[Federal Register: July 14, 2008 (Volume 73, Number 135)]
[Notices] [Page 40378-40380] From the Federal Register Online
via GPO Access [wais.access.gpo.gov] [DOCID:fr14jy08-104]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Randall Relyea, D.O.; Denial of Application
On July 25, 2007, the Deputy Assistant Administrator, Office
of Diversion Control, Drug Enforcement Administration, issued an
Order to Show Cause to Randall Relyea, D.O. (Respondent), of
Price, Utah. The Show Cause Order proposed the revocation of
Respondent's DEA Certificate of Registration, BR8899809, as a
practitioner, on the ground that Respondent's "continued
registration is inconsistent with the public interest.'' Show
Cause Order at 1.
The Show Cause Order specifically alleged that in February
2007, Respondent had engaged in a scheme to have one of his
patients obtain narcotic controlled substances for his personal
use. Show Cause Order at 1. The Show Cause Order also alleged
that during the previous year, Respondent had engaged in "a
similar scheme * * * to acquire narcotics,'' and that Respondent
had been charged with multiple felony narcotics offenses under
Utah law with respect to both schemes. Id.
The Show Cause Order further alleged that in 1999, Respondent
had been "charged with felonies [under Missouri law] involving
[his] obtaining hydrocodone under a fictitious name.'' Id. The
Show Cause Order alleged that while these charges were later
reduced to misdemeanors and that Respondent had surrendered his
DEA registration, he had "continued to abuse narcotics at levels
indicating recurrent or habitual use.'' Id.
The Show Cause Order, which notified Respondent of his right
to a hearing or to submit a statement in lieu of a hearing, was
served on him by certified mail to his registered location as
evidenced by the signed return receipt card.\1\ Since that time,
neither Respondent nor his counsel has requested a hearing on
the allegations of the Show Cause Order. Because more than
thirty days have passed since service of the Show Cause Order
and neither Respondent nor his counsel has requested a hearing,
I conclude that Respondent has waived his right to a hearing.
See 21
CFR 1301.43(d). I therefore issue this Decision and Final
Order without a hearing based on relevant material contained in
the investigative file and make the following findings.
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\1\ The Return Receipt Card does not
indicate the date of delivery. The card does, however,
indicate that DEA received the card back on August 13, 2007.
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Findings
Respondent was the holder of DEA Certificate of Registration,
BR8899809, which authorized him to handle controlled substances
in schedules II through V as a practitioner. Respondent's
registration expired on April 30, 2007, and Respondent did not
file a renewal application until May 30, 2007. I thus find that
Respondent did not file a timely renewal application as required
to maintain his registration and thus does not have a current
registration with the Agency. See 5 U.S.C. 558(c). Respondent's
renewal application is, however, pending before the Agency.
Respondent previously held another DEA registration. In December
1999, however, Respondent was arrested in Brentwood, Missouri,
and charged with fraudulently attempting to obtain Vicodin Tuss,
a schedule III controlled substance which contains hydrocodone.
Respondent was allowed to plead guilty to the misdemeanor charge
of engaging in deceptive business practices and received a
suspended sentence. On November 22, 2000, Respondent also
surrendered his DEA registration.\2\
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\2\ On May 22, 2004, Respondent applied for
a new registration. On his application, Respondent disclosed
the criminal proceeding, his prior drug abuse, and that he had
surrendered his earlier registration. Respondent also stated
that he had completed inpatient rehab and a four-year
monitoring program. Upon determining that the State of Utah
has issued Respondent both a medical license and a controlled
substance license, Respondent was granted a new registration.
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According to the investigative file, at approximately 1 p.m.
on February 8, 2007, Respondent contacted one of his patients
and asked her to assist him in obtaining a narcotic controlled
substance for his wife, who he claimed had torn her anterior
cruciate ligament (ACL). Respondent asserted that other area
physicians were out to get him and that he therefore needed to
write the prescription in the patient's name. Several hours
later, Respondent met with the patient at her place of
employment (an Albertson's supermarket) and gave her a
prescription for 90 pills of oxycodone 30 mg and $100 to pay for
the prescription.
Later that evening, Respondent returned to the supermarket to
obtain the prescription. The patient told
[[Page 40379]]
Respondent that she did not like the situation and was
scared. Respondent told her that nothing would happen. The
patient then gave the oxycodone and $94 to Respondent. The
patient again told Respondent that she did not feel the
situation was right; Respondent told her "nothing happened.''
After a brief conversation, Respondent left.
Nine days later, another police officer received information
regarding a July 2006 incident involving Respondent and another
of his patients. According to the investigative file, Respondent
had performed shoulder surgery on this patient and issued her a
prescription for 60 pills of Percocet 10/650, a schedule II
controlled substance which contains oxycodone. When the patient
became ill taking the Percocet, she saw Respondent to get a
prescription for a different drug.
During this visit, Respondent told the patient that the
pharmacy had given her the wrong pills. Respondent took the
Percocet from the patient and gave her a new prescription for a
smaller dose.
Subsequently, the patient asked the pharmacy about the
alleged error in the prescription. The pharmacy told her that
the error was on Respondent's part. The pharmacy also told her
that the Percocet should have been returned to the pharmacy and
that the return should have been documented. The pharmacy,
however, had no documentation of the Percocet having been
returned.
Moreover, according to the investigative file, on two
separate dates in December 2006, Respondent induced a
physician's assistant (PA) student to fill prescriptions for 90
tablets of oxycodone (30 mg) and 120 tablets of oxycodone (30
mg). Respondent wrote the first prescription in his wife's name
and represented to the student that his wife had dislocated her
patella tendon. The student filled the prescription and gave it
to Respondent.
The second incident occurred on the last day of the student's
rotation. During a conversation in which Respondent and the
student discussed the possibility of his employing her,
Respondent wrote out a prescription and gave it to the student.
Upon seeing the prescription, the student remarked "Oxycodone?''
Respondent told the student to "chill out'' because it was
Percocet with Tylenol. The student then commented about the 30
mg strength of the pills; Respondent stated: "you'd think if you
double the strength you get double the effect, but that isn't
the case at all.'' When the student also commented about the
number of pills (120), Respondent stated that "it would last him
all year.'' The student proceeded to fill the prescription and
provided the oxycodone to Respondent.
In late February 2007, Respondent approached another PA
student stating that his wife had injured her ACL, and that he
was trying to get her in to see a physician. Over the next
several days, Respondent kept telling the student that his wife
was in pain and that he was frustrated because he had forgotten
to ask one of his colleagues to write a prescription. Respondent
also stated that because of bad feelings, he did not believe
that other physicians would write his wife a prescription for a
pain medication. Respondent eventually induced the student to
fill a prescription for 60 tablets of oxycodone (30 mg).
Local law enforcement subsequently interviewed a nurse who
worked in the recovery room at a hospital where Respondent
performed surgeries. In late July 2006, Respondent approached
her, represented that he had severe knee pain, and asked her to
fill a prescription for Percocet. The nurse agreed. Respondent
wrote the prescription, which was for 90 tablets of Percocet (10
mg), in her name. The nurse filled the prescription and provided
the drugs to Respondent. Over the ensuing seven months,
Respondent used additional scams to induce her to fill
prescriptions for him such as stating that he had back pain, and
that his wife had torn her ACL and that he could not find a
doctor to perform surgery on her. On other occasions, Respondent
told the nurse that he had wrecked his vehicle and could barely
walk. He also told her that his wife's prescription had been
stolen or lost down the drain.
Using this person, Respondent obtained a total of fifteen
prescriptions for either Percocet (10 mg) or Oxycodone (30
mg).\3\ The size of the prescriptions was either 90 or 120
tablets.
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\3\ In one instance, the strength of the
Oxycodone was 15 mg.
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On March 14, 2007, Respondent was arrested. Thereafter, on
May 9, 2007, the Carbon County Attorney filed six informations
against Respondent. As relevant here, the County Attorney
charged Respondent with numerous counts of distributing or
arranging the distribution of a controlled substance, a felony
offense under Utah law. See Utah Code Ann. Sec. 58-37-8(1)(a)(ii).
The state criminal proceedings remain pending as of the date of
this Order.\4\
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\4\ The investigative file also includes a
copy of the report of a random drug test performed on
Respondent on March 28, 2006. According to the report,
Respondent tested positive for both hydrocodone and oxycodone;
the levels of both drugs exceeded 5000 ng./ml. A document,
which is dated March 30, 2007, and which is attached to the
report states: "excessively high quantitative random urine
values do not reflect one time use, occasional use, or one
time therapeutic use. Such values are consistent with long
standing use and habituation.'' While the investigative file
establishes that these documents were provided by a hospital
where Respondent performed surgeries, the file does not
establish the source of the statement. Accordingly, while I
accept the results of the drug test, which showed that both
hydrocodone and oxycodone were present in Respondent, I do not
rely on the statement as to what the quantitative values
establish.
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Discussion
Section 303(f) of the Controlled Substances Act provides that
"[t]he Attorney General may deny an application for [a
practitioner's] registration if he determines that the issuance
of such registration would be inconsistent with the public
interest.'' 21
U.S.C. Sec. 823(f). In making the public interest
determination, the Act requires the consideration of the
following factors:
(1) The recommendation of the appropriate State licensing
board or professional disciplinary authority.
(2) The applicant's experience in dispensing * * *
controlled substances.
(3) The applicant's conviction record under Federal or
State laws relating to the manufacture, distribution, or
dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local
laws relating to controlled substances.
(5) Such other conduct which may threaten the public health
and safety.
Id.
"[T]hese factors are * * * considered in the disjunctive.''
Robert A. Leslie M.D., 68 FR 15227, 15230 (2003). I "may rely on
any one or a combination of factors, and may give each factor
the weight [I] deem[] appropriate in determining whether a
registration should be revoked.'' Id. Moreover, I am "not
required to make findings as to all of the factors.''Hoxie v.
DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also Morall v. DEA,
412 F.3d 165, 173-74 (D.C. Cir. 2005).
Having considered the entire record and all of the factors, I
conclude that Respondent's experience in dispensing controlled
substances (factor two) and his record of non-compliance with
applicable Federal law (factor four) demonstrate that granting
Respondent's application for a new registration would be "inconsistent
with the public interest.'' 21 U.S.C. 823(f).\5\ Accordingly,
Respondent's application will be denied.
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\5\ In light of my findings with respect to
factors two and four, I conclude that it is unnecessary to
make findings with respect to the remaining factors.
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Respondent's experience in dispensing controlled substances
is
[[Page 40380]]
characterized by his criminal behavior in issuing numerous
fraudulent prescriptions for such highly abused controlled
substances as oxycodone and Percocet. While the record contains
no information as to whether under Utah law and regulations, a
physician can ever lawfully prescribe a controlled substance to
a family member or himself, it is clear that Respondent issued
numerous fraudulent prescriptions because the prescriptions were
written in the names of persons who had no medical need for the
controlled substance, and who were, after filling the
prescription, to turn the drugs over to him.
Moreover, the stories that Respondent told to induce others
to assist him were so implausible (e.g., that no doctor would
write a prescription for, or perform surgery on, his wife) or
were consistent with classic scams engaged in by persons who
seek controlled substances for illicit purposes (e.g., that his
wife's prescription had been stolen or lost down the drain),
that it is clear that the prescriptions were written with
fraudulent intent. See Randi M. Germaine, 72 FR 51665, 61666
(2007) (noting expert testimony regarding use of scams by drug
abusers seeking additional drugs such as early refill attempts
and claiming that one's drugs have been stolen).
This conduct violated Federal law. See
21 U.S.C. 843(a)(3) (rendering it "unlawful for any person
knowingly or intentionally * * * to acquire or obtain possession
of a controlled substance by misrepresentation, fraud, forgery,
deception, or subterfuge''); id. Sec. 844(a) ("It shall be
unlawful for any person knowingly or intentionally to possess a
controlled substance unless such substance was obtained
directly, or pursuant to a valid prescription or order from a
practitioner, while acting in the course of his professional
practice, or except as otherwise authorized by this subchapter *
* *.''). Indeed, it is particularly disturbing that Respondent
was aided in his schemes by several health care professionals.
There is also substantial evidence that Respondent was
personally abusing the drugs he obtained through his various
schemes. The urinalysis results indicated that Respondent was
using both hydrocodone and oxycodone. Moreover, when one of the
PA students commented about his seeking oxycodone, Respondent
told her to "chill out,'' because it was Percocet with Tylenol.
Moreover, when the student commented about the strength of the
pills, Respondent stated that "you'd think if you double the
strength you get double effect, but that isn't the case,'' and
also said that the 120 pills "would last him all year.'' It is
thus clear that Respondent was once again abusing controlled
substances.
Respondent's experience in dispensing controlled substances
and his record of non-compliance with Federal controlled
substance laws is thus characterized by his issuance of numerous
fraudulent prescriptions and his personal abuse of controlled
substances. These findings amply demonstrate that Respondent
cannot be entrusted with a new registration and that granting
his application would be "inconsistent with the public
interest.'' 21 U.S.C. 823(f).
Order
Pursuant to the authority vested in me by 21
U.S.C. 823(f), as well as 28 CFR 0.100(b) & 0.104, I
order that the application of Randall Relyea, D.O., for a DEA
Certificate of Registration as a practitioner be, and it hereby
is, denied. This order is effective August 13, 2008.
Dated: June 27, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-15923 Filed 7-11-08; 8:45 am] BILLING CODE
4410-09-P
NOTICE: This is an
unofficial version. An official version of these publications may be obtained
directly from the Government Printing Office (GPO).
