[Federal Register: July 14, 2008 (Volume 73, Number 135)]
[Notices] [Page 40380-40382] From the Federal Register Online
via GPO Access [wais.access.gpo.gov] [DOCID:fr14jy08-105]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Armando B. Figueroa, M.D.; Revocation of Registration
On November 14, 2007, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and
Immediate Suspension of Registration to Armando B. Figueroa,
M.D. (Respondent), of Washington, DC. The Order immediately
suspended and proposed the revocation of Respondent's DEA
Certificate of Registration, BF0128810, as a practitioner, on
the grounds that his continued registration was "inconsistent
with the public interest'' and "constitute[d] an imminent danger
to public health and safety.'' Show Cause Order at 1 (citing 21
U.S.C. 823(f) & 824(a)(4)).
The Show Cause Order alleged that Respondent had "repeatedly
issued controlled substance prescriptions to [two individuals,
S.S. and G.R.] for other than a legitimate medical purpose or
while acting outside the usual course of professional practice
in violation of 21
CFR 1306.04(a).'' Show Cause Order at 1. More specifically,
the Show Cause Order alleged that on October 17, 2007, law
enforcement authorities had searched a hotel room occupied by
S.S. and found 500 dosage units of oxycodone, 630 dosage units
of OxyContin, 400 dosage units of methadone, 180 dosage units of
diazepam, and 30 dosage units of phentermine. Id. at 2. The
Order also alleged that S.S. had in her possession eleven
undated prescriptions for OxyContin and three prescriptions for
methadone which Respondent had issued in the names of S.S. and
G.R., two additional prescriptions for Oxycontin issued by
Respondent on October 15, 2007 to S.S. and G.R., and "$7,475.00
in cash.'' Id. Finally, the Order alleged that S.S. told law
enforcement officers that she paid Respondent $100 for each
prescription he issued and that Respondent had not physically
examined her in years. Id.
Based on the above, I found that Respondent had "repeatedly
issued controlled substance prescriptions outside the usual
course of professional practice, and for other than a legitimate
medical purpose, [and was] thereby facilitating the diversion of
controlled substances.'' Id. Accordingly, I further found that
Respondent's "continued registration during the pendency of
these proceedings would constitute an imminent danger to public
health and safety,'' and ordered the immediate suspension of his
registration. Id. (citing 21 U.S.C. 824(d)).
On November 14, 2007, DEA Investigators served the Order to
Show Cause and Immediate Suspension \1\ by leaving it at
Respondent's office and registered location. Later that same
day, Respondent telephoned a DEA Investigator to complain about
the suspension of his registration. Subsequently, DEA
Investigators learned that on the days that Respondent worked at
his Washington office, Respondent stayed at his daughter's
house. Accordingly, on November 29, 2007, DEA Investigators also
delivered a copy of the Order to Show Cause and Immediate
Suspension to Respondent's daughter at her residence.
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\1\ The Order also fully explained that
Respondent had a right to a hearing, the scheduled date of the
hearing, the procedures for requesting a hearing, and that his
failure to timely request a hearing would be deemed a waiver
of his right. Show Cause Order at 2-3.
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Since the service of the Order to Show Cause and Immediate
Suspension, neither Respondent, nor any one purporting to
represent him, has requested a hearing. Because (1) more than
thirty days have passed since the Order was served, and (2) no
request for a hearing has been received, I conclude that
Respondent has waived his right to a hearing. See 21
CFR 1301.43(d). I
[[Page 40381]]
therefore enter this Final Order without a hearing based on
relevant material contained in the investigative file, see id.
1301.43(e), and make the following findings.
Findings
Respondent is the holder of DEA Certificate of Registration,
BF0128810, which authorized him (before I suspended the
registration) to handle controlled substances in schedules II
through V as a practitioner at his registered location in
Washington, DC. Respondent's registration does not expire until
September 30, 2010.
During 2007, a DEA Investigator (DI) acquired physician
prescribing profiles from several Washington, DC area
pharmacies. The profiles showed that Respondent was prescribing
large quantities of schedule II narcotic controlled substances
including Percocet and OxyContin (80 mg), both of which contain
oxycodone. 21 CFR 1308.12(b)(1).\2\ Several pharmacists advised
that a large number of young and seemingly healthy individuals
were presenting the prescriptions, that these persons always
paid cash for the prescriptions, and that they were traveling
large distances to fill the prescriptions.
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\2\ These drugs are typically prescribed to
persons in severe pain but are also highly abused.
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In April 2007, an Inspector with the South Carolina Bureau of
Drug Control notified the DI that G.R. and S.S., who were
residents of Conway, South Carolina and who lived together, were
presenting to local pharmacies a large number of prescriptions
for OxyContin and Percocet that were issued by Respondent. The
Inspector related that when local pharmacists called Respondent
to verify the prescription, Respondent would tell them to fill
the prescription without even waiting to hear the patient's name
or the drug that was prescribed. Moreover, most of the
prescriptions were paid for with cash. The Inspector further
advised that she had obtained from area pharmacies approximately
100 OxyContin prescriptions which Respondent had issued to S.S.
between December 2005 and September 2006.
The DEA Investigator further determined that S.S. and G.R.
had previously lived in La Plata, Maryland, but had moved to
South Carolina in 2001. S.S. would nonetheless make the
twelve-hour round trip from South Carolina to Washington
periodically to obtain prescriptions from Respondent. The
investigation further showed that while unemployment taxes had
not been paid on either S.S. or G.R. since 2001, between January
17 and October 16, 2007, S.S. and G.R. had paid a total of more
than $42,000 in cash to various pharmacies in South Carolina and
Maryland to obtain oxycodone (80 mg), OxyContin (80 mg),
oxycodone/ acetaminophen (5/325 mg) and methadone (40 mg), based
on prescriptions issued by Respondent. The record further
establishes that OxyContin (80 mg) has a street value of $70 to
$80 a pill and that the total street value of the OxyContin
prescribed by Respondent to S.S. and G.R. during this period was
between $352,800 and $403,200.
On October 16, 2007, a Waldorf, Maryland pharmacy contacted
the DI and informed her that S.S. had presented a prescription
for ninety tablets of OxyContin (80 mg) issued by Respondent.
The DI asked the pharmacist not to fill the prescription and to
tell S.S. to come back later.
The DI then contacted three other Waldorf pharmacies which
S.S. and G.R. had previously used. At each of the pharmacies,
the DI was told that S.S. had presented a prescription issued by
Respondent for 90 tablets of OxyContin (80 mg). At two of the
pharmacies, S.S. had also told the pharmacists that she would
pay cash, notwithstanding that the cost of the prescription was
in excess of $1,000, and would pick up the prescription the
following day. At the third pharmacy, S.S. had already picked up
the prescription for which she paid $1,134 in cash.
Thereafter, the DI requested the assistance of narcotics
officers with the Charles County Sheriff's Office to conduct
surveillance of S.S. The Detectives agreed and went to one of
the pharmacies. There, they observed S.S. arrive in a vehicle
with South Carolina license plates and enter the pharmacy. The
Detectives observed S.S. as she picked up the prescription and
paid for it with $985.70 in cash. The Detectives then followed
S.S. to a local hotel, which she entered. The Detectives
contacted the hotel and determined that S.S. was scheduled to
depart on October 19. The Detectives were also told that S.S.
had paid cash for her room.
The next day, the Detectives obtained warrants to search
S.S.'s hotel room and vehicle, as well as to arrest her on state
charges of possession of Oxycontin with intent to distribute and
possession of a control dangerous substance. Shortly thereafter,
the Detectives executed the search warrants and arrested S.S.
The Detectives found that S.S had in her possession $7,475 in
cash, 500 dosage units of oxycodone/acetaminophen (5/325 mg),
630 dosage units of OxyContin (80 mg), 180 dosage units of
diazepam (10 mg), 30 dosage units of phentermine (37.5 mg), six
dosage units of phentermine (30 mg), and 400 dosage units of
methadone. Moreover, S.S. had in her possession seventeen
prescriptions from Respondent, including fifteen which were
undated. Nine of the prescriptions were in S.S.'s name; the
other eight were written in G.R.'s name.
Seven of S.S.'s prescriptions (including six of the undated
ones) were for 90 tablets of OxyContin (80 mg); the other two
were for 120 tablets of methadone (40 mg). Five of G.R.'s
prescriptions (including four of the undated ones) were for 90
tablets of OxyContin (80 mg), another prescription was for 180
tablets of OxyContin (80 mg), and one was for 90 tablets of
methadone (40 mg).\3\
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\3\ The remaining prescription issued to G.R.
was for a non- controlled drug.
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During the search, the Detectives found in the trash numerous
prescription labels which had been torn off the bottles. They
also found a piece of paper which according to S.S., was a
shopping list of the prescriptions that she had sought from
Respondent.
During a post-arrest interview, S.S. stated that Respondent
charges $100 cash for each prescription, that she had purchased
as many as twenty prescriptions from him at a time, that the
prescriptions were not dated, and that Respondent had not
physically examined her in years. She also stated that she could
not remember the last time Respondent was examined by Respondent
and that G.R. rarely traveled to Washington, DC. S.S. further
stated that she would call Respondent to order the prescriptions
and that she would pay Respondent's assistant; S.S. did not,
however, obtain a receipt. S.S. also stated that Respondent was
giving her methadone because she was trying to wean herself off
of OxyContin.
Discussion
Section 304(a) of the Controlled Substances Act provides that
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 under such section.'' 21
U.S.C. 824(a)(4). 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.
[[Page 40382]]
(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).\4\
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\4\ Under section 304(d), the "[t]he
Attorney General may, in his discretion, suspend any
registration simultaneously with the institution of
proceedings under this section, in cases where he finds that
there is an imminent danger to the public health or safety.''
21 U.S.C. 824(d).
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Having considered all of the factors, I conclude that the
evidence under factors two and four is dispositive and
establishes that Respondent has committed acts which render his
continued registration "inconsistent with the public interest.''
21 U.S.C. 824(a)(4). Accordingly, Respondent's registration will
be revoked.
Factors Two and Four--Respondent's Experience in
Dispensing Controlled Substances and Record of Compliance With
Applicable Laws
Under DEA regulations, a prescription for a controlled
substance is not "effective'' unless it 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). This regulation further provides that "an
order purporting to be a prescription issued not in the usual
course of professional treatment * * * is not a prescription
within the meaning and intent of [21
U.S.C. 829] and * * * the person issuing it, shall be
subject to the penalties provided for violations of the
provisions of law related to controlled substances.'' Id. As the
Supreme Court recently explained, "the prescription requirement
* * * ensures patients use controlled substances under the
supervision of a doctor so as to prevent addiction and
recreational abuse. As a corollary, [it] also bars doctors from
peddling to patients who crave the drugs for those prohibited
uses.'' Gonzales v. Oregon, 126 S.Ct. 904, 925 (2006) (citing
Moore, 423 U.S. 122, 135 (1975)).
The evidence in this case overwhelmingly demonstrates that
Respondent used his prescribing authority to engage in the
criminal distribution of controlled substances in violation of 21
U.S.C. 841. The statements of S.S. and the evidence
uncovered in the course of the investigation make plain that
Respondent was engaged in out-and-out drug pushing and not the
legitimate practice of medicine.\5\
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\5\ Given the evidence, this is not a case
which requires either expert testimony to support findings
regarding whether Respondent prescribed pursuant to a valid
doctor-patient relationship or an analysis of state standards
pertaining to the practice of medicine. In short, Respondent's
conduct does not remotely resemble the legitimate practice of
medicine.
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More specifically, at a single visit, Respondent issued
multiple prescriptions for highly abused schedule II controlled
substances, which were undated and thus in violation of DEA
regulations for this reason as well. See 21
CFR 1306.05.\6\ Respondent did not examine S.S.; he also
issued multiple prescriptions in the name of G.R., without even
seeing him. Finally, S.S. would purchase from Respondent as many
as twenty prescriptions at a time and pay cash for which no
receipt was provided. In short, Respondent's conduct was not
remotely consistent with the legitimate practice of medicine.
Rather, it was drug pushing.
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\6\ The 80 mg strength is the second
strongest dosage unit of Oxycodone and typically has a street
value of $80 per tablet.
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I thus conclude that Respondent's experience in dispensing
controlled substances and his record of repeatedly violating
Federal law and regulations make clear that his continued
registration "is inconsistent with the public interest.'' 21
U.S.C. 823(f). Finally, for the same reasons which led me to
find that Respondent posed "an imminent danger to the public
health or safety,'' id. Sec. 824(d), I conclude that the public
interest requires that his registration be revoked effective
immediately and that any pending applications be denied. See 21
CFR 1316.67.
Order
Pursuant to the authority vested in me by 21
U.S.C. 823(f) & 824(a),
as well as 28 CFR 0.100(b) & 0.104, I hereby order that DEA
Certificate Registration, BF0128810, issued to Armando B.
Figueroa, M.D., be, and it hereby is, revoked. I further order
that any pending application for renewal or modification of the
registration be, and it hereby is, denied. This order is
effective immediately.
Dated: July 2, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-15922 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).
