of adverse medical consequences, including addiction, 
overdose, and death, Tr. 457-58:
    a. Hydrocodone and Soma approximately monthly from January 4, 2018, 
through August 10, 2018, and October 16, 2018, through January 11, 
2019. ALJ Ex. 3 at 9.
    b. Hydrocodone and Xanax on September 19, 2018. ALJ Ex. 3 at 9.
    84. Respondent noted, on 10 occasions between January 16, 2018, and 
February 12, 2019, that Patient D.D. was opioid dependent and refusing 
detoxification. GX 9 at 37, 39-43. Respondent never addressed this red 
flag, but simply continued to prescribe the patient hydrocodone on an 
as-needed basis. GX 9 at 37, 39-43.; see also Tr. 463-65.
    85. Indeed, Respondent frequently illegally and improperly 
prescribed Patient D.D. hydrocodone as a treatment for the patient's 
opioid dependency, including on March 23, 2018, July 6, 2018, August 
10, 2018, October 16, 2018, December 13, 2018, and February 12, 2019. 
GX 9 at 37, 39-43; Tr. 454. Moreover, on all of those occasions except 
February 12, 2019, Respondent also prescribed Patient D.D. Soma for his 
opioid dependency. Soma is not indicated as a treatment for opioid 
dependency, and prescribing it to treat opioid dependency is outside 
the usual course of professional practice. GX 9 at 39-43; Tr. 454-55.
    86. Although Patient D.D. presented a risk of abuse or diversion, 
Respondent never conducted a urine drug screen on Patient D.D., in 
violation of the California standard of care. Tr. 461-62; PFF ] 18; see 
generally GX 9.
    87. None of the controlled substance prescriptions Respondent 
issued to Patient D.D. between January 4, 2018, and February 12, 2019, 
were issued for a legitimate medical purpose or by a practitioner 
acting within the usual course of professional practice. Tr. 468:4-16. 
According to Dr. Munzing, there is nearly no situation in which any 
patient should receive the drugs that Respondent prescribed to Patient 
D.D. between January 4, 2018, and February 12, 2019, in those dosages, 
durations, and combinations, and Patient D.D. did not present any such 
situation. Tr. 460-61.

[[Page 30588]]

F. Patient J.M.

    88. Between January 10, 2017, and December 31, 2019, Respondent 
issued to Patient J.M. the controlled substance prescriptions listed in 
Joint Stipulation No. 25. See ALJ Ex. 3 at 10-12. During this time, 
Respondent diagnosed Patient J.M. with back pain, GAD, and opioid 
dependency. GX 11 at 18-42.
i. Patient J.M.'s Initial Visit
    89. Respondent's initial encounter with Patient J.M. took place on 
May 14, 2007. GX 11 at 104, 111; Tr. 471. At that visit, Respondent 
diagnosed Patient J.M. with, inter alia, back pain and GAD. GX 11 at 
104; Tr. 472. Respondent prescribed Patient J.M. hydrocodone for back 
pain and 6 mg of Xanax per day for GAD. GX 11 at 104; 472. At this 
initial visit, Respondent failed to:
    a. Take an appropriate medical history, GX 11 at 104; Tr. 473-74
    b. address Patient J.M.'s pain or functionality levels, GX 11 at 
104; Tr. 474-75;
    c. conduct an appropriate physical examination, GX 11 at 104; Tr. 
474;
    d. establish an appropriate diagnosis for back pain and so 
establish a legitimate medical purpose to prescribe hydrocodone or 
Soma, Tr. 475; or
    e. establish and document a treatment plan with goals and 
objectives, GX 11 at 104; Tr. 475-76.
ii. Controlled Substance Violations
    90. Throughout the entire course of treatment, Respondent never 
obtained a proper medical history of Patient J.M., never recorded 
Patient J.M.'s pain or functionality levels, never obtained prior 
medical records for Patient J.M.--nor does Patient J.M.'s medical file 
reflect Respondent requested such records--failed to periodically 
update Patient J.M.'s medical history as treatment progressed, and 
never conducted a sufficient physical examination for pain. See 
generally GX 11; Tr. 564-66.
    91. None of Respondent's diagnoses of Patient J.M. for which he 
prescribed controlled substances between January 10, 2017, and December 
31, 2019, were based on sufficient medical evidence. Tr. 566.
    92. Over the course of his treatment of Patient J.M., Respondent 
frequently changed without comment the diagnoses for which he 
prescribed Patient J.M. hydrocodone. See generally GX 11; Tr. 502-03, 
504. These erratic diagnoses were outside of the standard of care, 
[especially since these diagnoses,] including those made between 
January 10, 2017, [were not supported by an adequate medical history 
and physical examination.] Tr. 503-04.
    93. Other than inquiring into smoking and alcohol use at Patient 
J.M.'s initial visit, see GX 11 at 104; Tr. 475, Respondent did not 
inquire about substance abuse until over two years later, on September 
21, 2009, when he had Patient J.M. sign a form stating ``I have no 
history of drug abuse, nor was I treated for drug or substance abuse in 
the past.'' GX 11 at 115. Respondent never asked Patient J.M. about 
substance abuse again as required by the California standard of care. 
PFF ] 16; Tr. 481-82; see generally GX 11.
    94. Respondent never documented an appropriate treatment plan with 
goals and objectives for Patient J.M., never documented an appropriate 
rationale for continued treatment of Patient J.M. with controlled 
substances, and failed to properly discuss the risks and benefits of 
the controlled substances he prescribed to Patient J.M. See generally 
GX 11; Tr. 566-67.
    95. Respondent also prescribed Patient J.M. the following dangerous 
combinations of controlled substances, which put Patient J.M. at 
serious risk of adverse medical consequences, including addiction, 
overdose, and death, Tr. 505-10:
    a. Hydrocodone, Xanax, and Soma (a combination referred to by 
illicit users as ``the Holy Trinity,'' Tr. 506) in May of 2018, and 
November of 2018. ALJ Ex. 3 at 11.
    b. Hydrocodone and Xanax on 26 occasions between January 25, 2017, 
and February 20, 2019. ALJ Ex. 3 at 10-11.
    96. These combinations of drugs are highly sought after for abuse 
and diversion. Tr. 505-06, 510. Indeed, there is almost never any 
medical justification for prescribing a combination of hydrocodone, 
Xanax, and Soma. Tr. 507-08. Specifically, this combination was 
prescribed on January 25, 2017, June 19, 2017, August 14, 2017, 
September 14, 2017, October 17, 2017, November 6, 2017, November 20, 
2017, January 25, 2018, February 7, 2018, February 23, 2018, March of 
2018, April 9, 2018, April 25, 2018, May 23, 2018, June 11, 2018, June 
27, 2018, July 11, 2018, July 25, 2018, August 29, 2018, September 17, 
2018, October 17, 2018, December 5, 2018, December 21, 2018, January of 
2019, February 6, 2019, and February 20, 2019.
    97. Respondent's prescriptions to Patient J.M. for Xanax between 
January 10, 2017, and February 20, 2019, were repeatedly for at least 6 
mg of Xanax per day. GX 11 at 26-42; ALJ Ex. 3 at 10-11. Prescribing 
such high dosages of Xanax placed Patient J.M. at risk of potentially 
lethal withdrawal, and presented risks of diversion. Tr. 217, 218-19. 
The fact that Respondent often prescribed Xanax to Patient J.M. 
concurrently with opioids, see ALJ Ex. 3 at 10-11, dramatically 
increased his risk of overdose and death. Tr. 217-18.
    98. Indeed, between January 10, 2017, and November 2, 2018, 
Respondent repeatedly issued Patient J.M. substantially early 
prescriptions for Xanax--issuing Patient J.M. 40 prescriptions for 90 
units of Xanax 2 mg, or a prescription approximately every 17 days. ALJ 
Ex. 3 at 10-11. This provided Patient J.M. with over 10.5 mg of Xanax 
per day, or more than double the maximum recommended daily dose of 4 
mg. Id.; Tr. 513-15.
    99. Further, between January 10, 2017, and November 2, 2018, 
Patient J.M. alternated filling his Xanax prescriptions at one of two 
different pharmacies. Tr. 520-21; GX 17; GX 18. This was a significant 
red flag or abuse and diversion, indicating that Patient J.M. was 
seeking to avoid the pharmacies detecting how much Xanax he was being 
prescribed, but Respondent did nothing to address this. Tr. 521-22.
    100. Instead, Respondent actually assisted Patient J.M. in 
obtaining controlled substances Patient J.M. might not otherwise have 
been able to have filled.*\DD\ Respondent frequently issued Patient 
J.M. a written prescription for hydrocodone which Patient J.M. would 
fill at one pharmacy, and that same day, Respondent would call in a 
prescription for Xanax to another pharmacy. Tr. 528-547, 550-58. 
Respondent did this on at least the following dates:
---------------------------------------------------------------------------

    *\DD\ Whether or not Respondent was knowingly assisting J.M. in 
diversion was not material to my decision in this matter as the 
overwhelming evidence already established that Respondent issued the 
relevant prescriptions outside the usual course of professional 
practice and beneath the standard of care in California.
---------------------------------------------------------------------------

    a. January 25, 2017, see GX 11 at 42; GX 12 at 1-2; GX 17 at rows 
425, 575;
    b. June 19, 2017, see GX 11 at 41; GX 12 at 5-6; GX 17 at rows 
1,746, 1,825; 28
    c. November 6, 2017, see GX 11 at 40; GX 12 at 10-11; GX 17 at rows 
2,764, 2,788;
    d. February 7, 2018, see GX 11 at 38; GX 12 at 14; GX 13 at 20; GX 
18 at rows 473, 474;
    e. May 11, 2018, see GX 11 at 36; GX 12 at 22; GX 13 at 25; GX 18 
at rows 994, 1,120;
    f. June 11, 2018, see GX 11 at 36; GX 12 at 24; GX 13 at 27; GX 18 
at rows 1,228, 1,386;
    g. July 11, 2018, see GX 11 at 35; GX 12 at 26-27; GX 18 at rows 
1,472, 1,553;

[[Page 30589]]

    h. September 17, 2018, see GX 11 at 33; GX 12 at 33; GX 13 at 32; 
GX 18 at rows 2,102, 2,229; and
    i. October 17, 2018, see GX 11 at 32; GX 12 at 34; GX 13 at 34; GX 
18 at rows 2,341, 2,342.
    101. This was a ``bright red flag'' indicating that Patient J.M. 
was seeking to avoid having a pharmacy potentially refuse to fill 
concurrent prescriptions for opioids and benzodiazepines. Tr. 558-59.
    102. Between November 20, 2017, and February 20, 2019, Respondent 
noted 17 times in Patient J.M.'s medical file that Patient J.M. was 
opioid dependent, and refusing detoxification. GX 11 at 26-39. 
Respondent never addressed this red flag, but simply continued to 
prescribe the patient hydrocodone on an as-needed basis. GX 11 at 26-
39; see also Tr. 561-64.
    103. Indeed, Respondent frequently improperly and illegally 
prescribed Patient J.M. hydrocodone as a treatment for the patient's 
opioid dependency, including on at least April 25, 2018, May 23, 2018, 
June 27, 2018, August 29, 2018, October 17, 2018, and December 21, 
2018. GX 11 at 30, 32, 34-37; Tr. 486-88.
    104. Further, Respondent's prescribing of hydrocodone was sporadic. 
See, e.g., GX 11 at 3942; Tr. 500:5-501:13. However, Respondent never 
documented any rationale for changing Patient J.M.'s course of 
medication with respect to hydrocodone. See GX 1 at 18-42; Tr. 501.
    105. Although Patient J.M. presented significant risks of abuse or 
diversion, Respondent never conducted a urine drug screen on Patient 
J.M., in violation of the California standard of care. Tr. 560-61:12; 
PFF ] 18; see generally GX 11.
    106. None of the controlled substance prescriptions Respondent 
issued to Patient J.M. between January 10, 2017, and December 31, 2019, 
were issued for a legitimate medical purpose or by a practitioner 
acting within the usual course of professional practice. Tr. 567-68. 
Dr. Munzing testified that there is no situation in which any patient 
should receive the drugs that Respondent prescribed to Patient J.M. 
between January 10, 2017, and December 31, 2019, in those dosages, 
durations, and combinations. Tr. 507-08.

G. Patient K.S.

    107. Between January 19, 2018, and January 31, 2019, Respondent 
issued to Patient K.S. the controlled substance prescriptions listed in 
Joint Stipulation No. 29. See ALJ Ex. 3 at 12-13. During this time 
period, Respondent diagnosed Patient K.S. with back pain, GAD, ADD, and 
opioid dependency. GX 14 at 31-41.
i. Patient K.S.'s Initial Visit and the First Prescriptions for Xanax 
and Adderall
    108. Respondent's initial encounter with Patient K.S. took place on 
June 21, 2007. GX 14 at 110, 117; Tr. 570:8-571:3. At that visit, 
Respondent diagnosed Patient K.S. with back pain. GX 14 at 110; Tr. 
571. Respondent prescribed Patient K.S. hydrocodone and Soma for back 
pain. GX 14 at 110; Tr. 571. At this initial visit, Respondent failed 
to:
    a. Take an appropriate medical history, GX 14 at 110; Tr. 572:4-23;
    b. address Patient K.S.'s pain or functionality levels, GX 14 at 
110; Tr. 573:1823;
    c. conduct an appropriate physical examination, GX 14 at 110; Tr. 
572-73
    d. establish an appropriate diagnosis for back pain and so 
establish a legitimate medical purpose to prescribe hydrocodone or 
Soma, Tr. 574; or
    e. establish and document a treatment plan with goals and 
objectives, GX 14 at 110; Tr. 574:16-21.
    109. Respondent first diagnosed Patient K.S. with GAD on May 1, 
2012, and prescribed 6 mg of Xanax per day. GX 14 at 80; Tr. 577. There 
was no history taken, or evaluations performed for GAD, other than an 
insufficient note saying Patient K.S. presented as a ``28 yom with GAD, 
neck pain.'' GX 14 at 80. Respondent's diagnosis for GAD was completely 
unsupported as he did not establish a legitimate medical purpose to 
prescribe Xanax, nor did he establish and document a treatment plan 
with goals and objectives. Id.; Tr. 579-81.
    110. Respondent first prescribed Patient K.S. Adderall on November 
18, 2013. GX 14 at 70. There was no history taken, evaluations 
performed, or even any diagnosis made; there was only a note saying 
``Adderall 30 mg #60, [one] bid (SED).'' Id.; Tr. 581. Respondent did 
not establish a legitimate medical purpose to prescribe Adderall, nor 
did he establish and document a treatment plan with goals and 
objectives. Tr. 582:16-23. Respondent later diagnosed Patient K.S. with 
ADD, see e.g., GX 14 at 41, but he had never obtained sufficient 
medical evidence for such a diagnosis. Tr. 583-84.
ii. Continued Controlled Substance Violations
    111. Throughout the entire course of treatment, Respondent never 
obtained a proper medical history of Patient K.S., never recorded 
Patient K.S.'s pain or functionality levels, never obtained prior 
medical records for Patient K.S.--nor does Patient K.S.'s medical file 
reflect Respondent requested such records--failed to periodically 
update Patient K.S.'s medical history as treatment progressed, and 
never conducted a sufficient physical examination for pain. See 
generally GX 14; Tr. 617-19.
    112. None of Respondent's diagnoses of Patient K.S. for which he 
prescribed controlled substances between January 19, 2018, and January 
31, 2019, were based on sufficient medical evidence. Tr. 619:6-13.
    113. Over the course of his treatment of Patient K.S., Respondent's 
diagnoses for pain, GAD, and ADD frequently came and went without 
comment or explanation. See generally GX 14; Tr. 598-601; 602-05; 605-
08. These erratic diagnoses were outside of the standard of care, 
[especially since these diagnoses,] including those made between 
January 19, 2018, and January 31, 2019, [were not supported by an 
adequate medical history and physical examination.] Tr. 601-02; 604-05; 
608-09.
    114. Other than inquiring into smoking and alcohol use at Patient 
K.S.'s initial visit, see GX 14 at 110; Tr. 573-74, Respondent did not 
inquire about current or past substance abuse until over two years 
later, on August 5, 2009, when he had Patient K.S. sign a form stating, 
``I have no history of drug abuse, nor was I treated for drug or 
substance abuse in the past.'' GX 14 at 119. Respondent never asked 
Patient K.S. about substance abuse again as required by the California 
standard of care. PFF ] 16; Tr. 574-75; see generally GX 14.
    115. Respondent never documented an appropriate treatment plan with 
goals and objectives for Patient K.S., never documented an appropriate 
rationale for continued treatment of Patient K.S. with controlled 
substances, and failed to properly discuss the risks and benefits of 
the controlled substances he prescribed to Patient K.S. See generally 
GX 14; Tr. 619-20.
    116. Respondent also prescribed Patient K.S. the following 
dangerous combinations of controlled substances, that put Patient K.S. 
at serious risk of adverse medical consequences, including addiction, 
overdose, and death, Tr. 609-11:
    a. Hydrocodone, Adderall, and Xanax approximately monthly from 
January 19, 2018, through August of 2018, and again in November of 
2018. ALJ Ex. 3 at 12-13.
    b. Hydrocodone and Xanax on August 29, 2018, October 2, 2018, 
October 31, 2018, and November 28, 2018. ALJ Ex. 3 at 13.

[[Page 30590]]

    117. Respondent's prescriptions to Patient K.S. for Xanax between 
January 19, 2018, and January 31, 2019, were all for 6 mg of Xanax per 
day. GX 14 at 33-41; ALJ Ex. 3 at 12-13. Prescribing such high dosages 
of Xanax placed Patient K.S. at risk of potentially lethal withdrawal, 
and presented risks of diversion. Tr. 577-78. The fact that Respondent 
prescribed Xanax to Patient K.S. concurrently with opioids, see ALJ Ex. 
3 at 12-13, dramatically increased his risk of overdose and death. Tr. 
579.
    118. Respondent noted on 13 occasions between January 19, 2018, and 
January 31, 2019, that Patient K.S. was opioid dependent, and refusing 
detoxification. GX 14 at 31-41. Respondent never addressed this red 
flag, but simply continued to prescribe the patient hydrocodone on an 
as-needed basis. GX 14 at 31-41; see also Tr. 615-17.
    119. Indeed, Respondent frequently improperly and illegally 
prescribed Patient K.S. hydrocodone as a treatment for the patient's 
opioid dependency, including on February 27, 2018, April 30, 2018, July 
3, 2018, August 3, 2018, October 2, 2018, November 28, 2018, and 
January 2, 2019. GX 14 at 31, 33, 35-37, 39-40; Tr. 586-88.
    120. Although Patient K.S. presented significant risks of abuse or 
diversion, Respondent never conducted a urine drug screen on Patient 
K.S. in violation of the California standard of care. Tr. 614; PFF ] 
18; see generally GX 14.
    121. None of the controlled substance prescriptions Respondent 
issued to Patient K.S. between January 19, 2018, and January 31, 2019, 
were issued for a legitimate medical purpose or by a practitioner 
acting within the usual course of professional practice. Tr. 620. 
According to Dr. Munzing, there is no situation in which a patient 
should receive the drugs that Respondent prescribed to Patient K.S. 
between January 19, 2018, and January 31, 2019, in those dosages, 
durations, and combinations. Tr. 613.
    122. Respondent's prescribing of controlled substances to Patients 
S.B., M.B., B.C., J.C., D.D., J.M., K.S. constituted clearly excessive 
prescribing. Tr. 621.

Analysis

Findings as to Allegations

    The Government alleges that the Respondent's COR should be revoked 
and any applications should be denied, because the Respondent violated 
federal and California law, by issuing numerous prescriptions for 
Schedule II through IV controlled substances outside the usual course 
of professional practice and not for a legitimate medical purpose to 
seven individuals as recently as December 31, 2019. [I find that each 
of the relevant prescriptions were issued outside of the usual course 
of professional practice and beneath the standard of care in California 
in violation of both federal and state law.] *\EE\ In the adjudication 
of a revocation or suspension of a COR, DEA bears the burden of proving 
that the requirements for such revocation or suspension are satisfied. 
21 CFR 1301.44(e). Where the Government has sustained its burden and 
established that a respondent has committed acts that render his 
registration inconsistent with the public interest, to rebut the 
Government's prima facie case, a respondent must both accept 
responsibility for his actions and demonstrate that he will not engage 
in future misconduct. Patrick W. Stodola, M.D., 74 FR 20727, 20734 
(2009).
---------------------------------------------------------------------------

    * \EE\ Text modified for legal clarity.
---------------------------------------------------------------------------

    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 FR 
38363, 38364 (2013). Where the Government has sustained its burden and 
established that a respondent has committed acts inconsistent with the 
public interest, that respondent must present sufficient mitigating 
evidence to assure the Administrator that he can be entrusted with the 
responsibility commensurate with such a registration. Medicine Shoppe-
Jonesborough, 73 FR 364, 387 (2008).
    The Agency's conclusion that ``past performance is the best 
predictor of future performance'' has been sustained on review, Alra 
Labs., Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), as has the 
Agency's consistent policy of strongly weighing whether a registrant 
who has committed acts inconsistent with the public interest has 
accepted responsibility and demonstrated that he or she will not engage 
in future misconduct. Hoxie v. DEA, 419 F.3d 477, 482-83 (6th Cir. 
2005); see also Ronald Lynch, M.D., 75 FR 78745, 78754 (2010) (holding 
that the Respondent's attempts to minimize misconduct undermined 
acceptance of responsibility); George C. Aycock, M.D., 74 FR 17529, 
17543 (2009) (finding that much of the respondent's testimony 
undermined his initial acceptance that he was ``probably at fault'' for 
some misconduct); Jayam Krishna-Iyer, M.D., 74 FR 459, 463 (2009) 
(noting, on remand, that despite the respondent's having undertaken 
measures to reform her practice, revocation had been appropriate 
because the respondent had refused to acknowledge her responsibility 
under the law); Medicine Shoppe-Jonesborough, 73 FR at 387 (noting that 
the respondent did not acknowledge recordkeeping problems, let alone 
more serious violations of federal law, and concluding that revocation 
was warranted).*\FF\
---------------------------------------------------------------------------

    *\FF\ Remaining text omitted for brevity and clarity.
---------------------------------------------------------------------------

California Law

    The applicable California Codes are: *\GG\
---------------------------------------------------------------------------

    *\GG\ However, see supra n. 1.
---------------------------------------------------------------------------

    1. Cal. Health & Safety Code Sec.  11153(a), requiring that a 
``prescription for a controlled substance shall only be issued for a 
legitimate medical purpose by an individual practitioner acting in the 
usual course of his or her professional practice'';
    2. Cal. Health & Safety Code Sec.  11154(a), directing that ``no 
person shall knowingly prescribe, administer, dispense, or furnish a 
controlled substance to or for any person . . . not under his or her 
treatment for a pathology or condition . . .'';
    3. Cal. Bus. & Prof. Code Sec.  2242, prohibiting the 
``[p]rescribing, dispensing, or furnishing [of controlled substances] . 
. . without an appropriate prior examination and a medical 
indication,'' the violation of which constitutes unprofessional 
conduct;
    4. Cal. Bus. & Prof. Code Sec.  2234, defining unprofessional 
conduct to include: ``[g]ross negligence''; ``[r]epeated negligent 
acts''; ``[i]ncompetence''; or ``[t]he commission of any act involving 
dishonesty or corruption that is substantially related to the 
qualifications, functions, or duties of a physician and surgeon''; and
    5. Cal. Bus. & Prof. Code Sec.  725, further defining 
unprofessional conduct to include ``[r]epeated acts of clearly 
excessive prescribing, furnishing, dispensing, or administering of 
drugs. . . .''

ALJ Ex. 1.

Allegations Common to Multiple Patients

    There were allegations common to many or all of the subject 
patients. They will be discussed here generally. They may be discussed 
in detail in the context of the particular patients as well, and as 
needed.

[[Page 30591]]

Failure To Maintain Accurate and Complete Patient Charts

    There was a recurring theme throughout the Respondent's patient 
files that he failed to maintain accurate and complete patient charts. 
This failing itself is contrary to the ``Guide to the Laws Governing 
the Practice of Medicine by Physicians and Surgeons,'' Medical Board of 
California, 7th ed. 2013, which requires the practitioner to ``keep 
accurate and complete records, including but not limited to, records of 
the patient's medical history, physical examinations of the patient, 
the treatment plan objectives and the treatments given, and the 
rationale for any changes in treatment.'' Id. at 59. Not surprisingly, 
the failure to maintain accurate and complete patient records itself is 
outside the usual course of professional practice and represents a 
violation of the California standard of care.
    Dr. Munzing also explained that this failure in documentation 
rendered any resulting treatment or diagnosis unjustified and 
inappropriate. Tr. 241-44. Without an appropriate diagnosis that is 
justified by the documentation, there is no legitimate medical purpose 
for the controlled substance prescriptions. Tr. 172, 207, 241-44.
    The Respondent conceded repeatedly that matters allegedly discussed 
with the patients, information gathered from them, evaluation of 
treatment plans and changes in treatment, and determinations regarding 
treatment, were not recorded in the patient chart.\21\ He gave various 
reasons for not documenting the missing information, including his 41-
years of clinical experience, his busy practice, and his practice of 
maintaining paper records, which prevents the degree of detail 
permitted by electronic record-keeping, and results in him keeping his 
notes as brief as possible and only recording the ``main ideas.'' Tr. 
809. The Respondent conceded that ``maybe'' it was ``inappropriate'' of 
him not to more thoroughly detail this information in the charts. Tr. 
809. But with handwritten charts, he claimed that he was only able to 
include the ``main ideas.'' His notes are simply to remind him of the 
matters in the future, so he keeps his notes as brief as possible. Tr. 
810-11, 815. Finally, he defended his limited documentation by claiming 
that more was unnecessary due to his photographic memory.\22\ Although 
the Respondent sometimes displayed a seemingly extraordinary 
memory,\23\ it was not always infallible. [See infra Credibility 
Analysis of the Respondent. Consistent with Dr. Munzing's opinions, the 
Respondent misperceives the purpose of these medical records. Not only 
do medical records remind the treating practitioner of the basis and 
ongoing treatment strategy; they also provide an accurate history of 
symptoms, ongoing treatment and medication protocol for other 
practitioners who may treat the patient in the future. Tr. 917.]
---------------------------------------------------------------------------

    \21\ For example, the Respondent conceded he did not document 
the rationale for the change in medication for J.M. and K.S. Tr. 
885. On February 2, 2017, the Respondent prescribed Soma to S.B. Tr. 
875; GX 1 at 59. By March 1, 2017, Soma had been discontinued, yet 
the chart reflected no rationale for that change in medication 
regimen. Tr. 876-77. As the Respondent varied his prescribing 
between Soma and Xanax, he conceded he did not document the reason 
for the variation in medication. Tr. 878-83. Similarly, the 
Respondent conceded he did not document pain level, function level 
and quality of life in the seven charged patients. Tr. 885-87; GX 20 
at 61. Although the Respondent testified he developed a treatment 
plan for each of his patients, the Government pointed out S.B.'s 
treatment plan and objectives were not documented in her chart. Tr. 
813-14.
    \22\ The list of prior therapies was not in his progress notes. 
Tr. 805-06, 808. The Respondent explained its absence by stating 
that maybe he did not feel it was crucial to document them, because 
he memorizes what the patient tells him. Tr. 806. Respondent thought 
the documentation did not need to include references to prior, 
concluded treatment, because the patient had moved on to the new 
treatment. Tr. 807-08. The Respondent testified to S.B.'s prior 
treatment from memory. Tr. 808. [Some footnote text was omitted for 
brevity, and other portions were moved to the body of the discussion 
or to other footnotes where the information was more pertinent.]
    \23\ The Respondent could not remember if J.C. mentioned his 
prior surgeries at the first or second visit (in 2009). Tr. 840. The 
Respondent added that he probably prescribed Valium to J.C., as 
well, explaining he was remembering from 13 years ago. Tr. 850. The 
Respondent added that he may have also prescribed Xanax to K.S., but 
it is difficult to be sure with hundreds of patients and treatment 
dating back 15 years. Tr. 859. M.B. had physical therapy, and 
perhaps acupuncture, but the Respondent could not quite remember. 
Tr. 827. Even with a good memory, Respondent admitted that sometimes 
the he may just miss something. Tr. 859.
---------------------------------------------------------------------------

    Moreover, as the Respondent indicated he was essentially testifying 
from memory regarding appointments and treatment from sometimes up to 
fourteen years ago, the Government was permitted to test the 
Respondent's memory. The Respondent's memory may not be as good as he 
believes.\24\ [See infra Credibility Analysis of the Respondent.] Of 
course, even the extraordinary memory of the Respondent will not help 
another practitioner who may treat one of the Respondent's patients and 
expect to rely on the Respondent's chart.
---------------------------------------------------------------------------

    \24\ The Government sought to test the Respondent's memory by 
asking to confirm that, consistent with his direct testimony, he 
only treated S.B. with hydrocodone, Xanax and Adderall. Tr. 810-13. 
The Respondent confirmed his direct testimony. Tr. 812. The 
Government reminded the Respondent that he prescribed Soma as well. 
Tr. 813. Although the Respondent testified he did not introduce any 
of his subject patients to controlled substances, the chart reflects 
he did prescribe Soma to S.B. for the first time. Tr. 816-17; GX 1 
at 61, 62. The Respondent remembered during cross-examination that, 
although not in the chart, S.B. told him she had been on Soma 
previously. Tr. 817-19.
---------------------------------------------------------------------------

    Respondent's belief that all of the necessary patient information 
was accurately kept in his mind is no justification for Respondent's 
failure to maintain accurate and complete patient files. I find the 
Respondent violated the California professional standards and standard 
of care by failing to maintain complete and accurate medical charts as 
to each of the subject patients.*\HH\
---------------------------------------------------------------------------

    *\HH\ Sentence modified for clarity.
---------------------------------------------------------------------------

    In his Post-hearing Brief (PHB), the Respondent argues that Dr. 
Munzing's assertions that the deficient medical charts demonstrate 
treatment outside the standard of care is faulty, as Dr. Munzing failed 
to speak with the subject patients to determine if the prescriptions 
were justified. Only then, he argues, could Dr. Munzing convincingly 
opine regarding whether the actual treatment was consistent with the 
standard of care. The Respondent misses the point. Although certainly 
the extent of Dr. Munzing's review of relevant material is normally 
critical to the conclusions he draws, the focus of Dr. Munzing's 
opinions relate to whether the Respondent complied with his obligations 
under the standard of care prior to prescribing the subject 
medications, and documentation was part of his obligation. It is 
neither here nor there that Dr. Munzing could have resolved his own 
concerns regarding the subject prescriptions by speaking to the 
patients years later. Nor is it dispositive that Dr. Munzing might have 
determined, through his own investigation, that the prescriptions were 
justified at the time they were issued [but for the documentation 
failures.] The Respondent failed to satisfy his obligations, which 
include obligations to accurately document, at the time the 
prescriptions were issued. Accordingly, I do not view the fact that Dr. 
Munzing did not speak with the subject patients as diminishing the 
probity of his relevant opinions as to the Respondent's acts or 
omissions, at all. The instant evaluation relates to whether the 
Respondent provided appropriate controlled substance prescriptions on 
the basis of the information developed by the Respondent prior to 
issuing the prescriptions.
    Although the Respondent argues in his PHB that he testified 
credibly that he fully complied with his obligations

[[Page 30592]]

under the standard of care, the Respondent was not fully credible as 
detailed in my credibility analysis of the Respondent. In the 
Government's Supplemental Pre-hearing Statement (GSPHS), the Government 
argues that the failure to document procedures or findings within the 
chart justifies a finding that the procedures, evaluation or findings 
did not occur. On the basis of the instant record, I concur. I further 
adopt Dr. Munzing's conclusions that without sufficient documentation 
of procedures or evaluation required by the standard of care, resulting 
diagnoses are deemed inappropriate, there is no legitimate medical 
purpose established for treatment and any resulting controlled 
substance prescriptions were outside the usual course of professional 
practice. [I have discussed this further infra at Factors Two and 
Four.]

Patients Were Left on Their Original Medication Protocols Despite Being 
Prescribed High MME and Dangerous Combinations

    Patients were permitted to remain on the medications and dosages 
they were previously prescribed if the Respondent found them to be 
doing well, that their pain level was low enough that they could work 
full time, and they could complete their ADLs. [Respondent testified, 
``[i]f the patient tells me, ``Look, I've already been with pain 
specialists; I've already seen a couple of specialists; I already had 
three-four MRIs; I already had surgery; I'm on this medication for 
years, and it's working for me,'' then it comes down to one of two 
options. Either I tell him I will fill his prescription or I kick him 
out of my office. And I don't think it is ethical to do that latter 
approach.'' Tr. 651.] This was the case even with patients at dangerous 
levels of medication and in dangerous combinations that are known to be 
popular for abuse and diversion. [Interestingly, despite Dr. Munzing's 
consistent testimony supported by CDC guidance and a FDA black box 
warning, Respondent testified that the prescribed combination of an 
opiate, muscle relaxant, and benzodiazepine, when ``used in the right 
dosages for the right indications, and used as prescribed by a 
knowledgeable M.D., . . . are safe to use in combination therapy.'' Tr. 
797.]
    The Respondent maintained this laissez faire attitude despite being 
confronted with significant red flags suggesting that his patients 
could have been abusing and/or diverting.\25\ Even patients the 
Respondent acknowledged as opioid dependent and refusing detox were 
continued on these dangerous medications and combinations without even 
UDS monitoring.\26\ In fact, the Respondent treated opioid dependence 
with opioids, which is clearly outside the California standard of care. 
In fact, Dr. Munzing testified that it is illegal in California. Tr. 
267-68, 306, 398-400. The Respondent failed to make any attempt at 
titration, even for patients who attempted to titrate on their own and 
who skipped pain medication when they could tolerate it. As Dr. Munzing 
observed, the standard of care would require an attempt at titration.
---------------------------------------------------------------------------

    \25\ For example, S.B. reported to Dr. F. that she was not then 
taking any medication for pain, which is contrary to the 
Respondent's medical records and prescription evidence. Tr. 231-32. 
Also, CURES records disclosed his patients were being prescribed 
Suboxone by another physician.
    \26\ See Holloway Distrib., 72 FR 42118, 42124 (2007) (a policy 
of ``see no evil, hear no evil'' is fundamentally inconsistent with 
the obligations of a DEA registrant). Agency precedent has long 
recognized that ``[l]egally, there is absolutely no difference 
between the sale of an illicit drug on the street and the illicit 
dispensing of a licit drug by means of a physician's prescription.'' 
EZRX, L.L.C., 69 FR 63178, 63181 (1988); Floyd A. Santner, M.D., 55 
FR 37581 (1988); Michael J. Aruta, M.D., 76 FR 19420, 19434 (2011).
---------------------------------------------------------------------------

    I find the Respondent's failures to sufficiently monitor, and to 
attempt titration from dangerous levels of medication and in dangerous 
combinations were outside the California standard of care.

Discussion as to Patient S.B.*II
---------------------------------------------------------------------------

    *\II\ The RD included an extensive write up of the OSC's 
allegations pertaining to each of the seven individuals at issue 
prior to discussing each individual. The allegations are set forth 
clearly in the OSC, see ALJX 1, and are summarized above; therefore, 
for brevity, I have omitted each of the seven sections outlining the 
allegations pertaining to each of the seven individuals.
---------------------------------------------------------------------------

    As per the parties' stipulations, between February 2, 2017, and 
January 30, 2019, S.B. was prescribed hydrocodone, carisoprodol, 
Adderall and alprazolam. Tr. 162-63; GDX 1. Patient S.B. remains a 
patient of Dr. Rabadi. Tr. 708-09.*\JJ\ Dr. Rabadi believed his 
prescription practice concerning S.B. was within the California 
standard of care. Tr. 709. Dr. Rabadi began his treatment of S.B. on 
August 3, 2016. Tr. 718. She presented as a 29 year-old female with 
ongoing conditions of GAD, fibromyalgia and ADD. Tr. 719. Dr. Rabadi 
noted that patients with ADD are six times more likely to have other 
psychiatric conditions as people without ADD. Ultimately, Dr. Rabadi 
concurred with the previous physician's diagnoses of ADD, GAD, and 
fibromyalgia. Tr. 724, 728.
---------------------------------------------------------------------------

    *\JJ\ Text omitted for brevity and clarity.
---------------------------------------------------------------------------

    Respondent testified that, as per his policy, he took a complete 
history. Tr. 719-20. He testified that he performed a complete physical 
exam, reviewed her existing diagnoses of GAD and ADD, and her 
medication history in general, and specifically for those diagnoses. 
Tr. 720, 722-24. He testified, [from memory,] that he obtained her pain 
level with and without medication. Without medication her subjective 
pain level was eight. With medication, it was one to two, which 
permitted her to function and perform daily activities. Tr. 721. [In 
summary, Respondent testified that he did everything required by the 
California standard of care, except ``maybe'' it was ``inappropriate'' 
of him to not more thoroughly document the details in the charts. Tr. 
809.]
    Dr. Munzing disagreed with Respondent and characterized the 
controlled substance prescriptions as being issued outside the standard 
of care. Tr. 163, 207, 241-44. For S.B.'s initial visit on August 3, 
2016, she was diagnosed with GAD, ADD, and fibromyalgia. Tr. 163-65; 
GX1 at 62, 66. However, there was no supporting findings or history for 
the fibromyalgia diagnosis, which typically is reached after a certain 
number of tender points are determined. Tr. 166. Similarly, there was 
no supporting findings or history to support the GAD or ADD diagnoses. 
Tr. 166-71, 241-44. There is no physical functioning level documented 
nor mental functioning level. Tr. 171. Without sufficient evaluation 
and supporting documentation for the three diagnoses, Dr. Munzing 
deemed the diagnoses inappropriate. Tr. 241-44. Without an appropriate 
diagnosis, there is no legitimate medical purpose for the controlled 
substance prescriptions. Tr. 172, 207, 241-44. The Respondent conceded 
that the detailed findings of the complete physical exam are not 
reflected in his chart, but noted he was a clinician with 41-years of 
experience, and not a medical student. Tr. 810.
    In accordance with Dr. Munzing's credible and unrebutted expert 
testimony, the Respondent misperceives the purpose of these medical 
records. The documentation is necessary without regard to the skill 
level of the treating practitioner. It reminds the treating 
practitioner of the basis and ongoing treatment strategy. It also 
provides an accurate history of symptoms, ongoing treatment and 
medication protocol for other practitioners who may treat the patient 
in the future.
    Dr. Munzing highlights that there is no documented treatment plan 
for this patient. Tr. 241-44. On February 2, 2017, S.B. presented to 
the clinic suffering from fibromyalgia and ADD. Tr. 173; GX 1 at 59. 
The Respondent diagnosed her with fibromyalgia-opioid

[[Page 30593]]

dependent, refusing detox, and ADD. He prescribed hydrocodone, 
carisoprodol, and Adderall. Tr. 173-74. Again, there was no medical 
history justifying the diagnoses. The physical exam conducted on 
February 2, 2017, consisted of blood pressure, cardiovascular, heart 
and lung, which were normal, which is insufficient to justify the 
fibromyalgia and ADD diagnosis. Tr. 175. There was no documentation of 
the pain level, or functionality level, to justify continued controlled 
substance prescribing. Tr. 175-76. For the progress note dated June 28, 
2017, the Respondent diagnosed her with fibromyalgia-opioid dependent, 
refusing detox, and ADD. He prescribed hydrocodone, carisoprodol, and 
Adderall. Tr. 177. Again, there was no medical history justifying the 
diagnoses. There was no documentation of the pain level, or 
functionality level, to justify continued controlled substance 
prescribing. Tr. 177-78; GX 1 at 57. Again, only blood pressure, heart, 
and lung exams were performed. Tr. 177. There was insufficient medical 
evidence to justify the three diagnoses. Tr. 177-78. For the progress 
note dated December 21, 2018, S.B. presented with eczema and 
fibromyalgia. Tr. 179; GX 1 at 49. The Respondent diagnosed her with 
Fibromyalgia-opioid dependent, refusing detox. She was prescribed 
hydrocodone. No history was recorded. Again, only blood pressure, 
heart, and lung exams were performed. Tr. 180. There was no 
documentation of the pain level, or functionality level, to justify 
continued controlled substance prescribing. Tr. 180. There was 
insufficient medical evidence to justify the fibromyalgia diagnosis. 
Tr. 181. In the progress notes for January 30, 2019, S.B. reported to 
the clinic with ADD and rhinitis. Tr. 181; GX1 at 47. She was 
prescribed Adderall for the ADD. No medical history was taken. ADD 
patient progress was reported as ``stable.'' There was insufficient 
medical evidence to justify the ADD diagnosis. Tr. 183. Dr. Munzing 
deemed the ADD diagnoses inappropriate. Without an appropriate 
diagnosis, there is no legitimate medical purpose for the controlled 
substance prescription. Tr. 185-86.
    During the subject period of the Respondent's treatment of S.B., he 
never obtained any prior medical records. Tr. 184. He never recorded a 
history, which would justify his diagnoses for fibromyalgia, GAD or 
ADD. He never reported a sufficient physical or mental exam to justify 
the fibromyalgia, GAD or ADD diagnoses. He never reported a sufficient 
evaluation to justify his diagnoses for fibromyalgia, GAD or ADD. Tr. 
184-85. The controlled substance prescriptions for S.B. were not issued 
within the California standard of care, nor were they issued within the 
usual course of professional practice. Tr. 187, 244.
    Dr. Munzing observed that the diagnoses would come and go in the 
records and were inconsistently reported, which is atypical for chronic 
diagnoses. Tr. 188-97. A chronic disease with symptoms which appear to 
come and go would question whether the patient had the disease at all. 
Tr. 192. Even a lessening of symptoms should cause evaluation of 
whether tapering of medication was appropriate. Tr. 196.
    Dr. Munzing noted that the Respondent prescribed S.B. both 
hydrocodone and Soma to treat fibromyalgia on numerous occasions. Tr. 
197-98. On other occasions he prescribed hydrocodone alone without any 
explanation for changing the medication protocol, which was beneath the 
California standard of care for documentation. Tr. 198-201; GX 20 at 
61. Dr. Munzing noted that S.B. was on a dangerous, highly addictive, 
combination of medications that was popular for abuse, namely 
hydrocodone and Soma, which are respiratory depressants, combined with 
Adderall. Tr. 202. Another dangerous combination, hydrocodone, Adderall 
and Xanax, was prescribed on March 1, 2017, in April 2017, and June 
2017. Tr. 203; GDX 1. Dr. Munzing noted it is referred to by drug 
abusers as the ``new Holy Trinity.'' Tr. 204. It includes the 
depressants, hydrocodone and Soma, and is followed by the stimulant, 
Adderall, to counteract the effects of the depressants. Again, the 
combination of hydrocodone and Soma are the subject of the FDA ``black 
box'' warning. Tr. 205. The high dosage of Xanax, 6 mg per day, 
heightens the risk of this already dangerous combination. With Xanax 
and Adderall prescribed at their highest commercially available dosage 
units, the danger and risk of addiction are further increased. Tr. 205. 
Additionally, two mg tablets of Xanax are popular for abuse and 
diversion. Tr. 217-18. On September 29, 2017, and monthly from July 
2018, to July, 2019, S.B. was prescribed hydrocodone and Adderall. 
Besides the serious risk of addiction posed by these two Schedule II 
medications, the hydrocodone was prescribed at a high daily dosage of 
60 mg MME, which significantly increases the risk of overdose and 
death. This risk was increased by its combination with Adderall. Tr. 
206-07. Dr. Munzing could not foresee a medical condition for which 
this combination would be appropriate. Tr. 211-12.
    The Respondent defended his keeping S.B. on this medication 
protocol, noting that if the Respondent objected to every patient's 
choice of treatment, there would be no medical care. If a patient says 
they are on medication and it permits them to function, the Respondent 
will continue that treatment. Tr. 729-30. Respondent, [based on his 
memory alone,] testified that S.B. indicated she had been through 
several alternate treatments, including, occupational therapy, physical 
therapy, hydrotherapy, yoga and meditation. Tr. 731, 805.
    Respondent, [testifying from memory,] said S.B. further reported 
that she had been on the same dosage of medications for several years 
to good effect. Tr. 731-32. To reduce her from those dosages would have 
to be done gradually, lest the patient have withdrawal symptoms or 
suffer severe pain. Tr. 732. Prior to each prescription, the Respondent 
testified that he discussed side effects, and changes in status. Tr. 
733. However, the record discloses that the patient was not always 
taking the medications as prescribed. There were a number of notations 
that the patient refused detox.
    The Respondent misperceives his role as an independent 
practitioner. In accordance with Dr. Munzing's testimony, Respondent 
has a responsibility to independently determine the course of 
treatment, even in patients he inherits from other prescribers. 
Completely deferring to his patients' wishes in determining appropriate 
treatment is contrary to his role within the California standard of 
care. He concedes titration would have to be done gradually. However, 
he kept this patient on high levels of dangerous medication, in 
dangerous combinations, for two years, without attempting titration. 
This [prescribing] is below the California standard of care. The 
Respondent's failure to obtain prior medical records and failure to 
document the patient's history, and to even order a single UDS, is 
consistent with this relinquishment of his responsibility to 
independently evaluate and to monitor the patient's condition and to 
develop an appropriate treatment plan.
    The Respondent explained his process to obtain informed consent to 
prescribe controlled substances to S.B. The Respondent executed the 
``pain management contract,'' which is documented in the record. Tr. 
728-29. The patient reads it and signs it. The Respondent testified 
that he then goes over the contract in detail with the patient. The 
Respondent testified that

[[Page 30594]]

he then explains that the medications are meant to help the patient, 
not to cause side effects or addiction, although they tend to cause 
chemical dependence. Tr. 729. The Respondent testified that he then 
goes over all the alternative treatments, but in the end, it is the 
patient's decision as to the treatment he will receive. Tr. 729.
    Dr. Munzing noted that the medical records failed to disclose any 
indication that the Respondent warned S.B. regarding the risks 
associated with these dangerous combinations of medications. This 
failure precludes any informed consent by S.B. Tr. 207. The Declaration 
of Pain Medication Use document in the file, dated August 3, 2016, 
which requires the patient to alert the Respondent if the patient takes 
additional medications that could result in drug interactions, does not 
put the patient on notice of the dangerous combinations prescribed by 
the Respondent. Tr. 207-10; GX 1 at 67. Similarly, Dr. Munzing noted 
the repeated notation within the patient records of ``SED,'' which Dr. 
Munzing assumed meant, ``side effects discussed,'' was insufficient 
documentation within the standard of care to document discussion of the 
various risks of these medication combinations. Tr. 210-11; GX 1 at 59.
    I agree with Dr. Munzing's assessment that, on the basis of the 
above lapses, the Respondent failed to obtain informed consent under 
the California standard. The Respondent's failure to document the 
details of his informed consent process itself renders his process 
below the California standard of care.
    In March, April, and June of 2017, the Respondent prescribed S.B. 
Xanax at 6 mg per day, in excess of the FDA recommended daily limit of 
4 mg per day. Tr. 212-15; GX 1 at 57, 58, 59; GX 22 at 40, 59-61. In 
May of 2017, the Xanax was abruptly stopped, Tr. 216-17; GDX 1, and 
abruptly restarted in June of 2017, and again stopped, Tr. 217. 
According to Dr. Munzing, this was very dangerous as the abrupt 
stoppage of Xanax, especially at this high dosage, can cause seizures, 
and restarting at this high dosage can trigger an overdose, especially 
in conjunction with the prescribed opioid. Tr. 212-18.
    Regarding the monitoring of S.B., there were no urine drug screens 
evident in the records, which Dr. Munzing testified the standard of 
care would have required at least quarterly. Tr. 218-21; GX 1 at 44. In 
the progress notes for February, March, April 2017, all the way to 
January 30, 2019, the Respondent noted ``refusal to detox.'' Tr. 220-
21, 227-29; GX 1 at 58, 59. According to Dr. Munzing, this is a huge 
red flag for opioid use disorder and for diversion. However, the chart 
suggests the Respondent did not take any necessary action, such as 
CURES monitoring, UDS, counseling, or titration. Rather, he simply 
prescribed the same levels of medications she was on, PRN. Tr. 222-23. 
The Respondent's course of action was outside the California standard 
of care. Tr. 223, 229.
    In a June 2017 report from Dr. F., an orthopedic surgeon who saw 
S.B. for reported neck and back pain, S.B. reported her past medical 
history as only ``anxiety.'' Tr. 229; GX 1, p. 30, 32, 36-42, 56. She 
did not report fibromyalgia, ADD or GAD. Tr. 229-30. S.B. further 
reported to Dr. F. that she was not then taking any medication for 
pain, which is contrary to the Respondent's medical records and 
prescription evidence. Tr. 231-32. Dr. F.'s report was part of S.B.'s 
disability application, claiming disability as of June 15, 2017. A 
report from Chiropractor, Dr. B.H. is included in the disability 
packet. Tr. 235. Dr. B.H. reports the disability was caused by 
``accident or trauma,'' which is inconsistent with what the patient 
reported to Dr. F. and to the Respondent. Tr. 236. There is no 
indication in the Respondent's records for S.B. that he ever discussed, 
with S.B. or with Dr. F., the discrepancies revealed by Dr. F.'s 
report. Tr. 233-37.
    Contemporaneous to the preparation of the disability claim, Dr. 
Rabadi ordered a series of radiologic tests for S.B., none of which 
were related to the Respondent's diagnosis of fibromyalgia. The 
progress notes from August 17, 2017, state that S.B. presented with 
``overactive thyroid, gait disturbance.'' Tr. 237-40; GX 1 at 5, 7, 9, 
11, 13, 16, 17, 56. Respondent ordered an MRI of the brain to rule out 
MS, a thyroid ultrasound to rule out hyperthyroidism, an MRI of the 
lumbar spine, and an MRI of the thoracic spine. The MRI of the cervical 
spine was ordered by Dr. F. Tr. 241. In the context of S.B.'s 
disability claim, the Respondent ordered a series of tests in support 
of the disability claim, but neglected to order any tests related to 
the fibromyalgia, for which the Respondent was treating S.B. According 
to Dr. Munzing, this further calls the Respondent's [prescribing for 
fibromyalgia] into question.
    I find, as alleged, that the Respondent's controlled substance 
prescriptions to Patient S.B. from at least February 2, 2017, through 
January 30, 2019, were not issued ``for a legitimate medical purpose by 
an individual practitioner acting in the usual course of his 
professional practice''; [they were issued outside the usual course of 
professional practice and beneath the standard of care in violation of 
21 CFR 1306.04(a).]

Discussion as to Patient M.B.

    The Respondent testified that Patient M.B. presented on April 19, 
2006, with severe back pain, left knee pain, and history of 
dyslipidemia. Tr. 782. The Respondent testified that he obtained a full 
medical history, medication history, pain level, and performed a 
complete head to toe physical exam. Tr. 783. The Respondent claimed 
that M.B. had chronic back pain related to an injury, a knee injury, 
which was manageable, and dyslipidemia. Tr. 784. Although the 
Respondent maintains he obtained a complete medical history as to the 
back pain, and chronic knee pain, he concedes it is not detailed in the 
chart. Tr. 820-23. M.B. was already on hydrocodone, previously 
prescribed, when he first saw the Respondent. The Respondent testified 
that he obtained informed consent in the same manner as described for 
his earlier patients. Tr. 784. [Testifying from memory alone,] 
Respondent said he discussed alternative forms of treatment with M.B., 
however M.B. had exhausted those. Respondent testified that M.B. had 
physical therapy, and perhaps acupuncture, but the Respondent could not 
quite remember. Tr. 827. The Respondent conceded he did not document 
these therapies in the chart. Tr. 828.
    Dr. Munzing observed that between January 5, 2018, and November 20, 
2019, the Respondent prescribed hydrocodone and Adderall. Tr. 245. As 
with patient S.B., Dr. Munzing characterized the patient file as 
meager. Tr. 245-47. The Respondent never obtained prior medical records 
of M.B. Tr. 288. Dr. Munzing observed that none of the subject 
prescriptions were within the California standard of care. Tr. 248, 
289. On April 19, 2006, M.B. presented for his first visit. Tr. 248-49; 
GX 3 at 88, 91. In his ``Comprehensive History and Physical 
Examination,'' the Respondent reported that M.B. presented with 
symptoms of ``chronic back pain, left knee pain, dyslipidemia.'' Tr. 
249-50. However, there are no diagnoses relating to the back and knee 
pain. Tr. 250-51, 258. To address the reported pain, the Respondent 
prescribed hydrocodone. Tr. 252. The file fails to evidence sufficient 
history to justify the pain prescriptions under the standard of care. 
Tr. 252-54. The file fails to evidence any physical exam to justify the 
pain prescriptions under the standard of care. Tr. 254-55, 258, 287. 
The file fails to evidence any treatment plan or goals,

[[Page 30595]]

past drug abuse to justify the pain prescriptions under the standard of 
care. Tr. 254-55, 258, 287. Although M.B. declared on a ``Declaration 
of Pain medication Use'' form that he had no prior drug abuse in August 
2009, which was three years after his first visit, such static 
declaration does not satisfy the physician's ongoing responsibility 
under the standard of care to monitor this issue. Tr. 259-61; GX 3 at 
93.
    On July 9, 2013, M.B. presented with ADD and neck pain. Tr. 261-62; 
GX 3 at 46. He was prescribed Adderall for the ADD. Tr. 262. Again, the 
records reveal there was no history taken to support the diagnosis or 
prescriptions for Adderall. Tr. 262. There was no evident evaluation 
done by the Respondent. Tr. 287. There was no treatment plan. Tr. 263. 
Although there was a written diagnosis related to the neck pain, there 
was no history or physical exam evident in the file to support it. Tr. 
263-64. The Respondent never established a legitimate medical purpose 
for hydrocodone. Tr. 264. On September 6, 2013, M.B. presented with 
ADD. Tr. 264-65; GX 3 at 46. He was prescribed Adderall for the ADD, 
but at double the dosage of the previous visit, yet without any 
reported justification. Tr. 264-65. On January 5, 2018, M.B. presented 
to the clinic. Tr. 265-66; GX 3 at 37. He was prescribed hydrocodone 
and Adderall. There was no medical history, no discussion of M.B.'s 
response to treatment, evaluation of pain or functioning, substance 
abuse history, diagnoses, or rationale for establishing a legitimate 
medical purpose to justify continuing the medication regimen. Tr. 265-
66. On March 6, 2018, M.B. presented to the clinic with ``ADD and 
opioid dependency.'' Tr. 266-67; GX 3 at 36. Absent was any report of 
pain. He was diagnosed with ``Opioid dependency, refusing detox.'' Tr. 
267. Hydrocodone as treatment for opioid dependency is not a legitimate 
medical purpose and is outside the usual course of professional 
practice. Tr. 267-68. Dr. Munzing observed that the Respondent 
prescribed hydrocodone repeatedly to address his diagnosis of opioid 
dependency until November 20, 2019. Tr. 268-69. On November 20, 2019, 
M.B. presented with ADD and back pain. Tr. 269; GX 3 at 27. He was 
prescribed Adderall and his hydrocodone was increased. Tr. 270. No 
medical history was taken or updated. No response to treatment or 
patient functionality was included. Although vital signs were taken, no 
physical exam was performed. Tr. 270-71. There was no appropriate 
diagnosis for the back pain. Tr. 272. There was no evaluation for ADD, 
such as mental functioning. Tr. 271, 274, 287-88. The Respondent never 
obtained a sufficient history to support the diagnosis for ADD. Tr. 
273. There was no appropriate diagnosis for ADD. Tr. 272. The 
Respondent never established a legitimate medical purpose to prescribe 
either hydrocodone or Adderall to M.B. throughout the reported 
treatment. Tr. 274. Such prescriptions were not in the usual course of 
professional practice, were not for a legitimate medical purpose, and 
were outside the standard of care. Tr. 274-75.
    Dr. Munzing noted the inconsistency of the various diagnoses. 
Diagnoses would come and go within the records. Tr. 275-278; GX 3 at 
35, 37, 43, 67. Although the reported pain was always treated with 
hydrocodone, the source of the pain varied greatly without any 
explanation in the file, as required by the standard of care. Tr. 278-
80.
    Dr. Munzing noted the serious dangers occasioned by the combination 
of Adderall and hydrocodone, by reference to his testimony regarding 
S.B.'s similar prescriptions.\27\ Tr. 281. Dr. Munzing deemed this 
combination of medications for over ten years inappropriate and unsafe. 
Tr. 284. The only semblance of a warning to M.B. regarding these 
dangerous combinations appeared in a 2009 ``Controlled Substance 
Therapy Agreement.'' For the same reasons voiced as to Patient S.B., 
Dr. Munzing deemed the signed form wholly insufficient to satisfy the 
California standard of care in this regard. Tr. 281-82; GX 3 at 92. 
Similarly, the notation within the file, ``SED'' was insufficient to 
satisfy the standard of care. Tr. 283. There was never a UDS ordered 
for M.B., which is necessary under the standard of care for any patient 
receiving opioids, but especially for a patient who has refused opioid 
detox. Tr. 284-85. A patient diagnosed with opioid dependency and 
refusing detox is also a red flag of abuse and diversion. Such red flag 
was not addressed by the Respondent repeatedly as to M.B. Tr. 285-87; 
GX 3 at 36.
---------------------------------------------------------------------------

    \27\ On September 29, 2017, and monthly from July 2018, to July, 
2019, S.B. was prescribed hydrocodone and Adderall. Besides the 
serious risk of addiction posed by these two Schedule II 
medications, the hydrocodone was prescribed at a daily dosage of 60 
mg MME, which significantly increases the risk of overdose and 
death. This risk was increased by its combination with Adderall. Tr. 
206-07. Dr. Munzing could not foresee a medical condition in which 
this combination would be appropriate. Tr. 211-12.
---------------------------------------------------------------------------

    The Respondent defended his treatment of M.B. by noting that he 
monitored M.B. throughout his treatment. Tr. 785. The Respondent 
believed his prescribing was justified on the basis of M.B.'s medical 
conditions, level of chronic pain and present level of functioning, 
working in a welding factory, and in the movie business. Tr. 786, 832. 
The Respondent conceded that he did not document M.B.'s degree of pain 
and he minimized the value of the subjective pain scale. Tr. 823-24. 
The Respondent conceded there were no imaging reports in M.B.'s chart, 
but explained that these patients were from the movie business. They 
were treated by an HMO, from which it is almost impossible to obtain 
records. Tr. 829.
    [While it may be] true that the Respondent [did some] monitoring of 
M.B. during treatment, not all this monitoring found its way into 
M.B.'s chart. Alarming evidence revealed the Respondent was or should 
have been aware that M.B. was receiving Suboxone from Dr. B.S. during 
the period the Respondent was prescribing high levels of dangerous 
medications and in dangerous combinations. DI identified GX 25, which 
is a CURES Audit Report run on the DEA Registration of Dr. B.S., which 
included the patient M.B., a patient common to the Respondent. Tr. 904. 
Between October 10, 2018, and September 11, 2020, Dr. B.S. prescribed 
Suboxone \28\ to M.B. Tr. 909; GX 24, 25, 25B. On March 15, 2019, the 
Respondent accessed CURES and would have observed M.B. was receiving 
Suboxone from Dr. B.S. Tr. 910; GX 24. Despite having evidence of the 
Suboxone prescriptions, the Respondent continued prescribing these 
dangerous medications, and like his other patients, without any UDS.
---------------------------------------------------------------------------

    \28\ Buprenorphine.
---------------------------------------------------------------------------

    I find, as alleged, that the Respondent's controlled substance 
prescriptions to Patient M.B. from at least January 5, 2018, through 
November 2019, were not issued ``for a legitimate medical purpose by an 
individual practitioner acting in the usual course of his professional 
practice''; [they were issued outside the usual course of professional 
practice and beneath the standard of care in violation of 21 CFR 
1306.04(a).]

Discussion as to Patient B.C.

    The Respondent explained his treatment of Patient B.C. He has been 
a patient of the Respondent since March 27, 2014. Tr. 750-51. Patient 
B.C. has been prescribed hydrocodone, Xanax and Adderall. Tr. 749. The 
Respondent testified that he obtained a complete history, a complete 
physical exam and then probed the complaint which brought him to the 
Respondent, which was right shoulder and chronic back

[[Page 30596]]

pain. Tr. 751. [Based on his memory alone, Respondent testified that] 
without medication, B.C. reported pain at seven or eight; and with 
medication, the pain was one or two. Tr. 752. As far as his medication 
history, [Respondent testified based on his memory that] B.C. had been 
on pain medication for years following a neurosurgical procedure to 
treat a herniated disc with radiculopathy.\29\ Tr. 752.
---------------------------------------------------------------------------

    \29\ [Repeated text omitted for brevity.]
---------------------------------------------------------------------------

    To obtain informed consent, the Respondent testified that he 
verbally discussed the pain management contract, which B.C. read and 
signed. Tr. 752-53. The Respondent then discussed side effects of the 
medication. B.C. is a married man with three children. He works full 
time. He gave the Respondent no indication he was a risk of diversion. 
Tr. 753. Regarding prior alternate treatment, [Respondent testified 
from memory that] B.C. reported that he had tried surgery, physical 
therapy and acupuncture, but that only pain medication therapy 
alleviates his pain to the extent he can function. Tr. 754. At each 
visit, the Respondent reviewed B.C.'s progress and believed B.C.'s 
condition warranted the medication he was prescribed. Tr. 754, 757. 
Although the Respondent testified that he remembered discussing B.C.'s 
pain levels on March 27, 2014, which was a one or two on medication, he 
conceded it was not documented in the chart. Tr. 832-34; GX 5 at 48. 
Although the Respondent testified that he remembered B.C. reporting he 
had a herniated disc, this report was not documented in the chart. Tr. 
836. Neither were B.C.'s reported prior therapies documented. Tr. 837.
    Dr. Munzing reviewed the subject prescriptions, patient file and 
CURES report for Patient B.C, which he described as lean. Tr. 290-92; 
GDX 3. He opined that the subject controlled substance prescriptions 
issued for hydrocodone, Xanax and Adderall, from January 25, 2017, to 
December 19, 2019, were all issued outside the California standard of 
care. Tr. 290-92, 335-38. B.C. presented on March 27, 2014, with GAD 
and back pain. Tr. 293-94; GX 5 at 48, 55. B.C. was diagnosed with GAD 
and back pain, refusing detox. He was prescribed Xanax (6 mg per day) 
for the GAD, and hydrocodone for the back pain, refusing detox. Tr. 
294. Dr. Munzing reiterated the risks involved in prescribing 6 mg of 
Xanax per day. Tr. 295.
    The records failed to include the minimum history necessary under 
the standard of care to appropriately diagnose back pain and GAD [or to 
prescribe controlled substances to treat those conditions.]. Tr. 295-
96. Other than limited vital signs, the records failed to disclose the 
minimum physical examination necessary under the standard of care to 
appropriately diagnose back pain, or to justify a hydrocodone 
prescription. Tr. 296-97. Dr. Munzing could not remember seeing any 
prior medical records in the Respondent's subject files. Tr. 297. There 
were no entries in B.C.'s file indicating physical or mental 
functioning. Tr. 298, 335-38. There is no treatment plan indicated. The 
Declaration of Pain Medication Use, signed by B.C. at his first visit, 
as discussed supra, is insufficient to evaluate B.C., and to establish 
informed consent for the controlled substances prescribed. Tr. 299-300. 
There was insufficient medical evidence to support either diagnosis. 
Tr. 298, 335-38. So, there was no legitimate medical purpose for either 
controlled substance prescription. Tr. 299, 335-38.
    B.C. presented on May 20, 2014, with ADD and was prescribed 
Adderall. Tr. 301-02; GX 5 at 47. The ADD diagnosis was deficient, as 
no history was developed, no mental functioning was assessed, the 
medical evidence was deficient, and a treatment plan was lacking. The 
Respondent failed to establish a legitimate medical purpose for the 
Adderall. Tr. 302. Additionally, starting B.C. on 30 mg of Adderall 
twice daily is a very high dosage, and extremely inappropriate for an 
Adderall naive patient, which is not justified within the patient file. 
Tr. 302-03. B.C. presented on January 25, 2017, with ADD, opioid 
dependency and GAD. Tr. 303; GX 5 at 33. He was diagnosed with ADD for 
which he was prescribed Adderall, and GAD for which he was prescribed 
Xanax (6 mg per day). Tr. 304. Pain levels were not recorded at this 
visit. The diagnoses were unsupported by sufficient, medical history, 
medical evaluation, response to treatment, patient functionality, and 
medical evidence. Tr. 304-06. He failed to establish a legitimate 
medical purpose for both Adderall and Xanax. Tr. 306, 335-38. The 
Respondent further diagnosed, ``Opioid dependency, refusing detox'' for 
which the Respondent again prescribed hydrocodone. Tr. 306. Prescribing 
hydrocodone for opioid dependence is not only outside the standard of 
care, but it is illegal in California according to Dr. Munzing. Tr. 
307. Hydrocodone is not a legitimate medical treatment for opioid 
dependency and thus the prescription was outside the usual course of 
professional practice. Tr. 307. A patient diagnosed with opioid 
dependency and refusing detox is also a red flag of abuse and 
diversion. Such red flag was repeatedly left unaddressed by the 
Respondent as to B.C. Tr. 306-07; GX 5 at 33.
    On July 31, 2018, B.C. presented with ADD, back pain and GAD. Tr. 
308; GX 5 at 28. He was diagnosed with ADD for which he was prescribed 
Adderall (60 mg per day), ``back pain, opiate dependent, refusing 
detox'' for which he was prescribed hydrocodone, and GAD for which he 
was prescribed Xanax (6 mg per day). Tr. 308. There was no medical 
history supporting the prescriptions. There was no indication how the 
patient was responding to treatment and no indication a physical exam 
was performed to support the diagnoses or justify the prescriptions. 
Tr. 308-09, 335-38. There was no reference to pain levels or physical 
functionality. Tr. 309-10. There was no reference to mental functioning 
with respect to the ADD and GAD diagnoses. There was no appropriate or 
documented support for the three diagnoses. Tr. 309-10.
    Neither did he establish a legitimate medical purpose for the three 
controlled substance prescriptions. Tr. 311. B.C. presented on December 
19, 2019, with ADD and back pain, which were also his diagnoses, and 
for which he was prescribed Adderall (60 mg per day) and hydrocodone. 
Tr. 311-12; GX 5 at 20. The record is absent medical history, any 
updated medical history, the patient's state of health, how he is 
responding to treatment, a physical exam, pain levels, mental or 
physical functioning, appropriate rationale for continued treatment, 
and information relating to drug abuse. Tr. 312-13, 335-38. As a 
result, the three diagnoses are without sufficient medical evidence. 
Tr. 313. Accordingly, the subject charged prescriptions are without a 
legitimate medical purpose, are outside the usual course of 
professional practice, and are beneath the standard of care. Tr. 313-
16, 335-38.
    Dr. Munzing noted the inconsistency of diagnoses throughout B.C.'s 
records and the dual prescribing of hydrocodone for opioid abuse and 
for skeletal pain, without explanation in the record. Tr. 316-19; GX 5, 
p. 31, 32, 33. Dr. Munzing noted the GAD and ADD diagnoses appear and 
disappear within the record, as did their treatment medications. Tr. 
319-24; GX 5 at 27, 31, 32, 33. Dr. Munzing deemed it highly unlikely 
that ADD and GAD were appropriate diagnoses. Tr. 322, 324. The 
Respondent prescribed B.C. a combination of hydrocodone, Adderall and 
Xanax. Tr. 327; GDX 3. Dr. Munzing

[[Page 30597]]

could not conceive of a medical condition warranting this dosage, 
duration, and combination of medications, noting that Adderall is 
counter-indicated for GAD and that combining Xanax with an opioid 
represents a dangerous combination addressed in a FDA black box warning 
and CDC guidance. Tr. 327-29, 332-33; GDX 3. A further concern, as 
detailed earlier in his testimony, is reflected by the repeated 
combination of hydrocodone and Adderall prescribed by the Respondent. 
Tr. 329-30; GDX 3. These dangerous combinations were prescribed without 
an established legitimate medical purpose, outside the usual course of 
professional practice, without sufficient warnings and informed 
consent, without sufficient patient monitoring, and without regard to 
obvious red flags. Tr. 330-35.
    I find, as alleged, that the Respondent's controlled substance 
prescriptions to Patient B.C. from at least January 25, 2017, through 
December 19, 2019, were not issued ``for a legitimate medical purpose 
by an individual practitioner acting in the usual course of his 
professional practice''; [they were issued outside the usual course of 
professional practice and beneath the standard of care in violation of 
21 CFR 1306.04(a).]

Discussion as to Patient J.C.

    The Respondent discussed his treatment of Patient J.C. He presented 
on May 18, 2009, with chronic back pain, ulcerative colitis, and GAD. 
Tr. 759-60, 761-62. [Respondent testified from memory that J.C.] was 
prescribed hydrocodone and Xanax, which was sometimes substituted with 
Valium. Tr. 759. The Government prompted the Respondent to visits in 
which several other controlled substances were also prescribed. Tr. 
842-46; GX 7 at 181, 214, 215.
    The Respondent explained that J.C. had suffered multiple injuries 
and had been immobile for some time. However, the Respondent did not 
document the injuries nor the immobility in the chart, nor did the file 
contain any prior medical records.\30\ Tr. 839, 842; GX 7 at 216. 
[Respondent, testifying from memory,] stated that J.C. had undergone 
physical therapy, occupational therapy, and finally pain management, 
which permitted him to resume working full-time. These alternate 
treatments, therapies, and prior surgeries were not documented within 
the chart. Tr. 840. The Respondent could not remember if J.C. mentioned 
his prior surgeries at the first or second visit. Tr. 840. The 
Respondent testified that he performed a full exam on J.C. Tr. 760-61. 
His GAD resulted from his ulcerative colitis. Tr. 762. The Respondent 
testified that he obtained informed consent to prescribe controlled 
substances by explaining the pain contract, and afterwards, J.C. read 
it and signed it. Tr. 763. The Respondent testified that he verbally 
explained the dangers of overdose to J.C. Tr. 764. The Respondent had 
no concerns over J.C. diverting his medication. Tr. 764-65. On the 
basis of J.C.'s considerable injuries and condition, the Respondent 
felt J.C.'s medication protocol was fully justified. Tr. 765. Although 
the Respondent remembered J.C. reporting that he had seen two previous 
doctors, including a pain physician, that report was not reflected in 
the chart. Tr. 841-42. Although the Respondent remembered performing a 
complete mental health evaluation on J.C., it is not documented in the 
chart. Tr. 842. The Respondent denied ever intentionally misspelling 
J.C.'s first name.*\KK\ Tr. 765-66.
---------------------------------------------------------------------------

    \30\ The Respondent again explained the difficulty in obtaining 
prior medical records. Tr. 842.
    *\KK\ See supra, n.*V.
---------------------------------------------------------------------------

    Dr. Munzing reviewed the subject prescriptions issued from January 
16, 2018, to December 30, 2019, patient records and CURES data relating 
to Patient J.C. Tr. 381-82; GDX 4. Dr. Munzing opined that none of the 
subject prescriptions issued to J.C. were within the California 
standard of care. Tr. 381-82; GDX 4. J.C. presented to the Respondent's 
clinic on May 18, 2009, with a headache and GAD. Tr. 383-384; GX 7, at 
216, 233. He was prescribed hydrocodone for migraines and Xanax for 
GAD, and he remained on this medication regimen for a long period. As 
to the migraines, insufficient medical history was obtained, symptom 
evaluation was absent, no neurological exam was conducted, no 
evaluation of functioning level, no treatment plan evident, and no 
evaluation of possible drug abuse. Tr. 384-90. In short, there was 
insufficient medical evidence to support the diagnosis of migraines and 
GAD, nor was there a legitimate medical purpose to prescribe 
hydrocodone and Xanax. TR. 386-88.
    [On August 17, 2009, J.C. signed a ``Declaration of Pain Medication 
Use'' form indicating that he had no prior drug abuse, and Dr. Munzing 
testified that there is no record of J.C. ever being asked about 
illicit substance abuse again. Tr. 389-90. Dr. Munzing testified that 
the 2009 Declaration was an insufficient inquiry to cover prescribing 
occurring in 2018. Id.]
    J.C. presented on July 21, 2016, with ``GAD, chronic back pain, 
consented for H&P.'' Tr. 390; GX 7, p. 189. He was diagnosed with GAD, 
``back pain--refusing detox'' for which he was prescribed Xanax and 
hydrocodone, respectively. Tr. 390-91. There was no updated history 
taken for either diagnosis, no physical exam, no treatment plan, no 
response to treatment, no pain or functioning level evaluations, no 
discussion regarding drug abuse, and no rationale for continued 
treatment, as was required by the standard of care. Tr. 390-94. 
According there was insufficient medical evidence to support either 
diagnosis. The Respondent did not establish a legitimate medical 
purpose to prescribe the controlled substances. Tr. 393-94. J.C. 
presented on January 16, 2018, with GAD and back pain for which he was 
diagnosed with GAD and back pain, opiate dependent, refused detox. Tr. 
394-95; GX 7 at 180. He was prescribed Valium for the GAD to replace 
Klonopin, and hydrocodone for back pain, although no explanation was 
giving for substituting the Valium for the Klonopin. Tr. 395. There was 
no medical history included in the records, no response to treatment, 
no physical exam, no pain or functioning evaluation, no drug abuse 
history, rendering each diagnosis inappropriate. Tr. 395-97. Without a 
legitimate medical purpose, there was no appropriate rationale for 
continued treatment with controlled substances. Tr. 396-98. J.C. 
presented on February 16, 2018, with ``opioid dependency, GAD,'' yet 
without the previously noted back pain. Tr. 198; GX 7, 9. There is no 
reference to pain. He was diagnosed with ``Opioid dependency, refusing 
detox'' for which he was prescribed hydrocodone, which again, is 
outside the standard of care and usual course of professional practice, 
and illegal in California. Tr. 398-400. The diagnosis for opioid 
dependency being treated with hydrocodone appeared repeatedly in the 
records. Tr. 399. J.C. presented on May 6, 2019, however no treatment 
notes for this visit are evident in the file. Tr. 401; GDX 4, GX 7 at 
168.
    On April 9, 2019, J.C. presented with GERD, and back pain for which 
he was prescribed hydrocodone. Tr. 402. However, there was no medical 
history included in the records, no response to treatment, no physical 
exam, no pain or functioning evaluation, no mental health history, no 
drug abuse history, rendering the back pain diagnosis inappropriate. 
Tr. 402-04. Without a legitimate medical purpose, there was no 
appropriate rationale for continued treatment with controlled 
substances. Tr. 402-04. On December 30, 2019, J.C.

[[Page 30598]]

presented with GERD and GAD. Tr. 404; GX 7 at 171. He was prescribed 
Valium for the GAD. However, there was no appropriate medical history 
included in the records, no response to treatment, no evaluation for 
GAD, or functioning evaluation, no mental health history, no drug abuse 
history, rendering the GAD diagnosis inappropriate from January 16, 
2018, to December 30, 2019. Tr. 404-08, 425-28. Without legitimate 
medical purpose, there was no appropriate rationale for continued 
treatment with controlled substances. Tr. 408, 425-28. Such 
prescriptions, from January 16, 2018, to December 30, 2019, were 
outside the standard of care, without legitimate medical purpose, and 
outside the usual course of professional practice. Tr. 408, 425-28.
    Dr. Munzing noted the inconsistency of diagnoses throughout J.C.'s 
records, and the dual prescribing of hydrocodone for opioid abuse, 
migraines and for skeletal pain, without explanation in the record. Tr. 
410-14; GX 7 at 188, 189, 205, 214, 215. Dr. Munzing noted the skeletal 
pain diagnosis appears and disappears within the record. Tr. 414-15. 
Dr. Munzing suspected the skeletal pain complaints were not legitimate. 
Tr. 415; GX 7 at 188, 189, 205, 214, 215. Dr. Munzing noted the 
Respondent had prescribed the combination of hydrocodone and Valium 
monthly between January 2018, and January 2019, without a legitimate 
medical purpose. Tr. 416-17; GX 4. Combining Valium with an opioid 
represents a dangerous combination and is contrary to a FDA black box 
warning and to CDC guidance, especially with the Valium at its highest 
available strength. Tr. 417. Dr. Munzing could not envision a condition 
in which this medication regimen would be appropriate. Tr. 418. These 
dangerous combinations were prescribed without an established 
legitimate medical purpose, outside the usual course of professional 
practice, without sufficient warnings and informed consent, without 
sufficient patient monitoring, and without regard to obvious red flags. 
Tr. 418-23; GX 7 at 19, 25, 27, 180, 225.
    I find, as alleged, that the Respondent's controlled substance 
prescriptions to Patient J.C. from at least January 16, 2018, through 
December 2019, were not issued ``for a legitimate medical purpose by an 
individual practitioner acting in the usual course of his professional 
practice''; [they were issued outside the usual course of professional 
practice and beneath the standard of care in violation of 21 CFR 
1306.04(a).]

Discussion as to Patient D.D.

    The Respondent explained his treatment of Patient D.D. He first 
presented on July 9, 2008, with GAD and severe back pain, although the 
source of the back injury was not documented. Tr. 767-68, 850; GX 9 at 
74. Over the course of treatment, the Respondent prescribed 
hydrocodone, Xanax, and Soma. Tr. 850. The Respondent added that he 
probably prescribed Valium, as well, explaining he was remembering from 
13 years ago. Tr. 850. The Respondent remembered D.D. was prescribed 
Valium, hydrocodone, and Soma at the first visit. Tr. 851-52. The 
Respondent believes his treatment was within the standard of care in 
California. The Respondent testified that he took a complete medical 
history, family history, personal history and medication history. Tr. 
768. The family history was not documented in the chart. Tr. 848. The 
Respondent explained that the family history was not documented because 
it was non-contributory to his assessment. Tr. 848. [Based on 
Respondent's memory, he testified that] there were no heart conditions 
in his family, etc. Tr. 849. The Respondent did document that D.D. was 
married, which he deemed contributory. Tr. 849. Respondent testified 
that D.D. had a dirt bike accident, which shattered his shoulder and 
fractured several ribs, although the accident as the source of the 
injury was not documented. Tr. 850. [Based on his memory, Respondent 
testified that] D.D. underwent prior physical therapy and occupational 
therapy after treatment by an orthopedic surgeon, although it was not 
documented within the chart. Tr. 769, 771, 850-51. [Again from memory, 
Respondent testified that] it was several years before D.D. reached the 
medication regimen he was on when he first reported to the Respondent. 
The Respondent testified that he performed a full physical exam. He 
testified that he established informed consent with the pain contract 
and discussion of side effects and overdose, as with all his patients. 
Tr. 770. He verbally cautioned D.D. regarding diversion and other red 
flags. Again, Respondent testified that D.D. gave no indication of 
diversion. Tr. 771.
    Dr. Munzing reviewed the subject prescriptions issued from January 
4, 2018, to February 12, 2019, patient records and CURES data relating 
to Patient D.D. Tr. 428-29; GDX 5. Dr. Munzing opined that none of the 
subject prescriptions issued to D.D., which were for hydrocodone, Soma, 
and Xanax, were within the California standard of care. Tr. 430. Again, 
the records were very lean. D.D. presented on July 9, 2008, with GAD 
and back pain. Tr. 430-31 GX 9 at 74. For the GAD, he was prescribed 
Valium, and for back pain, hydrocodone and Soma. Tr. 431. The medical 
records reflect that D.D. refused an MRI and referral to an orthopedist 
or pain specialist. Tr. 431. Each refusal was a red flag and was 
suggestive of drug-seeking behavior. Tr. 432. Instead of addressing the 
red flags, the Respondent prescribed opioids. Tr. 432. The Respondent's 
response was the same throughout the subject treatment of D.D., a total 
of nine and a half years. Tr. 433.
    There was no appropriate medical history included in the records, 
no response to treatment, no physical exam, insufficient patient 
monitoring, no evaluation for GAD, or functioning evaluation, no mental 
health history, no drug abuse history, no discussion of risk factors 
and informed consent, and no patient monitoring, which rendered the GAD 
and back pain diagnoses inappropriate from July 9, 2008, to January 4, 
2019. Tr. 433-38; GX 9 at 37, 39, 41, 43, 44. Without a legitimate 
medical purpose, there was no appropriate rationale for continued 
treatment with controlled substances. Tr. 434-48. Such prescriptions, 
from July 9, 2008, to January 4, 2019, were beneath the standard of 
care, without a legitimate medical purpose, and outside the usual 
course of professional practice. Tr. 434-48. [On January 11, 2019, D.D. 
was diagnosed with GERD and back pain--opiate dependent refusing detox. 
Tr. 439. This is the last time Respondent prescribed D.D. both 
hydrocodone and Soma, but the medical records again reflected a lack of 
appropriate medical history, response to treatment, an appropriate 
physical examination, assessment of pain or physical functionality, an 
appropriate diagnosis, or an established legitimate medical purpose for 
the prescriptions. Tr. 439-40. On February 12, 2019, Respondent 
prescribed D.D. hydrocodone to treat opioid dependency--refusing detox 
without there being any mention of pain, and Dr. Munzing testified that 
this was problematic for all of the reasons he had previously testified 
to. Tr. 441-42. Dr. Munzing testified that at no point during the 
treatment period did Respondent ever obtain a sufficient history to 
establish a diagnosis for back pain or support prescribing of 
hydrocodone, and that the prescriptions for hydrocodone and Soma were 
not issued within the usual course of professional practice and were 
beneath the standard of care. Tr. 443-44.]

[[Page 30599]]

    Dr. Munzing noted a period of over a year, from May 10, 2017, to 
September 19, 2018, when no diagnosis for GAD appeared in D.D.'s 
records and the 30 mg daily dose of Valium was stopped. Tr. 447-48. 
Then on September 19, 2018, the Respondent prescribed 6 mg of Xanax, a 
very high dosage, especially for the beginning dosage. [Dr. Munzing 
testified that Respondent failed to obtain sufficient medical evidence 
upon which to base a GAD diagnosis. Tr. 446.] Compounding this 
dangerous dosage, D.D. was prescribed hydrocodone in combination, which 
heightened the risk of overdose [without any documented warning from 
Respondent regarding the dangers of the controlled substances being 
prescribed.] Tr. 446, 448-50, 458. [Dr. Munzing testified that there 
was no established legitimate medical purpose for prescribing Xanax to 
D.D. Tr. 446.]
    Dr. Munzing noted the inconsistency of diagnoses throughout D.D.'s 
records, and the dual prescribing of hydrocodone and Soma for 
Fibromyalgia, opioid abuse, migraines, and for skeletal pain, without 
explanation in the record. Tr. 450-56; GX 9, p. 43, 51, 64, 70, GDX 5. 
Dr. Munzing noted the skeletal pain diagnosis appears and disappears 
within the record. Tr. 450-56. Dr. Munzing suspected the skeletal pain 
complaints were not legitimate. Tr. 456; GX 9 at 43, 51, 64, 70. 
Prescribing Soma with hydrocodone presents considerable risks to the 
patient. Each are respiratory depressants, which present a significant 
risk of overdose [and addiction.] Tr. 458. [Dr. Munzing also reiterated 
the risks of prescribing both hydrocodone and Xanax together. Tr. 458. 
Dr. Munzing testified that in 2009, D.D. signed ``the same controlled 
substance therapy agreement we've seen with the previous four 
patients,'' and it was insufficient notice of the risks of using 
controlled substances for the reasons already discussed. Tr. 458-59. 
Dr. Munzing further testified that the record is lacking any 
documentation that Respondent adequately warned D.D. of the risks of 
the controlled substances he was taking, particularly in light of the 
various combinations and high dosages. Tr. 459-60.]
    D.D. presented on March 23, 2019, with opioid dependency, refusing 
detox. He was again prescribed hydrocodone and Soma. Tr. 463; GX 9 at 
42, 43. The Respondent failed to address this red flag repeatedly, and 
instead inappropriately prescribed Soma and hydrocodone. Tr. 465.
    I find, as alleged, that the Respondent's controlled substance 
prescriptions to Patient D.D. from at least January 4, 2018, through 
February 12, 2019, were not issued ``for a legitimate medical purpose 
by an individual practitioner acting in the usual course of his 
professional practice''; [they were issued outside the usual course of 
professional practice and beneath the standard of care in violation of 
21 CFR 1306.04(a).]

Discussion as to Patient J.M.

    The Respondent explained his treatment of J.M. He has been a 
patient for 13 years. Tr. 734. The Respondent has prescribed him Xanax, 
Soma, and hydrocodone. The Respondent believed his treatment of J.M. 
was within the California standard of care. J.M. first presented on May 
14, 2007, with chronic pain syndrome, which sometimes manifests as back 
pain, and neck pain, and GAD. Tr. 735; GX 11 at 104. The Respondent 
testified that he took a history. [Testifying based on his memory, 
Respondent said] J.M. had been involved in a motor vehicle accident 
injuring his back, neck and lumbar spine. The motor vehicle accident as 
the source of the injury was not documented. Additionally, he suffered 
from GAD and hypertension. Tr. 736. Tr. 853. Respondent testified that 
J.M. had seen an orthopedic surgeon, although it was not documented in 
the chart. Tr. 853. [Testifying based on memory, Respondent said that 
without medication, J.M. reported severe pain of 10 or 11 out of 10. 
With medication, he reported three of ten, permitting him to function 
and to work full time, although the pain levels were not documented in 
the chart. Tr. 736, 854-55. J.M. reported prior treatments and 
medication. Based on his memory, Respondent testified] J.M. had 
received physical therapy, occupational therapy, hypnosis, and 
acupuncture to no avail prior to turning to chronic pain management, 
although these previous therapies were not documented in the chart. Tr. 
737, 854. His present medication protocol delivered the best results 
with the least side effects he had. Tr. 737. The Respondent testified 
that he probed J.M.'s psychological history, which included an all-
consuming fear.
    The Respondent testified that he performed a comprehensive physical 
exam. Tr. 739. To obtain informed consent to prescribe J.M. controlled 
substances, the Respondent said he went over the pain management 
contract, which J.M. also read and signed. The Respondent testified 
that he verbally cautioned J.M. about diversion and the red flags of 
doctor shopping and pharmacy hopping, which would result in discharge. 
Tr. 739-40.\31\ The Respondent then testified that he discussed the 
beneficial aspects of the pain medication and potential negative 
effects if abused. According to Respondent, J.M. never gave any 
indication he represented a risk of diversion. Tr. 741. Prior to seeing 
the Respondent, Respondent testified that J.M. was on a higher MME of 
opioids. He was able to reduce the dosages to the level he was on when 
he first saw the Respondent. He remains on that dosage. Again, he is 
able to function and work full-time on this dosage. Tr. 742. The 
Respondent noted that J.M. would sometimes try to avoid taking his 
medication, even if he suffered pain, as explanation for the breaks in 
prescribing. Tr. 743.
---------------------------------------------------------------------------

    \31\ [This footnote and the preceding text are omitted for 
brevity and relevance.]
---------------------------------------------------------------------------

    Dr. Munzing reviewed the subject prescriptions and fill stickers 
issued from January 10, 2017, to December 31, 2019, patient records and 
CURES data relating to Patient J.M. Tr. 469-70; GDX 6. [Again Dr. 
Munzing testified there was ``very little information'' in the medical 
records. Tr. 470.] Dr. Munzing opined that none of the subject 
prescriptions issued to J.M. were within the California standard of 
care. Tr. 470-71.
    On May 13, 2007, J.M. presented with hypertension, back pain, GAD, 
dyslipidemia and insomnia. Tr. 470-72; GX 7 at 104, 111. He was 
diagnosed with hypertension, back pain, GAD, dyslipidemia and insomnia. 
He was prescribed hydrocodone for back pain and Xanax (6 mg per day) 
for GAD. Tr. 472. Xanax and hydrocodone were recurring prescriptions. 
As discussed earlier, the high dosage of Xanax was a concern, as well 
as its combination with an opioid. Tr. 473.
    There was no appropriate medical history included in the records, 
no response to treatment, no physical exam, insufficient patient 
monitoring, no evaluation for GAD, no treatment plan, no pain or 
functioning evaluation, no mental health history, no ongoing drug abuse 
history or monitoring, no discussion of risk factors and informed 
consent, and no patient monitoring, rendering the GAD and back pain 
diagnoses inappropriate from May 13, 2007, to January 13, 2017. Tr. 
473-76, 478, 481-83, 485-500. Per Dr. Munzing, the MRI of May 30, 2007, 
and its mild findings, did not independently satisfy the Respondent's 
related obligations or justify the subject prescriptions. Tr. 479-80, 
485-87; GX 11 at 14, 16, 17, 22, 26, 31, 37, 41, 42, 115. [Dr. Munzing 
testified that for the five visits between

[[Page 30600]]

January 10, 2017, through March 27, 2017, there is so little 
documentation that Dr. Munzing cannot tell whether the records reflect 
``actual visits'' or just ``documentation of a refill of the 
medication,'' because there are no examination or history notations, no 
documentation of the dose or strength prescribed, no diagnoses, nothing 
to meet the standard of care for prescribing hydrocodone and Xanax for 
that period. Tr. 482-85. The first prescription for Soma during the 
relevant time period was on April 13, 2017, and according to Dr. 
Munzing, the medical note said ``Xanax number 90, Soma number 50SED, 
and then a signature'' with absolutely nothing else recorded and none 
of the elements of the standard of care met. Tr. 485-86. Dr. Munzing 
testified specifically about selected office visits. On April 25, 2018, 
Respondent's records for J.M. contain information suggesting an office 
visit occurred, but they continue to have the same deficiencies. That 
day, J.M. was not diagnosed with pain, but with GAD and opioid 
dependence--refusing detox which was treated with hydrocodone. Tr. 487. 
Dr. Munzing reiterated his concerns that hydrocodone was not 
appropriate treatment for opioid dependence and was inappropriate each 
time it was prescribed for that purpose. Tr. 488. Dr. Munzing testified 
about the November 19, 2018 visit where J.M. was prescribed Xanax for 
GAD and Soma for back pain; the February 20, 2019 visit where he was 
prescribed Xanax for GAD and hydrocodone for back pain; and the 
December 31, 2019 visit where he was prescribed Xanax for GAD and was 
not diagnosed with back pain. Tr. 489, 492-93, 495. Dr. Munzing again 
testified, amongst other things, that for each of these visits there 
was an insufficient medical history or physical examination to make the 
diagnoses, there is no information regarding the response to treatment, 
pain level, or functionality, and there was no legitimate medical 
purpose established for the prescriptions at issue. Tr. 489-91, 493-
97.] Without a legitimate medical purpose, there was no appropriate 
rationale for the controlled substance prescriptions, or to continue 
treatment with controlled substances. Tr. 473-76, 478, 485-500, 505; 
GDX 7.
    There were also red flags left unaddressed by the Respondent. J.M. 
refused to see a pain specialist, which gives rise to the suspicion 
that he is not concerned about getting better, but just getting 
medicated. Tr. 476-77. [Omitted for relevance.] Dr. Munzing noted that 
there were gaps in the hydrocodone and Soma prescriptions without any 
required explanation for changes to the medication regimen. Tr. 500-04; 
GX 11 at 36, 37, 40, 41, 42, 76. He observed that the hydrocodone was 
prescribed either for back pain or for opioid dependence. Tr. 504. 
However, the required evaluation for the diagnoses coming and going and 
explanation for treatment is lacking. This further diminishes any 
medical legitimacy for the hydrocodone. Tr. 504.
    Additionally, the Respondent prescribed a very addictive and 
dangerous combination of medications, an opioid and a benzodiazepine. 
Tr. 558-60. Even more concerning, he added a muscle relaxant to this 
already dangerous combination to form the ``Holy Trinity,'' a favorite 
drug combination for abuse by the drug-abusing community. Tr. 505-10. 
Dr. Munzing could not conceive of a medical condition in which the 
trinity combination would represent appropriate treatment. Tr. 512. 
This trinity of medications was prescribed to J.M. repeatedly. GDX 6. 
The file fails to reveal that appropriate warnings were given to J.M. 
in connection with these dangerous combinations. Tr. 511; GX 11 at 113. 
The CURES report reveals 40 Xanax prescriptions (3600 dosage units and 
7200 mgs) were issued to J.M. between January 2017, and November 2018, 
a period of 22 months, which averages 10.5 mgs per day. Tr. 512-17; GX 
7, 17, 18. This averaged a prescription every 16 days. Tr. 527-28. Ten 
and a half mgs per day is considerably greater than the maximum 4 mg 
per day recommended for treatment of anxiety.
    DI identified GX 26, an additional CURES Audit Report, one for Dr. 
B.S.2, which spanned from January 2017, to September 2020, and which 
shared a common patient with the Respondent, J.M. Tr. 911-13; GX 26, 
26B. Dr. B.S.2 prescribed Suboxone to J.M. from January 2017, to August 
2020. Tr. 913. The CURES Audit of the Respondent demonstrated that 
Respondent accessed the CURES database during the period J.M. was 
prescribed Suboxone by Dr. B.S.2, which would have been evident by this 
review. Tr. 914. The Respondent testified he cautioned J.M. regarding 
diversion and other red flags and J.M. gave no indication of diversion. 
Tr. 771. But the CURES report belies the Respondent's assurances. The 
Respondent was or should have been aware J.M. was obtaining Suboxone 
from Dr. B.S.2, yet the Respondent did not mention that critical fact 
in J.M.'s chart. [Dr. Munzing testified that he had ``great concerns 
with continuing to prescribe hydrocodone despite the fact that he's on 
Suboxone and had been identified . . . as [having] opiate use 
disorder.'' Tr. 948.] Yet, the Respondent continued prescribing 
controlled substances to J.M. This action likely exceeds the bounds of 
benign neglect and crosses into the realm of intentional diversion. 
[Either way, I find that Respondent's prescribing was outside the usual 
course of professional practice and beneath the standard of care.]
    The Respondent denied ever using a different first name for J.M. or 
using a different birth date for him [and attributed any mistake to the 
pharmacy.] Tr. 778-82. However, the CURES report lists two different 
dates of birth for J.M., as well as two different spellings of his 
first name. Tr. 517-18, 547-49; GX 18. A CURES search would be name and 
date of birth specific. So that a search by one name and date of birth 
would not reveal prescriptions filed under the alternate name and date 
of birth. Tr. 526. The main sources of the CURES report information are 
two pharmacies, Reliable Rexall and Northridge Pharmacy. Tr. 518-19. 
Despite the fact that J.M. was using different names and dates of birth 
at different pharmacies, a considerable red flag suggesting abuse or 
diversion, the Respondent did not address these issues. Tr. 519-20, 
525-26. Even if J.M. or the pharmacies were the source of the alternate 
dates of birth and alternate first names, with due diligence, the 
Respondent would have discovered that a search by a single name and 
date of birth would only include half of the Xanax prescriptions the 
Respondent issued to J.M. Tr. 521-26, 549-50. Additionally, a review of 
two prescriptions, one written by the Respondent and one called in by 
the Respondent on the same day contain two different dates of birth. 
Tr. 533-34.
    Of further suspicion, the CURES report reveals J.M. is alternating 
the filling of the Xanax prescriptions between the two pharmacies, 
apparently trying to hide the bi-monthly frequency of the 
prescriptions. Tr. 520; GX 17, 18. Dr. Munzing noted this was a 
suspicious prescribing practice by the Respondent. Tr. 530; GX 17, #s 
425 & 575.\32\ He would issue two prescriptions on the same day to 
J.M., one for hydrocodone and one for Xanax. He would issue a written 
prescription for hydrocodone, which J.M. would invariably fill at 
Northridge Pharmacy, but call in to Reliable Pharmacy the prescription 
for Xanax. Tr. 531-33, 535-45, 550-58; GX 11 at 32, 33, 35, 36, 38, 40, 
41, GX 12 at 5, 6, 10, 11, 14, 22, 24, 27, 33, 34; GX 13, at 20, 25, 
27, 32, 34; GX 17, 18 #s 473, 474, 994, 1120, 1228, 1386, 1472, 1553, 
2102, 2229, 2341, 2342. In

[[Page 30601]]

accordance with Dr. Munzing's testimony, this appears to be an attempt 
by J.M. to avoid the suspicion generated by the opioid/benzodiazepine 
combination if filled at a single pharmacy. Tr. 532-33, 557-60. There 
was an additional suspicious circumstance related to a Xanax 
prescription. The Respondent wrote in his medical notes that the 
medication should be taken once every eight hours, while the call-in 
information to the pharmacy was once every six hours. Tr. 543-45, 554, 
556-57.
---------------------------------------------------------------------------

    \32\ These are prescription numbers.
---------------------------------------------------------------------------

    In light of the fact that Respondent knew or should have known 
about the Suboxone prescriptions by Dr. B.S.2 and this prescribing 
strategy, which was unaddressed or unexplained by the Respondent in his 
testimony, and on the basis of this record, drawing all rational 
inferences warranted by the evidence, it is more believable than not 
that the Respondent was involved in J.M.'s sophisticated attempt to 
avoid detection by the pharmacies.*\LL\
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    *\LL\ While I do not disagree with the ALJ's analysis here, it 
is unnecessary and immaterial to my decision. There is plenty of 
evidence supporting revocation on the grounds that Respondent's 
prescribing was outside the usual course of professional practice 
and beneath the standard of care in California, and Respondent has 
failed to take any responsibility for his actions. Thus, while I 
have left the ALJ's discussions and findings that Respondent 
assisted J.M. in a diversion scheme intact throughout this decision, 
I have ultimately not based my decision on those findings. See also 
supra n. *DD.
---------------------------------------------------------------------------

    The red flag of refusing to detox was repeatedly evident within 
J.M.'s patient file. Tr. 562; GX 11 at 37. He was diagnosed with 
``Opioid dependency, refusing detox'' for which he was prescribed 
hydrocodone, which again, is beneath the standard of care, outside the 
usual course of professional practice, and illegal in California. Tr. 
563-64. The diagnosis for opioid dependency being treated with 
hydrocodone appeared repeatedly in the records. The Respondent never 
addressed this red flag. Tr. 564.
    A review of the entirety of J.M.'s file and related records 
revealed there was no appropriate medical history included in the 
records, no response to treatment, no physical exam, insufficient 
patient monitoring, no evaluation for GAD, or pain level/functioning 
evaluation, no mental health history, no drug abuse history, no 
discussion of risk factors and informed consent, no patient monitoring, 
no resolution of the multiple red flags noted, rendering the GAD and 
back pain diagnoses inappropriate from January 10, 2017, to December 
31, 2019, and beneath the California standard of care. Each was without 
a legitimate medical purpose and outside the usual course of 
professional practice. Tr. 565-68.
    I find, as alleged, that the Respondent's controlled substance 
prescriptions to Patient J.M. from at least January 10, 2017, through 
December 31, 2019, were not issued ``for a legitimate medical purpose 
by an individual practitioner acting in the usual course of his 
professional practice''; [they were issued outside the usual course of 
professional practice and beneath the standard of care in violation of 
21 CFR 1306.04(a).]

Discussion as to Patient K.S.

    The Respondent explained Patient K.S.'s treatment. K.S. presented 
on June 21, 2007, with chronic back pain. He was later diagnosed with 
ADD. He was prescribed hydrocodone, Soma, and sometimes Adderall. Tr. 
788-89, 861; GX 14 at 110. The Respondent added that he may have also 
prescribed Xanax, but it is difficult to be sure with hundreds of 
patients and treatment dating back 15 years. Tr. 859. He testified that 
even with a ``good memory, sometimes [the Respondent] just miss[es] 
something.'' Tr. 859. Additionally, he noted that patients do not 
always disclose all of their medications at the initial visit if they 
have plenty and do not then need them to be refilled. So, he is not 
always aware of all of their medications at the initial visit. Tr. 860-
62.
    The Respondent believed his prescribing was within the standard of 
care for California. The Respondent testified that he obtained a full 
medical history, medication history, pain level, and performed a 
complete head to toe physical exam. Tr. 789. [Based on memory alone,] 
the Respondent testified that he discovered K.S. had chronic back pain 
related to a bike accident for which he had been treated by several 
doctors for several years, although the bike accident as the source of 
the injury and treatment by other doctors was not documented. Tr. 856-
57, 859. Additionally, there were no records from prior treatment in 
the patient's records. Tr. 857. Although the Respondent explained that 
he requested the prior medical records, none were provided. The 
Respondent explained that his request for records is simply faxed to 
the previous physician's office. Tr. 857-58. Respondent speculated that 
the absence of a documented request for records in K.S.'s file was 
probably due to a staffer forgetting to file it. Tr. 858. The 
Respondent did not contest the Government's observation that no 
requests for previous medical records were in any of the seven patient 
files. Tr. 859. According to Respondent, K.S. was already on 
hydrocodone when K.S. first saw the Respondent. The Respondent 
testified that he obtained informed consent in the same manner as 
described for his earlier patients. Tr. 790. He discussed alternative 
forms of treatment with K.S., and [based on his memory] K.S. was 
obtaining physical therapy prior to seeing the Respondent. K.S. 
continued physical therapy after beginning treatment with the 
Respondent. Tr. 791. The Respondent testified that he monitored K.S. 
throughout his treatment. Tr. 791. Respondent believed that K.S. 
presented no indications of diversion. The Respondent has treated K.S. 
for thirteen years, during which time K.S. got married and had three 
children. Tr. 790-91.
    Dr. Munzing reviewed the subject prescriptions and fill stickers 
issued from January 19, 2018, to January 31, 2019, patient records, and 
CURES data relating to Patient K.S. Tr. 469-70; GDX 8. [Again Dr. 
Munzing testified there was ``very little'' information in the medical 
records. Tr. 569.] Dr. Munzing opined that none of the relevant 
prescriptions issued to K.S. were within the California standard of 
care. Tr. 568-70. K.S. presented on June 21, 2007, with ``back pain'' 
for which he was prescribed hydrocodone and Soma. Tr. 570; GX 13 at 
117. Although the Respondent noted he would get an MRI for the lumbar 
spine, no such MRI appears in the records. Tr. 271. There was also no 
medical history included in this record regarding back pain, no 
treatment plan, no response to treatment, no physical exam, no pain or 
functioning evaluation, no ongoing drug abuse history, rendering the 
back pain diagnosis inappropriate. Tr. 570. Without a legitimate 
medical purpose, there was no appropriate rationale for continued 
treatment with controlled substances for back pain. Tr. 571-76.
    [On August 5, 2009, K.S. signed a ``Declaration of Pain Medication 
Use'' form indicating that he had no prior drug abuse, and Dr. Munzing 
testified that there is no record of K.S. ever being asked about 
illicit substance abuse again. Tr. 575. Dr. Munzing testified that the 
2009 Declaration was an insufficient inquiry to cover prescribing 
occurring at any point in time when Respondent was treating K.S. Tr. 
576.]
    On May 1, 2012, K.S. presented with GAD and neck pain. Tr. 576; GX 
14 at 80. He was diagnosed with GAD and neck pain, and prescribed Xanax 
for GAD and hydrocodone for the neck pain, refusing detox. Tr. 577. 
K.S. was prescribed the combination of hydrocodone and Xanax frequently 
throughout his treatment. This

[[Page 30602]]

combination of an opioid and a benzodiazepine is dangerous, beneath the 
standard of care and represents a red flag that went unresolved by the 
Respondent throughout the records. Tr. 578-79. There was no medical 
history supporting the prescriptions. There was no indication of how 
the patient was responding to treatment. There was no treatment plan, 
and no indication that a physical exam was performed to support the 
diagnoses or justify the prescriptions. Tr. 579-81. There was no 
reference to pain levels or physical functionality. There was no 
reference to mental functioning with respect to the GAD diagnosis. 
There was no appropriate diagnosis for the GAD and neck pain. Neither 
did he establish a legitimate medical purpose for the controlled 
substance prescriptions. Tr. 580-81.
    K.S. presented on November 18, 2013, and was prescribed Adderall 
(60 mg per day) with no documented evaluation for or diagnosis of any 
condition which Adderall may treat. Tr. 581-82; GX 14 at 70. There is 
also no medical history, physical exam, or treatment plan, and 
accordingly, the subject prescription is without a legitimate medical 
purpose.*\MM\ Tr. 582.
---------------------------------------------------------------------------

    *\MM\ This sentence was modified for clarity.
---------------------------------------------------------------------------

    On January 19, 2018, K.S. presented with GAD, back pain, and ADD. 
Tr. 583, 599; GX 14 at 41. For GAD, the Respondent prescribed Xanax. 
For back pain--opioid dependent, refusing detox, the Respondent 
prescribed hydrocodone, and for ADD, Adderall was prescribed. Tr. 584. 
The record is missing a medical history, any updated medical history, 
an explanation of why back pain has returned, the patient's state of 
health, how he's responding to treatment, a physical exam, pain levels, 
mental or physical functioning, appropriate rationale for continued 
treatment, and information relating to drug abuse. As a result, the 
treatment is without sufficient medical evidence. Tr. 584-86. 
Accordingly, the subject charged prescriptions are without a legitimate 
medical purpose, are outside the usual course of professional practice, 
and are beneath the standard of care. Tr. 586.
    On February 27, 2018, K.S. presented with ADD, opioid dependency, 
and GAD. Tr. 586-87, 599-600; GX 14 at 39, 40. He was diagnosed with 
ADD, opioid dependency-refusing detox, and GAD. Back pain was not 
reported, nor was any report of pain made. At the April 30, 2018 visit, 
again, back pain was not reported, nor was any report of pain made. Tr. 
601. Throughout the records, the Respondent failed to explain the 
appearance and disappearance of back pain. Tr. 601-02. Again, beneath 
the standard of care and contrary to the law in California, K.S. was 
prescribed hydrocodone for opioid dependency. Tr. 587-88. On November 
28, 2018, K.S. presented with opioid dependency-refusing detox and GAD, 
and for which he was prescribed hydrocodone and Xanax respectively. Tr. 
588-589; GX 14 at 33; GDX 8. Again, beneath the standard of care and 
contrary to the law in California, K.S. was prescribed hydrocodone for 
opioid dependency. Tr. 588-89. And again the medication regimen 
included the dangerous combination of an opioid and benzodiazepine. The 
record is missing any medical history, any updated medical history, the 
patient's state of health, how he was responding to treatment, a 
physical exam, pain levels, mental or physical functioning, any 
evaluation for GAD, appropriate rationale for continued treatment, and 
information relating to drug abuse. As a result, the treatment is 
without sufficient medical evidence. Tr. 588-89. Accordingly, the 
subject charged prescriptions are without a legitimate medical purpose, 
are outside the usual course of professional practice, and are beneath 
the standard of care. Tr. 590.
    On December 11, 2018, K.S. presented with ADD and eczema for which 
he was diagnosed with ADD and eczema. Tr. 591; GX 14 at 33. For ADD he 
was prescribed Adderall. [Dr. Munzing testified that the Adderall 
prescription lacked a legitimate medical purpose for the same reasons 
as the prior prescriptions he had just discussed. Tr. 591-93.] On 
January 31, 2019, K.S. presented with back pain and stomatitis. Tr. 
593-94; GX 14 at 31. For the back pain he was prescribed hydrocodone. 
[Again, Dr. Munzing testified that the hydrocodone prescription lacked 
a legitimate medical purpose for the same reasons as the prior 
prescriptions he had just discussed. Tr. 594-95.]
    A review of the entirety of K.S.'s subject medical records reveals 
that the Respondent never obtained any prior medical records. Tr. 596, 
619. The record is missing an adequate medical history, any updated 
medical history, the patient's state of health, how he was responding 
to treatment, a physical exam, pain levels, mental or physical 
functioning, any evaluation for GAD, appropriate rationale for 
continued treatment, and information relating to drug abuse. As a 
result, the treatment is without sufficient medical evidence. Tr. 598-
99, 620. Accordingly, the subject charged prescriptions are without a 
legitimate medical purpose, are outside the usual course of 
professional practice, and are beneath the standard of care. Tr. 598, 
619-20.
    [Dr. Munzing testified that, similar to the other patients, 
Respondent prescribed hydrocodone to K.S. for back pain, then neck 
pain, then for opioid dependency, and sometimes for a combination of 
these reasons, without any documentation regarding these changes or the 
coming and going of the pain issues as would be required by the 
standard of care. Tr. 598-602.] Dr. Munzing also noted the 
inconsistency of the GAD diagnoses throughout the records. Tr. 602-05; 
GX 14 at 31, 42, 47, 48. With the GAD diagnoses appearing and 
disappearing within the records without any explanation, Dr. Munzing 
observed there is no medical evidence it was a medically legitimate 
diagnosis. Tr. 605-09; GX 8. Similarly, ADD was inconsistently 
diagnosed and Adderall was inconsistently prescribed. Tr. 605-06; GX 14 
at 34, 35; GX 8. With the ADD diagnoses appearing and disappearing 
within the records without any explanation, Dr. Munzing observed there 
is no medical evidence it was a medically legitimate diagnosis. Tr. 
609.
    Dr. Munzing noted the Respondent prescribed a dangerous combination 
of medications, including hydrocodone, Adderall and Xanax, which was 
prescribed from January 2018, through August 2018. Tr. 609-10. Dr. 
Munzing noted it is referred to by drug abusers as the ``new Holy 
Trinity.'' Tr. 610. Additionally, the combination of an opioid and a 
benzodiazepine is present in August, October, and November 2018. Tr. 
610-11. The records do not establish that the appropriate warnings were 
conveyed to K.S., or that informed consent was obtained. Tr. 611-13; GX 
8. Dr. Munzing could not conceive of a medical condition warranting the 
dangerous combinations of medications prescribed. Tr. 614. [Dr. Munzing 
also noted that Respondent failed to properly monitor medication 
compliance, and conducted no urine drug screens, as was required by the 
standard of care in California. Tr. 614.]
    Dr. Munzing noted the Respondent's failure to resolve red flags, 
including, K.S.'s refusal to detox, the dangerous combinations of 
medications, and high dosages of controlled medications. Tr. 615-18, 
620; GX 14 at 39, 40, 41. The refusal to detox is a major red flag for 
opioid use disorder and for diversion. However, the Respondent did not 
take any necessary action, such as CURES monitoring, UDS, counseling, 
or titration. Rather, he simply prescribed the same levels of 
medications she was on, PRN. Tr. 615-17. The Respondent's prescribing 
was beneath the California standard of care.

[[Page 30603]]

    Additionally, as noted above, during this time period the 
Respondent repeatedly prescribed hydrocodone to Patient K.S. as 
``treatment'' for Patient K.S.'s opioid dependency, in violation of 21 
CFR 1306.04(c).
    I find, as alleged, that the Respondent's controlled substance 
prescriptions to Patient K.S. from at least January 19, 2018, through 
January 31, 2019, were not issued ``for a legitimate medical purpose by 
an individual practitioner acting in the usual course of his 
professional practice''; [they were issued outside the usual course of 
professional practice and beneath the standard of care in violation of 
21 CFR 1306.04(a).]

The Respondent's General Denial

    The Respondent testified that, to the best of his knowledge, none 
of his thousands of patients have suffered any harm from his medication 
treatment. Tr. 793. The Respondent also disagreed with Dr. Munzing's 
assertion that there was likely no medical condition justifying the 
dangerous combinations of medications identified herein. Tr. 794-800. 
[Respondent testified that combinations of opiates, muscle relaxants, 
and benzodiazepines, when ``used in the right dosages for the right 
indications, and used as prescribed by a knowledgeable M.D., . . . are 
safe to use in combination therapy.'' Tr. 797.] The Respondent conceded 
the potential danger of individual pain medications, and the potential 
increase in risk when combined with other medications. However, he 
stated that, if patients are responsible and take the medications as 
prescribed for the indications intended, these combinations are fairly 
safe. Tr. 800.\33\
---------------------------------------------------------------------------

    \33\ [Omitted repetitious text for brevity.]
---------------------------------------------------------------------------

    The Respondent recognized his obligation to follow all federal and 
state rules concerning the practice of medicine, including the 
directives of the California Board of Medicine. Tr. 862. California's 
Compliance with Controlled Substance Laws and Regulations includes a 
provision on records. Tr. 864; GX 20 at 61. It mandates that, ``[t]he 
physician and surgeon should keep accurate and complete records 
according to the items above, [including] the medical history and 
physical examination, other evaluations and consultations, treatment 
plan objectives, informed consent, treatments, medications, rationale 
for changes in the treatment plan or medications, agreements with the 
patient, and periodic reviews of the treatment plan.'' Tr. 864-65. The 
provision further requires, ``[a] medical history and physical 
examination must be accomplished . . . this includes an assessment of 
the pain, physical and psychological function.'' Tr. 866; GX 20 at 59. 
The Respondent assured the tribunal that the necessary assessments were 
made, but admitted they were not fully documented. Tr. 866-67. The 
Respondent made the same assurances for the requirement as to 
``Treatment Plan Objectives,'' ``Informed Consent,'' ``Periodic 
Review,'' noting that these Guidelines were published in 2013.\34\ Tr. 
867-72.
---------------------------------------------------------------------------

    \34\ See Tr. 950-52. [Though this Decision discusses 
Respondent's early treatment of the seven individuals, which often 
predates 2013, Respondent is not being held responsible for any acts 
or omissions prior to the relevant time period which begins in 
January 2017. Any discussion of events prior to January 2017, are 
only relevant to establishing that the subject prescriptions issued 
during the relevant time period were issued outside the usual course 
of professional practice and beneath the standard of care.] Dr. 
Munzing testified credibly that the 2013 version was the 7th edition 
and the basic requirement have not changed over the years.
---------------------------------------------------------------------------

    The Respondent reiterated that, to his knowledge, none of his 
patients exhibited red flags, or violated the pain agreement. Tr. 888-
89.

Credibility Analysis of the Respondent

    In his testimony, the Respondent [initially] came off as very 
sincere and credible. Accepting his testimony as true and accurate 
(although his perception of the standard of care was, in several 
instances, unfounded, and his treatment was, in many cases, outside the 
standard of care), his explanations seemed to present that of a caring, 
dedicated practitioner, who may be guilty of benign neglect in his 
[prescribing] and failure to maintain complete and accurate records.
    However, the discovery during rebuttal that Respondent had accessed 
the CURES report for S.B. and J.M. and made no changes to his 
prescribing practices thereafter, dramatically changed that 
perception.*\NN\ The Respondent was [or should have been] fully aware 
that those patients were being prescribed Suboxone, an opioid commonly 
prescribed for abuse, by other physicians in violation of Respondent's 
own controlled substance agreements with those patients. Yet the 
Respondent failed to note that significant fact in the charts, and even 
more alarmingly, continued the patients on opioids and other controlled 
substances. Not only was this information missing from the patient 
charts, the Respondent failed to address the results of his CURES 
monitoring in his testimony. The Respondent has lost a great deal of 
credibility.
---------------------------------------------------------------------------

    *\NN\ On direct and cross, Respondent agreed that it would ``be 
a problem'' and a ``red flag of abuse or diversion'' for a patient 
to be receiving two opioids at once. Tr. 888-89. He also testified 
that he tells his patients ``that they cannot run to different 
doctors for medications,'' and he testified that all of his patients 
abided by the terms of the agreement ``to the best of [his] 
knowledge, yes, because if not, then [they would] have to be 
discharged from the practice.'' Tr. 659, 888. Similarly, the 
Controlled Substances Therapy Agreement states that ``[a]ll 
controlled substances must come from [Respondent,]'' and that the 
patient's ``failure to adhere to these policies may result in 
cessation of therapy with controlled substances.'' GX 11 at 114. The 
CURES reports that were introduced on rebuttal revealed that at 
least two patients were receiving controlled substances from other 
physicians, notably opioids when they were already getting opioids 
from Respondent, and there is no indication that this agreement 
violation was addressed by Respondent, let alone that the patients 
were discharged from the practice.
---------------------------------------------------------------------------

    I was [originally] willing to give the Respondent the benefit of 
the doubt regarding the alias used by J.M. in filling opioid/
benzodiazepine prescriptions, the unexplained simultaneous dispensing 
of the opioid and benzodiazepine prescriptions to two separate 
pharmacies by the Respondent, and the inconsistent instructions for 
usage of the benzodiazepine. But, [in light of the credibility issues], 
it appears more believable than not that the Respondent was a knowing 
participant in what appears to be a sophisticated attempt to divert 
medication by J.M.\35\ *\OO\
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    \35\ ``While proof of intentional or knowing diversion is highly 
consequential in these proceedings, the Agency's authority to act is 
not limited to those instances in which a practitioner is shown to 
have engaged in such acts. . . . Accordingly, under the public 
interest standard, DEA has authority to consider those prescribing 
practices of a physician, which, while not rising to the level of 
intentional or knowing misconduct, nonetheless create a substantial 
risk of diversion.'' Dewey C. Mackay, M.D., 75 FR 49956, 49974-75 
n.35 (2010) (citing Paul J. Caragine, Jr., 63 FR at 51601 (``Just 
because misconduct is unintentional, innocent or devoid of improper 
motivation, does not preclude revocation or denial [of a 
registration]. Careless or negligent handling of controlled 
substances creates the opportunity for diversion and could justify 
revocation or denial.'')).
    *\OO\ See supra n. *DD and n. *LL. While I have left the ALJ's 
discussions and findings that Respondent assisted J.M. in a 
diversion scheme intact throughout this decision, I have ultimately 
not based my decision on those findings.
---------------------------------------------------------------------------

    The Respondent's testimony that he performed all of the procedures, 
undocumented in the charts, and [but for documentation failures] fully 
complied with the California standard of care suffers from the same 
loss of credibility.
    [In his Exceptions, Respondent ``disagree[d] with the weight that 
the ALJ assigned to the Government's rebuttal evidence regarding the 
CURES audit report, and [argued] that such rebuttal evidence is 
insufficient to overcome [Respondent's] testimony.''

[[Page 30604]]

Resp Exceptions, at 3-4 (internal citations omitted). This is because, 
Respondent argued, the substance of Respondent's testimony was that 
``he overlooked some details during his treatment of [the seven] 
patients,'' and that the rebuttal evidence affirms that testimony, ``to 
wit: due to the same benign negligence he overlooked S.B.'s and J.M.'s 
prescription by other physicians when accessing the CURES database.'' 
Id. at 4. In summary, all of Respondent's Exceptions challenge that 
ALJ's credibility finding because it is ``solely based on [the 
Government's] questionable rebuttal evidence.'' Id. at 5.
    I find, in agreement with the ALJ, that Respondent's testimony 
lacked credibility where it was inconsistent with, or provided 
additional information not included in, the patient files and 
documentary evidence in the record. However, I base my finding on 
Respondent's questionable credibility as demonstrated throughout the 
entirety of the hearing, not just on the Government's rebuttal 
evidence. The ALJ is best situated to observe the testimony of the 
Respondent, and I note that he appeared to be describing Respondent's 
demeanor when he stated that Respondent ``came off as very sincere and 
credible.'' I credit the ALJ's description of Respondent's demeanor, 
but in spite of his described sincerity, both the ALJ *\PP\ and I found 
many instances of objective issues with the credibility of Respondent's 
direct testimony. Specifically, when Respondent was asked questions 
about a specific patient, he often answered with testimony about his 
general practices or regarding his patients collectively. Secondly, 
Respondent's memory was shown to be less than fully reliable, which 
calls into question those actions that he testified he remembered 
taking, but that he did not document in the patient files.
---------------------------------------------------------------------------

    *\PP\ Although not included in the section dedicated to 
analyzing Respondent's credibility, the ALJ noted several instances 
of Respondent's memory failures and found that Respondent's memory 
was ``not always infallible.'' RD, at 99; see also supra n. 23 and 
n. 24.
---------------------------------------------------------------------------

    First, throughout Respondent's testimony about his prescribing, it 
was difficult to tell whether he was actually testifying specifically 
as to each individual. It often seemed that he was testifying generally 
as to the policies and procedures he purportedly followed in the 
regular course of his practice, and was just assuming that those 
policies and procedure were followed with regard to the named patients. 
Even where Respondent seemed to be testifying about a specific patient, 
his testimony quickly would morph into testimony about his patients 
collectively. See supra n. *X for an illustration of how difficult it 
was to pin down whether Respondent was testifying about a specific 
individual or his patients collectively. This sort of collective focus 
that appears throughout Respondent's testimony causes me to question 
Respondent's credibility--specifically whether he remembered the events 
that occurred at each specific visit for each specific patient that he 
discussed in the absence of medical records documenting these events. 
Indeed, Respondent testified that ``[o]ver [his] career, [he] worked 
[with] about 5,000 patients,'' that he had ``close to 550-600 
patients'' at the time of the hearing, and that prior to the order to 
show cause he ``had between 175-200 [pain] patients.'' *\QQ\ Tr. 792. 
With that many patients, Respondent surely would have been required to 
keep track of a lot of specific undocumented information. This concern 
about collective testimony and Respondent's specific memory was 
highlighted when during Respondent's entire testimony about J.M., 
Respondent and his counsel both called J.M. by the initials M.B. (a 
different individual at issue in the case). See supra n. 12; Tr. 734-
43. The error was not discovered until sometime later when Respondent 
was questioned about J.M. again and responded that he had already 
discussed J.M. (though referring to him as M.B. the whole time). Tr. 
772-76. This exchange did not fill me with confidence that Respondent's 
testimony reflected his true recollection of the specific actions he 
took with regard to the specific patient being discussed.
---------------------------------------------------------------------------

    *\QQ\ But see supra n. 9 which documents confusion in the record 
regarding how many patients Respondent was actually seeing at any 
given point. There I noted that while the exact number of patients 
that Respondent was treating at any given time has little relevance 
to my decision in this matter, it is one another small thing that 
contributes to me questioning Respondent's ability to accurately 
recall the undocumented details of each medical visit to which he 
testified.
---------------------------------------------------------------------------

    Secondly, Respondent's credibility is diminished where he testified 
based on his memory. Respondent repeatedly testified that we should 
trust him and his photographic memory. For example, he testified, ``I 
rely on my photographic memory.'' Tr. 808-09. ``As soon as the patient 
disclosed [the prior treatments] to me, I memorize it. I remember it. 
You've seen how several years later I still remember it. . . . I did 
not feel I have to clutter my charts with, you know, this 
information.'' Tr. 806-07. He also testified, ``[W]hat's pertinent, 
what's your diagnosis, what's your main exam, and what's your treatment 
is reflected [in the notes]. The rest I remember. I don't need to write 
it.'' Tr. 807-08. But Respondent testified with equal frequency that we 
should not rely on his memory. For example, he testified, that even 
with a ``good memory, sometimes you just miss something.'' Tr. 859. He 
testified that he could not always provide a specific response because 
the information was not in his notes. ``Whether [J.C.] mentioned the 
surgery the very first visit, that I cannot tell you yes or no at this 
point because it's not in my notes. So I'm just second guessing 
myself.'' Tr. 841; supra n. *U. And when directed to identify 
specifically which forms of alternative treatment M.B. had tried, 
Respondent testified, ``I don't want to misspeak. I'm not sure if he 
had . . . acupuncture or not. But I know for a fact he had physical 
therapy.'' Tr. 827; supra n. *X. He also testified that the passage of 
time had impacted his memory. When asked what he prescribed to D.D., 
Respondent initially answered and then added, ``[a]nd probably Valium. 
So I mean, I cannot testify exactly to you, depending on the visit, but 
yes, probably over the course, and again, this was in what, 2007 and 
now we are [in] 2020, 13 years.'' Tr. 851; see also, Tr. 853 (``I mean, 
again, this was 13, 14 years ago.'').
    There were also examples when Respondent's memory appears to have 
failed him and he seems to have provided a speculative response. For 
example, when asked where he had documented prior treatments tried by 
S.B., he testified ``the record is probably missing these things, 
because maybe at the time of the documentation I did not feel that was 
crucial to be documented.'' Tr. 806; see also Tr. 870-71 (``Maybe I did 
not feel it was necessary because this is my patent, I am caring for 
the patient, I am doing the best job.''). Ultimately, Respondent's 
memory was demonstrated to be less than fully credible.
    It is for these reasons that I find that Respondent's testimony 
lacked credibility where it was inconsistent with, or provided 
additional information not included in, the patient files and 
documentary evidence in the record. I have credited Respondent's 
testimony where it was supported by and consistent with the documentary 
record. In light of Respondent's failure to document almost any of the 
relevant and necessary information required by the standard of care, 
most of Respondent's testimony cannot be credited.
    Ultimately, because of Respondent's extreme failure to document, 
Respondent's credibility has almost no

[[Page 30605]]

bearing on my final decision in this case. Even if I fully credited 
Respondent's testimony regarding his treatment of the individuals at 
issue and found that Respondent otherwise acted within the standard of 
care, his repeated and severe documentation failures and failure to 
accept responsibility would have still led me to revoke his 
registration. DEA has previously made clear that ``a physician may not 
expect to vindicate himself through oral representations at the hearing 
about his compliance with the standard of care that were not documented 
in appropriately maintained patient records.''\*RR\ Lesly Pompy, M.D., 
84 FR 57749, 57760 (2019).]
---------------------------------------------------------------------------

    \*RR\ Respondent's credibility also does not impact my findings 
based on Dr. Munzing's unrebutted expert testimony that Respondent's 
acts were beneath the standard of care. For example, Respondent does 
not contest that there was information missing from the patient 
files; he argues that the standard of care did not require him to 
document further. Similarly, Respondent does not contest that he 
prescribed the ``Holy Trinity'' and other combinations of dangerous 
drugs; he simply argues that the combinations were permitted by the 
standard of care. He does not contest the lack of urine drug 
screens; he argues his monitoring was proper under the standard of 
care. Here, Dr. Munzing is the unrebutted expert regarding the 
standard of care in California. Accordingly, Respondent's 
credibility issues aside, where Respondent and Dr. Munzing reached a 
different conclusion regarding whether uncontested acts were 
performed within the standard of care, I credit Dr. Munzing's 
opinion.
---------------------------------------------------------------------------

Dr. Munzing's Credibility

    Conversely, Dr. Munzing was fully credible. His opinion regarding 
the California standard of care was consistent with the relevant 
California regulations, the practitioner Guides issued by the 
California Medical Board and guidance issued by federal agencies, such 
as the CDC, FDA and DEA. His specific opinions that the Respondent's 
subject treatment fell below the minimum California standard of care 
were factually well-founded, and were based on clear edicts of the 
standard. As the Government notes in its PHB, the Respondent did not 
credibly contest Dr. Munzing's opinions regarding the specific 
parameters of the standard of care. [As Dr. Munzing's expert opinion 
was unrebutted regarding the application of the standard of care to the 
facts in this case, I defer to Dr. Munzing on all issues related to the 
standard of care.]
    Accordingly, I adopt each of Dr. Munzing's opinions regarding the 
Respondent's prescribing falling below the California standard of care.

Government's Burden of Proof and Establishment of a Prima Facie Case

    Based upon my review of each of the allegations brought by the 
Government, it is necessary to determine if it has met its prima facie 
burden of proving the requirements for a sanction pursuant to 21 U.S.C. 
824(a)(4). At the outset, I find that the Government has demonstrated 
and met its burden of proof in support of its allegations relating to 
the prescribing of controlled substances to patients S.B., M.B., B.C., 
J.C., D.D., J.M., and K.S.
Public Interest Determination: The Standard
    [Under Section 304 of the CSA, ``[a] registration . . . to . . . 
dispense a controlled substance . . . may be suspended or revoked by 
the Attorney General upon a finding that the registrant . . . has 
committed such acts as would render his registration under section 823 
of this title inconsistent with the public interest as determined by 
such section.'' 21 U.S.C. 824(a)(4).] \36\ Evaluation of the following 
factors have been mandated by Congress in determining whether 
maintaining such registration would be inconsistent with the ``the 
public interest'':
---------------------------------------------------------------------------

    \36\ [This text replaces the ALJ's original text and omits his 
original footnote for clarity.]
---------------------------------------------------------------------------

    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The [registrant's] experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The [registrant's] conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.
    21 U.S.C. 823(f). ``These factors are . . . considered in the 
disjunctive.'' Robert A. Leslie, M.D., 68 FR 15227, 15230 (2003).
    Any one or a combination of factors may be relied upon, and when 
exercising authority as an impartial adjudicator. Id. (citation 
omitted); David H. Gillis, M.D., 58 FR 37507, 37508 (1993); see also 
Morall v. DEA, 412 F.3d at 173-74; Henry J. Schwarz, Jr., M.D., 54 FR 
16422, 16424 (1989). Moreover, the Agency is ``not required to make 
findings as to all of the factors,'' Hoxie v. DEA, 419 F.3d 477, 482 
(6th Cir. 2005); see also Morall, 412 F.3d at 173. [Omitted for 
brevity.] The balancing of the public interest factors ``is not a 
contest in which score is kept; the Agency is not required to 
mechanically count up the factors and determine how many favor the 
Government and how many favor the registrant. Rather, it is an inquiry 
which focuses on protecting the public interest . . . .'' Jayam 
Krishna-Iyer, M.D., 74 FR 459, 462 (2009).
    The Government's case invoking the public interest factors of 21 
U.S.C. 823(f) seeks revocation of the Respondent's COR based primarily 
on conduct most aptly considered under Public Interest Factors Two, and 
Four.\37\
---------------------------------------------------------------------------

    \37\ [There is nothing in the record to suggest that a state 
licensing board made any recommendation regarding Respondent's 
prescribing practices (Factor One). Where the record contains no 
evidence of a recommendation by a state licensing board that absence 
does not weigh for or against revocation. See Roni Dreszer, M.D., 76 
FR 19434, 19444 (2011) (``The fact that the record contains no 
evidence of a recommendation by a state licensing board does not 
weigh for or against a determination as to whether continuation of 
the Respondent's DEA certification is consistent with the public 
interest.'') As to Factor Three, there is no evidence in the record 
that Respondent has a ``conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.'' 21 U.S.C. 823(f)(3). However, as Agency 
cases have noted, there are a number of reasons why a person who has 
engaged in criminal misconduct may never have been convicted of an 
offense under this factor, let alone prosecuted for one. Dewey C. 
MacKay, M.D., 75 FR 49956, 49973 (2010). Agency cases have therefore 
held that ``the absence of such a conviction is of considerably less 
consequence in the public interest inquiry'' and is therefore not 
dispositive. Id.] The Government does not allege Factor Five as 
relevant.
---------------------------------------------------------------------------

[Factors Two and Four: The Respondent's Experience in Dispensing 
Controlled Substances and Compliance With Applicable Laws Related to 
Controlled Substances *SS
---------------------------------------------------------------------------

    *\SS\ The ALJ evaluated Factors 2 and 4 in separate sections and 
I have combined and expanded on his analysis herein. This change 
also addresses the Government's Exceptions.
---------------------------------------------------------------------------

    According to the Controlled Substances Act's implementing 
regulations, a lawful controlled substance order or prescription is one 
that is ``issued for a legitimate medical purpose by an individual 
practitioner acting in the usual course of his professional practice.'' 
21 CFR 1306.04(a). The Supreme Court has stated, in the context of the 
CSA's requirement that schedule II controlled substances may be 
dispensed only by written prescription, that ``the prescription 
requirement . . . ensures patients use controlled substances under the 
supervision of a doctor so as to prevent addiction and recreational 
abuse . . . [and] also bars doctors from peddling to patients who crave 
the drugs for those prohibited uses.'' Gonzales v. Oregon, 546 U.S. 
243, 274 (2006).

[[Page 30606]]

    Respondent has demonstrated substantial experience as a licensed 
California doctor since 1998 who has been operating his own practice 
for over 20 years. Tr. 627-27. Regarding his experience, Respondent 
testified that he is ``an astute clinician who's been in the medical 
field for 41 years without a blemish to [his] reputation and career'', 
and points out that ``the Government seized more than 223 charts, . . . 
[but] they returned more than 200'' and only seven patients are at 
issue in the case. Tr. 648-49. The Agency assumes that Respondent has 
prescribed legally except where the Government has established that the 
prescriptions at issue violated the law. Here, Respondent's treatment 
of the patients as alleged in the OSC demonstrates that his prescribing 
practices fell short of the applicable standard of care.
    I found above that the Government's expert credibly testified as 
supported by California law and California's Guide to the Laws and 
Guidelines for Prescribing, that the standard of care in California for 
prescribing controlled substances requires a physician to, amongst 
other things, obtain a detailed medical history, perform and document a 
physical examination, assign a diagnosis, develop and document a 
customized treatment plan, monitor the patient including monitoring for 
medication compliance, and have complete and accurate records 
documenting all of the above steps in detail. See supra The Standard of 
Care for Prescribing Controlled Substances in California. I also found 
above, in accordance with Dr. Munzing's testimony, that Respondent 
issued each of the relevant controlled substance prescriptions at issue 
to the seven patients at issue without taking a proper medical or 
mental health history, conducting a sufficient physical and/or mental 
examination, making a supportable diagnosis, recording pain and 
functionality levels, documenting an appropriate treatment plan, 
documenting discussion of the risks of the prescribed controlled 
substances, monitoring for medication compliance, and/or resolving red 
flags of diversion. See supra Respondent's Improper Prescribing of 
Controlled Substances. I further found that each of the relevant 
prescriptions Respondent issued to the seven individuals were issued 
without a legitimate medical purpose, and outside the usual course of 
professional practice and beneath the standard of care in California. 
Accordingly, I find that Respondent violated 21 CFR 1306.04(a).
    Indeed, Respondent repeatedly issued prescriptions without 
complying with the applicable standard of care and state law, thus 
demonstrating that his conduct was not an isolated occurrence, but 
occurred with multiple patients. See Kaniz Khan Jaffery, 85 FR 45667, 
45685 (2020). For each of the seven individuals, Respondent failed to 
perform and document a physical and/or mental examination that was 
sufficient to inform a diagnosis for which the controlled substances at 
issue could be prescribed. Additionally, I have found that for each of 
the seven individuals, Respondent prescribed dangerous combinations of 
controlled substances without properly discussing their risks.
    Agency decisions highlight the concept that ``[c]onscientious 
documentation is repeatedly emphasized as not just a ministerial act, 
but a key treatment tool and vital indicator to evaluate whether the 
physician's prescribing practices are `within the usual course of 
professional practice.' '' Cynthia M. Cadet, M.D., 76 FR 19450, 19464 
(2011). DEA's ability to assess whether controlled substances 
registrations are consistent with the public interest is predicated 
upon the ability to consider the evidence and rationale of the 
practitioner at the time that he prescribed a controlled substance--
adequate documentation is critical to that assessment. See Kaniz-Khan 
Jaffery, 85 FR at 45686. Dr. Munzing testified that ``[t]rue, and 
accurate, and thorough documentation is vitally important for patient 
safety. It's also part of the standard of care.'' Tr. 917. But, as Dr. 
Munzing testified, ``practically none of the information that 
Respondent mentioned [during his testimony] was documented.'' Tr. 916. 
The extreme failures in Respondent's documentation extended to each of 
the seven individuals.
    DEA decisions have found that ``just because misconduct is 
unintentional, innocent, or devoid of improper motive, [it] does not 
preclude revocation or denial. Careless or negligent handling of 
controlled substances creates the opportunity for diversion and [can] 
justify the revocation of an existing registration . . .'' Bobby D. 
Reynolds, N.P., Tina L. Killebrew, N.P., & David R. Stout, N.P., 80 FR 
28643, 28662 (2015) (quoting Paul J. Caragine, Jr. 63 FR 51592, 51601 
(1998). ``Diversion occurs whenever controlled substances leave `the 
closed system of distribution established by the CSA . . . .' '' Id. 
(citing Roy S. Schwartz, 79 FR 34360, 34363 (2014)). In this case, I 
have found that Respondent issued controlled substance prescriptions 
without complying with his obligations under the CSA and California 
law. See George Mathew, M.D., 75 FR 66138, 66148 (2010)).
    With regard to California law, just as I found a violation of 21 
CFR 1306.04(a), I find that Respondent repeatedly issued controlled 
substance prescriptions what were not ``for a legitimate medical 
purpose by an individual practitioner acting in the usual course of his 
or her professional practice,'' in violation of Cal. Health & Safety 
Code Sec.  11153(a). California law also prohibits ``[p]rescribing, 
dispensing, or furnishing'' controlled substances ``without an 
appropriate prior examination.'' Cal. Bus. & Prof. Code Sec.  2242(a). 
Crediting Dr. Munzing's testimony, I have found above that the 
Respondent failed to conduct an appropriate prior physical and/or 
mental examination with regard to his prescribing to each of the seven 
individuals at issue, which I find violates Cal. Bus. & Prof. Code 
Sec.  2242(a). Finally, California law prohibits ``[r]epeated acts of 
clearly excessive prescribing, furnishing, dispensing, or administering 
of drugs.'' Cal. Bus. & Prof. Code Sec.  725(a). At the hearing Dr. 
Munzing unequivocally testified that Respondent's prescribing of high 
dosages of controlled substances to the seven individuals at issue, 
often in dangerous combinations, without a legitimate medical purpose 
constituted ``clear excessive prescribing.'' Tr. 621. Accordingly, I 
find that Respondent's prescribing also violated Cal. Bus. & Prof. Code 
Sec.  725(a). Crediting Dr. Munzing's testimony, I found above that 
Respondent acted outside the bounds of these laws with regard to his 
prescribing to each of the seven patients.] The Respondent has violated 
the charged federal and California regulations related to controlled 
substances. He has violated the California standard of care, as 
alleged. Thus [Factors Two and Four] weigh heavily in favor of 
revocation.

[Summary of Factors Two and Four and Imminent Danger

    As found above, the Government's case establishes by substantial 
evidence that Respondent issued controlled substance prescriptions 
outside the usual course of the professional practice. I, therefore, 
conclude that Respondent engaged in misconduct which supports the 
revocation of his registration. See Wesley Pope, 82 FR 14944, 14985 
(2017).
    For purposes of the imminent danger inquiry, my findings also lead 
to the conclusion that Respondent has ``fail[ed] . . . to maintain 
effective controls against diversion or otherwise comply with the 
obligations of a registrant'' under the CSA. 21 U.S.C.

[[Page 30607]]

824(d)(2). The substantial evidence that Respondent issued controlled 
substance prescriptions outside the usual course of the professional 
practice establishes ``a substantial likelihood of an immediate threat 
that death, serious bodily harm, or abuse of a controlled substance . . 
. [would] occur in the absence of the immediate suspension'' of 
Respondent's registration. Id. The risk of death was established in 
this case. There was ample evidence introduced to establish that 
combined use of opioid medicines with benzodiazepines or other drugs 
that depress the central nervous system has resulted in serious side 
effects including slowed or difficult breathing, comas, and deaths. GX 
22, at 1.
    Respondent testified that none of his patients had suffered any 
harm, such as overdose, as a result of his prescribing practices. Tr. 
792. However, I credit Dr. Munzing's repeated testimony that not only 
did Respondent prescribe ``incredibly high doses'' of individual 
dangerous drugs, but that many of the prescriptions at issue were 
issued in dangerous combinations including the ``holy trinity'' the 
``new holy trinity'' and other dangerous combinations as have been 
discussed. As Dr. Munzing testified, ``inherently [the controlled 
substances] each . . . have their own inherent dangers, but putting 
them together, it even escalated that much more dangerously, both for 
addictive issues for overdose and overdose death issues.'' Tr. 506; see 
also id. at 933-34. Even if I credit Respondent's testimony that none 
of his patients overdosed, I cannot rule out addiction issues. Two of 
the individuals at issue were prescribed Suboxone by other providers, 
which Dr. Munzing testified was typically prescribed for opioid use 
disorder or addiction, Tr. 943; and Respondent himself diagnosed almost 
all of the individuals at issue with opioid dependency. Accordingly, I 
cannot fully credit Respondent's testimony that none of them were 
harmed. Even the individuals' exposure to the increased risks caused by 
the dangerous combinations of the controlled substances Respondent 
prescribed could be harmful.
    Thus, as I have found above, at the time the Government issued the 
OSC/ISO, the Government had clear evidence of violations of law based 
on the many controlled-substance prescriptions Respondent issued 
without complying with the California standard of care. See supra 
Respondent's Improper Prescribing of Controlled Substances.]

[Sanctions *TT
---------------------------------------------------------------------------

    *\TT\ I am replacing portions of the Sanction section in the RD 
with preferred language regarding prior Agency decisions; however, 
the substance is primarily the same.
---------------------------------------------------------------------------

    Where, as here, the Government has met its prima facie burden of 
showing that Respondent's continued registration is inconsistent with 
the public interest, the burden shifts to the Respondent to show why he 
can be entrusted with a registration. Garrett Howard Smith, M.D., 83 FR 
18882, 18910 (2018) (collecting cases). Respondent has made no effort 
to establish that he can be entrusted with a registration.
    The CSA authorizes the Attorney General to ``promulgate and enforce 
any rules, regulations, and procedures which he may deem necessary and 
appropriate for the efficient execution of his functions under this 
subchapter.'' 21 U.S.C. 871(b). This authority specifically relates 
``to `registration' and `control,' and `for the efficient execution of 
his functions' under the statute.'' Gonzales v. Oregon, 546 U.S. 243, 
259 (2006). A clear purpose of this authority is to ``bar[ ] doctors 
from using their prescription-writing powers as a means to engage in 
illicit drug dealing and trafficking.'' Id. at 270.
    In efficiently executing the revocation and suspension authority 
delegated to me under the CSA for the aforementioned purposes, I review 
the evidence and arguments Respondent submitted to determine whether or 
not he has presented ``sufficient mitigating evidence to assure the 
Administrator that he can be trusted with the responsibility carried by 
such a registration.'' Samuel S. Jackson, D.D.S., 72 FR 23848, 23853 
(2007) (quoting Leo R. Miller, M.D., 53 FR 21931, 21932 (1988)). `` 
`Moreover, because ``past performance is the best predictor of future 
performance,'' ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th Cir. 
1995), [the Agency] has repeatedly held that where a registrant has 
committed acts inconsistent with the public interest, the registrant 
must accept responsibility for [the registrant's] actions and 
demonstrate that [registrant] will not engage in future misconduct.' '' 
Jayam Krishna-Iyer, 74 FR 459, 463 (2009) (quoting Medicine Shoppe, 73 
FR 364, 387 (2008)); see also Jackson, 72 FR at 23853; John H. Kennedy, 
M.D., 71 FR 35705, 35709 (2006); Prince George Daniels, D.D.S., 60 FR 
62884, 62887 (1995).
    The issue of trust is necessarily a fact-dependent determination 
based on the circumstances presented by the individual respondent; 
therefore, the Agency looks at factors, such as the acceptance of 
responsibility and the credibility of that acceptance as it relates to 
the probability of repeat violations or behavior, and the nature of the 
misconduct that forms the basis for sanction, while also considering 
the Agency's interest in deterring similar acts. See Arvinder Singh, 
M.D., 81 FR 8247, 8248 (2016).
    Here, the Respondent did not accept responsibility for any of his 
misconduct and instead excused his deficiencies and provided 
unsupportable explanations for why he should not have to comply with 
California's laws. For example, Respondent testified, ``[n]ow, is it 
deficient on my part not to have written all that [in the medical 
record]? I'm not going to say deficiency, but maybe it was, you know, 
inappropriate. Maybe I should have written that. But it is too much. . 
. . I don't have the luxury of writing every single thing that 
transpires.'' Tr. 808-09. In no way is this an unequivocal acceptance 
of responsibility. He excused his lack of documentation by claiming 
documentation was unnecessary because of his ``photographic memory,'' 
which was clearly not infallible, because he was a clinician with 41-
years of experience not a medical student, and because ``maybe'' he did 
not feel it was crucial information to document. Moreover, based on 
Respondent's testimony, I am not confident that he has any desire to 
improve his conduct in the future. He testified, ``I am not going to 
just say, okay, write in the chart I told the patient hello, they said 
hello, I said, okay, what did you have for breakfast? I am not going to 
document all that, there is no reason. It is just excessive [wreaking] 
havoc on the documentation . . . . [E]verything was addressed, 
everything was talked about, and every exam, every consent, everything 
was done by the book. I am a perfectionist. I am a perfectionist.'' Tr. 
871.]
    The following testimony by Respondent further supports my finding 
that Respondent failed to accept responsibility for his actions: 
``[S]o, [the Government is] just looking at the charts and some notes 
and immediately demonizing an astute clinician who's been in the 
medical field for 41 years without a blemish to my reputation and 
career. And now, I'm just portrayed as I'm just feeding the addicts; 
I'm just distributing his medications.'' Tr. 648-49.]
    Additionally, as I have found, the Respondent's testimony was less 
than credible [for a wide variety of

[[Page 30608]]

reasons,\*UU\ including] as evidenced by the Government's rebuttal 
evidence. The Respondent cannot credibly claim that he forgot the 
alarming discoveries he made as to Patients S.B. and J.M. when he 
monitored their CURES reports. The Respondent's failure to discuss this 
critical information in describing the justification for their 
treatment during testimony constitutes a significant lack of 
candor.\38\
---------------------------------------------------------------------------

    \*UU\ Respondent, in his Exceptions, argues that the ALJ's 
finding that the Respondent did not unequivocally accept 
responsibility was flawed because it was based entirely on the ALJ's 
credibility analysis, which as discussed above, was the subject to 
another exception. Resp Exceptions, at 5; Supra Credibility Analysis 
of the Respondent. My finding that Respondent failed to 
unequivocally accept responsibility is based primarily on 
Respondent's own testimony. He testified at times that ``maybe'' his 
documentation could be better, but never without excuses and 
equivocation. He refused to take any responsibility for his 
prescribing of high dosages of controlled substances or dangerous 
combinations of controlled substances. I find Respondent's second 
exception to be without merit.
    \38\ The degree of candor displayed by a registrant during a 
hearing is ``an important factor to be considered in determining . . 
. whether [the registrant] has accepted responsibility'' and in 
formulating an appropriate sanction. Hills Pharmacy, LLC, 81 FR 
49816, 49845 (2016) (citing Michael S. Moore, 76 FR 45867, 45868 
(2011)).
---------------------------------------------------------------------------

    I therefore find that the Respondent has not unequivocally accepted 
responsibility.\39\
---------------------------------------------------------------------------

    \39\ A registrant's acceptance of responsibility must be 
unequivocal, or relief for sanction is not available, and where 
there is equivocation any evidence of remedial measures is 
irrelevant. Daniel A. Glick, D.D.S., 80 FR 74800, 74801, 74810 
(2015).
---------------------------------------------------------------------------

Egregiousness and Deterrence

    [The Agency also looks to the egregiousness and extent of the 
misconduct, which are significant factors in determining the 
appropriate sanction. Garrett Howard Smith, M.D., 83 FR at 18910 
(collecting cases).] I find that the proven misconduct is egregious and 
that deterrence considerations weigh in favor of revocation. In 
addition to the myriad of prescribing events falling below the 
California standard of care, the proven misconduct involved being 
directly aware of two patients' apparent abuse or diversion of 
controlled substances, and being an apparent party to one of those 
patient's abuse or diversion. Respondent treated opioid abuse with 
hydrocodone which is not a legitimate medical purpose for prescribing 
hydrocodone and is outside the usual course of professional practice, 
therefore it was an illegal action under state regulations. Beyond 
that, his actions unnecessarily exposed his patients to dangerous 
levels of medication and to dangerous combinations of those 
medications.\*VV\
---------------------------------------------------------------------------

    \*VV\ Remaining analysis of egregiousness omitted for relevance.
---------------------------------------------------------------------------

    [In sanction determinations, the Agency has historically considered 
its interest in deterring similar acts, both with respect to the 
respondent in a particular case and the community of registrants. See 
Joseph Gaudio, M.D., 74 FR 10083, 10095 (2009); Singh, 81 FR at 8248. I 
find that considerations of both specific and general deterrence weigh 
in favor of revocation in this case.] Allowing the Respondent to retain 
his COR despite the proven misconduct would send the wrong message to 
the regulated community. Imposing a sanction less than revocation would 
create the impression that registrants can maintain DEA registration 
despite ongoing treatment below the California standard of care, 
knowledge and acquiescence of the abuse or diversion demonstrated 
herein, the repeated prescribing of dangerous combinations of 
medications, and the wholesale failure to maintain complete and 
accurate medical charts. Revoking the Respondent's COR communicates to 
registrants that DEA takes all failings under the CSA seriously and 
that severe violations will result in severe sanctions.
    [There is simply no evidence that Respondent's behavior is not 
likely to recur in the future such that I can entrust him with a CSA 
registration; in other words, the factors weigh in favor of revocation 
as a sanction.]

Recommendation

    Considering the entire record before me, the conduct of the 
hearing, and observation of the testimony of the witnesses presented, I 
find that the Government has met its burden of proof and has 
established a prima facie case for revocation. In evaluating Factors 
Two and Four of 21 U.S.C. 823(f), I find that the Respondent's COR is 
inconsistent with the public interest. Furthermore, I find that the 
Respondent has failed to overcome the Government's prima facie case by 
unequivocally accepting responsibility.
    Therefore, I recommend that the Respondent's DEA COR No. BR6081018 
should be revoked, and that any pending applications for modification 
or renewal of the existing registration, and any applications for 
additional registrations, be denied.

Mark M. Dowd,
U.S. Administrative Law Judge.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a) and 21 U.S.C. 823(f), I hereby revoke DEA Certificate of 
Registration No. BR6081018 issued to Fares Jeries Rabadi, M.D. Pursuant 
to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a) 
and 21 U.S.C. 823(f), I further hereby deny any other pending 
applications for renewal or modification of this registration, as well 
as any other pending application of Fares Jeries Rabadi, M.D., for 
registration in California. This Order is effective June 21, 2022.

Anne Milgram
Administrator.

[FR Doc. 2022-10592 Filed 5-18-22; 8:45 am]
BILLING CODE 4410-09-P