Registrant Actions - 2011
[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Notices]
[Pages 60889-60900]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25227]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 09-65]
Stephen L. Reitman, M.D.; Decision and Order
On July 20, 2010, Administrative Law Judge Gail A. Randall issued
the attached recommended decision.\1\ Neither party filed exceptions to
the ALJ's decision.
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\1\ All citations to the ALJ's decision are to the slip opinion
as issued by her.
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Having reviewed the entire record, I have decided to adopt the
ALJ's rulings, findings of fact, conclusions of law,\2\ and recommended
order except as discussed below. Accordingly, while Respondent's
registration will be continued, I conclude that the record requires
that several conditions be placed on it to adequately protect the
public interest.
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\2\ The ALJ found that Respondent violated California law by
obtaining controlled substances from a distributor "while
concealing the fact that he was dispensing to himself." ALJ at 33
(citing Cal. Health & Safety Code 11173). The ALJ did not, however,
cite any decisional law holding that conduct similar to that engaged
in by Respondent violates this provision. See id. Moreover, there is
no evidence establishing that Moore Medical required Respondent to
make any disclosure as to his purpose in purchasing the drugs. Cf.
Lovejoy v. AT&T Corp., 92 Cal.App.4th 85, 96 (2001) (noting that
tort of concealment requires that "the defendant must have been
under a duty to disclose the fact to the plaintiff"). I therefore
do not adopt this finding. However, the evidence does establish the
other violations of the CSA and State law as discussed by the ALJ.
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At the time of the hearing, the Medical Board of California (MBC)
had filed an accusation against Respondent. ALJ at 31. However, the MBC
did not issue a final decision in the matter until December 20, 2010,
which became effective on January 19, 2011. In re Stephen Lee Reitman,
M.D., Decision at 1 (Cal. Med. Bd. Dec. 20, 2010). I take official
notice of the MBC's Decision and the Stipulated Settlement and
Disciplinary Order.\3\ Therein, the Board revoked Respondent's medical
license but stayed the revocation and placed him on probation for five
years subject to numerous conditions. Stipulated Settlement, at 4. The
conditions include, inter alia, that Respondent "maintain a record of
all controlled substances ordered, prescribed, dispensed, administered,
or possessed by" him, that he abstain "from the personal use or
possession of controlled substances" except as "to medications
lawfully prescribed to [him] by another practitioner for a bona fide
illness or condition" and that he "notify the Board" within fifteen
calendar days of receiving any such prescription, and that he take both
a prescribing practices course and an ethics course. Id. at 4-10.
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\3\ Under the Administrative Procedure Act (APA), an agency
"may take official notice of facts at any stage in a proceeding-
even in the final decision." U.S. Dept. of Justice, Attorney
General's Manual on the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and
DEA's regulations, Respondent is "entitled on timely request, to an
opportunity to show to the contrary." 5 U.S.C. 556(e); see also 21
CFR 1316.59(e). Respondent can dispute the facts of which I take
official notice by filing a properly supported motion for
reconsideration within twenty days of service of this Order, which
shall begin on the date it is mailed.
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Most significantly, the Order requires that Respondent, at his own
expense, "contract with a laboratory or service--approved in advance
by the Board or its designee--that will conduct random, unannounced,
observed, urine testing a maximum of four times each month." Id. at 5.
Moreover, "[t]he contract shall require results of the urine tests to
be transmitted by the laboratory or service directly to [the] Board or
its designee
[[Page 60890]]
within four hours of the results becoming available" and that
Respondent's "[f]ailure to maintain this laboratory or service during
the period of probation is a violation of [his] probation." Id. at 5-
6. Finally, the Order provides that it is a violation of Respondent's
probation if he "[f]ail[s] to submit to or comply with the time frame
for submitting to, or fail[s] to complete the required biological fluid
testing." Id. at 5-6.
In her decision, the ALJ rejected the Government's contention that
Respondent's registration should be revoked because he has been sober
for only eleven months and that this is an insufficient period to
demonstrate that he is not likely to relapse. ALJ at 35 (citing Gov.
Br. at 9-10). In so ruling, the ALJ reasoned that "'[t]he paramount
issue is not how much time has elapsed since [the Respondent's]
unlawful conduct, but rather, whether during that time [the] Respondent
has learned from past mistakes and has demonstrated that he would
handle controlled substances properly if entrusted with a DEA
registration.'" Id. (quoting Leonardo v. Lopez, M.D., 54 FR 36915
(1989)). However, none of the cases which have invoked this principle
involved circumstances similar to those at issue here, where, a
registrant has abused controlled substances for seven years and has
demonstrated his sobriety for only one year. See Lopez, 54 FR 36915;
see also Robert L. Dougherty, M.D., 76 FR 16823 (2011); Robert A.
Leslie, M.D., 64 FR 25908 (1999); Mary M. Miller, M.D., 63 FR 71157
(1998); John Porter Richards, D.O., 61 FR 13878 (1996); James W. Shore,
M.D., 61 FR 6262 (1996).
That being said, I agree with the ALJ's findings that Respondent
has accepted responsibility for his misconduct and that he has
undertaken substantial efforts at rehabilitation. Indeed, even the
Government acknowledges that Respondent had taken "various and
comprehensive steps * * * toward rehabilitation" and that his efforts
were "entered into voluntarily, which no doubt demonstrates a
commitment to staying clean and sober." Gov. Br. at 9. However, as the
Government noted in its brief, according to the evidence adduced at the
hearing, under the terms of Respondent's contract with his treatment
program, the program is not obligated to report any relapse to either
the MBC or this Agency.\4\ Id; see also Tr. 91. Given the limited time
for which Respondent has demonstrated his sobriety (on the record of
the hearing), such an arrangement is manifestly inadequate to support
the continuation of a registration. Thus, I am not persuaded by the
ALJ's reasoning that "under the particular circumstances of this case,
nine months is not such a short recovery period that it should serve as
grounds for revocation." ALJ at 36.
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\4\ Respondent did not introduce into evidence a copy of his
treatment contract.
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However, as found above, subsequent to the closing of the record,
Respondent entered into a Stipulated Settlement and Disciplinary Order
with the MBC which provides for random biological fluid testing and
which requires that the results be reported directly to the MBC.
Moreover, since the record closed, additional time has passed during
which Respondent has been subject to random biological fluid testing,
and during this period, no evidence of a relapse has been presented to
this Office.
These developments, when considered along with Respondent's strong
showing as to his acceptance of responsibility, his efforts at
rehabilitation, as well as the lack of evidence that he harmed anyone
other than himself or diverted drugs to others, supports the conclusion
that Respondent's continued registration would not "be inconsistent
with the public interest." \5\ 21 U.S.C. 823(f). Accordingly,
Respondent's pending renewal application will be granted. However, to
adequately protect the public interest, Respondent's registration will
be subject to the conditions set forth below, which shall remain in
effect until the same date as the State's probation expires. Any
violation of these conditions constitutes an act which renders his
registration "inconsistent with the public interest," 21 U.S.C.
824(a)(4), and subject to proceedings under that provision.
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\5\ In her discussion of whether Respondent had accepted
responsibility, the ALJ explained that "[p]ast DEA cases have
involved practitioners whose registrations were either not revoked
or their applications were not denied despite more reprehensible
conduct than [Respondent's] self-prescribing." ALJ at 37. While I
agree that in Judy L. Henderson, 65 FR 5672 (2000), and Mary
Thomson, M.D., 65 FR 75969 (2000), the registrants committed acts
which are arguably more egregious than those committed by
Respondent, I do not see any meaningful difference between the
conduct committed by the registrant in Jimmy H. Conway, Jr., M.D.,
64 FR 32271 (1999), and Respondent. As for her discussion of Robert
G. Hallermeier, M.D., 62 FR 26818 (1997), suffice it to say that
were a case with similar facts presented to me, that individual
would receive a sanction that more appropriately reflected the grave
harm which that registrant caused the public and the Agency's
interest in deterring similar misconduct. See Joseph Gaudio, M.D.,
74 FR 10083, 10094 (2009) (citing Southwood Pharmaceuticals, Inc.,
72 FR 36487, 36504 (2007)). See also Butz v. Glover Livestock
Commission Co., Inc., 411 U.S. 182, 187-88 (1973).
Finally, the ALJ's discussion that the applicant in John Porter
Richards, D.O., 61 FR 13878 (1996), "continued to maintain that he
had not committed the crimes for which he had been convicted," ALJ
at 38, is simply a misreading of that decision. As the decision
makes clear, the text quoted by the ALJ was a paraphrase of a
question posed of the applicant by the Government on cross-
examination. See 61 FR at 13879 ("When asked on cross-examination
whether, consistent with his not guilty plea, he continued to
maintain that he had not committed the crimes for which he had been
convicted, the Respondent testified, "I accept my conviction[.]").
When the Government then asked "to what extent he did so," the
applicant testified: "'In its completeness.'" Id. Notably, the
decision contains no further discussion suggesting that the
applicant acknowledged his conviction but then denied having
committed the crime or claimed that he was set up.
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(1) Respondent's registration is restricted to authorizing the
prescription of controlled substances. Respondent shall not prescribe
controlled substances to himself or any family members. Respondent is
further prohibited from obtaining controlled substances from a
manufacturer, distributor, or pharmacy, whether the controlled
substances are obtained by ordering them from a manufacturer,
distributor, or pharmacy, or provided to him by a manufacturer,
distributor, or pharmacy as a sample. This condition does not prohibit
Respondent from obtaining a prescription for a controlled substance
from another practitioner for a legitimate medical condition and
filling such a prescription at a pharmacy.
(2) Respondent shall maintain a log of all controlled substance
prescriptions he issues. Respondent shall provide a copy of his log
each quarter to the local DEA office within ten business days of the
end of each quarter of the calendar year (i.e., March 31st; June 30th;
September 30th, and December 31st). If Respondent issues no controlled
substance prescriptions during the quarter, a report indicating that no
prescriptions were issued must also be filed no later than ten business
days following the end of the quarter.
(3) Respondent shall consent to unannounced inspections of his
registered location by DEA personnel and waives his right to require
that Agency personnel obtain an Administrative Inspection Warrant prior
to conducting an inspection of his registered location.
(4) Any violation of the probationary terms imposed pursuant to the
MBC's requirement that he contract with a laboratory or service to
provide for random biological fluid testing shall constitute grounds
for the immediate suspension of his DEA registration.
[[Page 60891]]
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a)(4), as well as 28 CFR 0.100(b), I order that the application of
Stephen L. Reitman to renew his DEA Certificate of Registration be, and
it hereby is, granted subject to the conditions set forth above. This
Order is effective immediately.
Dated: September 20, 2011.
Michele M. Leonhart,
Administrator.
Christine M. Menendez, Esq. for the Government.
Robert C. Schlein, Esq. for the Respondent.
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
I. Procedural Background
Gail A. Randall, Administrative Law Judge. The Deputy Assistant
Administrator, Office of Diversion Control, Drug Enforcement
Administration ("DEA" or "Government"), issued an Order to Show
Cause ("Order") dated September 10, 2009, proposing to revoke the DEA
Certificate of Registration Number AR6012568, of Stephen L. Reitman,
M.D. ("Respondent" or "Dr. Reitman"), as a practitioner, pursuant
to 21 U.S.C. 824(a)(4), and deny any pending applications for renewal,
modification, or additional registrations, pursuant to 21 U.S.C.
823(f), because the continued registration of the Respondent is
inconsistent with the public interest, as that term is defined in 21
U.S.C. 824(a)(4). [Administrative Law Judge Exhibit ("ALJ Exh.") 1].
On September 25, 2009, the Respondent, through counsel, filed a
request for a hearing in the above-captioned matter. [ALJ Exh. 2].
The hearing was held in San Diego, California, on April 13-14,
2010. [ALJ Exh. 4 at 1; Transcript ("Tr.") Vol. I-II]. At the
hearing, Counsel for the DEA and Counsel for the Respondent called
witnesses to testify and introduced documentary evidence. After the
hearing, both parties submitted Proposed Findings of Fact, Conclusions
of Law and Argument.
II. Issue
The issue in this proceeding is whether or not the record as a
whole establishes by a preponderance of the evidence that the Drug
Enforcement Administration should revoke the DEA Certificate of
Registration Number AR6012568 of Stephen L. Reitman, M.D., as a
practitioner pursuant to 21 U.S.C. 824(a), and deny any pending
applications to renew or modify this registration under 21 U.S.C.
823(f), because to continue Respondent's registration would be
inconsistent with the public interest as that term is used in 21 U.S.C.
823(f). [ALJ Exh. 3 at 1; Tr. 5].
III. Findings of Fact
I find, by a preponderance of the evidence, the following facts:
A. Background
1. Respondent is registered with DEA as a practitioner in Schedules
II-V pursuant to DEA Registration Number AR6012568. [ALJ Exh. 3 at 1;
Government Exhibit ("Govt. Exh.") 1; Tr. 58].
2. Respondent is licensed as a physician and surgeon in the State
of California pursuant to License Number G25924. Respondent's licensure
status is renewed and current. [ALJ Exh. 3].
3. Dr. Reitman attended the University of Illinois in Champaign for
undergraduate school. Then he studied at the University of Illinois
Medical School in Chicago from 1965 to 1969. Dr. Reitman graduated
medical school in 1969. [Tr. 55]. He next attended the University of
Cincinnati for internship and residency from about 1969 until 1972.
From there, he studied at Ann Arbor University of Michigan from 1972
until 1974 for a fellowship in nephrology. In 1974, he and his wife
moved to San Diego where he has been in practice since that time. He
has been licensed to practice medicine in California since 1973.
[Respondent's Exhibit ("Resp. Exh.") 5; Tr. 55-56].
4. Dr. Reitman is currently working in La Mesa, California. His
practice consists mostly of geriatric and internal medicine treating
senior citizens, people 60 or older. He sees maybe 15 to 20 patients
per day. [Tr. 57]. In his practice, he sees many seniors with chronic
pain. He prescribes Vicodin, codeine, and Darvocet, as well as anti-
anxiety medications and anti-depressants. He does not dispense. [Tr.
58-59].
B. DEA Investigation
5. Diversion Investigator Ayoma Rudy ("Investigator Rudy") has
been a diversion investigator with the DEA in San Diego, California
since November 3, 2005. [Tr. 18-19]. Prior to becoming a diversion
investigator, she was a DEA group assistant in 1996. [Tr. 19]. She then
became an investigative assistant in approximately 2001. [Id.]. She
trained for three months at Quantico, where she received specialized
training including how to conduct regulatory, financial, and criminal
investigations and how to write reports, take affidavits, conduct
search warrants, and conduct interviews. [Tr. 20]. Investigator Rudy is
now responsible for investigating the illegal diversion of controlled
substances and listed chemicals. She is the lead investigator of the
issues surrounding the Dr. Reitman case. [Tr. 20-22].
6. Investigator Rudy began investigating Dr. Reitman on May 28,
2009, when Moore Medical submitted a controlled substance report to the
San Diego Field Division showing what the DEA considered to be
excessive purchases of controlled substances by Dr. Reitman from Moore
Medical. [Govt. Exh. 3, 5; Tr. 23]. A DEA registrant has a
responsibility to inform the DEA of any excessive purchases or
suspicious orders. [Tr. 26]. Investigator Rudy's supervisor, John
Partridge, told her to follow up on these purchases, because he
considered them excessive. [Tr. 26-27].
7. A Controlled Substance Utilization Review ("CURES") report is
generated by a California Department of Justice database, which tells
an investigator what the patient filled, what drugs the patient filled,
when, which pharmacies the patient went to, and how many doctors the
patient saw within the week or within the day. [Tr. 22].
8. In the case of the report from Moore Medical, the DEA
Certificate of Registration Number used to order the controlled
substances was AR6012568, which is Dr. Reitman's number. [Govt. Exh. 3;
Tr. 25].
9. Dr. Reitman was ordering Butalbital APAP (acetaminophen)
Caffeine with codeine \6\ and APAP 300mg with codeine 60mg from January
2005 through March 18, 2009. [Govt. Exh. 5; Tr. 27-8]. APAP with
codeine is a Schedule V controlled substance. [Tr. 28]. Butalbital APAP
with Codeine is a Schedule III controlled substance. [Tr. 28].
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\6\ The milligrams are not specified for this drug. [See Govt.
Exh. 5].
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10. On July 8, 2009, DEA Diversion Investigators Ayoma Rudy and
Kenneth Crouch interviewed Dr. Reitman regarding controlled substances
that he purchased from Moore Medical. [ALJ Exh. 3 at 2; Tr. 28].
11. At that time, Dr. Reitman invited them in, asked them to sit
down. [Tr. 29]. Investigator Rudy stated that Dr. Reitman was friendly,
cooperative and forthright. [Tr. 41-42]. He seemed coherent and
rational. [Tr. 42].
12. Dr. Reitman admitted that the report from Moore Medical was
correct. [Tr. 30]. He admitted to having an addiction problem. [Tr.
42]. During the
[[Page 60892]]
interview, Dr. Reitman stated that he ordered the substances in
question for his personal use and that he was not selling the
controlled substances or exchanging them for other services. [ALJ Exh.
3 at 2; Tr. 30, 32]. Investigator Rudy said, "By the third sentence,
he put his head down" and said that he "ordered [the controlled
substances] for personal use." [Tr. 30]. Dr. Reitman repeatedly stated
that he needs help. [Tr. 32].
13. At that time, Dr. Reitman kept the controlled substances in a
locked cabinet at his office location, the contents of which he showed
to the two Diversion Investigators. [ALJ Exh. 3 at 2; Tr. 31-32]. He
opened the cabinet, and DI Rudy could see about 22 or 23 bottles of the
Butalbital and the APAP with codeine. [Tr. 31]. Dr. Reitman told DI
Rudy that he was storing the controlled substances at his office,
because he did not want his wife to find out. [Tr. 32].
14. Dr. Reitman stated that he had no records (receipts, invoices,
log, or dispensing records) related to the controlled substances in
Moore Medical's report. [Tr. 30-31].
15. Investigator Rudy asked him if he was trading or selling the
drugs, and Dr. Reitman said no. [Tr. 32]. DI Rudy also stated that she
believed his explanation. [Tr. 47-48]. At this hearing, Dr. Reitman
stated that the drugs were for his personal use. He never sold them or
dispensed them to anybody. [ALJ Exh. 3 at 2; Tr. 81].
16. Investigator Rudy asked the Respondent if he realized that he
was violating DEA policy, and he said yes. [Tr. 32].
17. At that point, Investigator Rudy left without conducting an
inventory, because she wanted to report this unique situation to her
supervisor. [Tr. 33, 46]. Investigator Rudy had no way of conducting an
inventory, because Dr. Reitman had no records to compare with the
number of pills on hand. [Tr. 46, 47]. Her supervisor told her to seek
a voluntary surrender of both his registration and the controlled
substances, which she did. [Tr. 33, 45]. However, Dr. Reitman refused
to voluntarily surrender the controlled substances or his registration
until after he had spoken with his attorney. [Tr. 33, 45]. Investigator
Rudy stated that she did not think it was unusual for Dr. Reitman to
want to speak to an attorney and that he had a right to do so. [Tr. 43-
44].
18. However, Investigator Rudy did tell Dr. Reitman to keep the
controlled substances locked in the cabinet. [Tr. 41].
19. On July 13, 2009, DI Rudy returned to Dr. Reitman's office,
this time with a different investigator, Investigator Theresa Grant, to
seek a voluntary surrender of his registration. [Tr. 34-5]. Dr.
Reitman, acting pursuant to the advice of his attorney, refused to
surrender both the controlled substances and his DEA Certificate of
Registration to DEA Diversion Investigators Rudy and Grant. [ALJ Exh. 3
at 2; Tr. 35].
20. On July 15, 2009, Investigator Rudy again met with Dr. Reitman
at his office. [Tr. 35]. On this occasion, she was accompanied by
Special Agent Rockwell Herron. [Tr. 35]. Dr. Reitman voluntarily
surrendered the controlled substances in question to Investigator Rudy
and Special Agent Herron. [ALJ Exh. 3 at 2; Tr. 35-36]. Investigator
Rudy seized the controlled substances and gave Dr. Reitman a receipt
(DEA-12) for the drugs. [Tr. 36, 41, 44].
21. Investigator Rudy and Agent Herron seized the Butalbital and
the APAP with codeine, which were being stored in the same locked
cabinet. [Tr. 36].
22. Investigator Rudy seized four sealed bottles and one partial
bottle of APAP with codeine. [Tr. 36]. These drugs were in both 500-
and 100-count bottles. [Tr. 47].
23. Investigator Rudy seized eight sealed bottles and one partial
bottle of Butalbital with codeine. [Tr. 36-37]. These drugs were in
100-count bottles. [Tr. 47].
24. Investigator Rudy stated there was a significant difference
between what was seized and the amount ordered according to the Moore
Medical records. She is unsure of the amount that was in fact seized.
[Tr. 47, 48-49]. She stated that he ordered 128 bottles of Butalbital
and 32 bottles of APAP with codeine. However, there were only eight
bottles of Butalbital and four bottles of APAP with codeine. [Tr. 48-
9]. Investigator Rudy could not provide a specific number of the amount
of pills he had on hand. [Tr. 49-50]. Therefore, Dr. Reitman had at
least 800 dosage units of each controlled substance on hand at this
time.
25. Investigator Rudy took these drugs to the San Diego Field
Division's evidence room. They are now at the Southwest Lab in Vista,
San Diego. [Tr. 37].
26. Investigator Rudy stated that Dr. Reitman told her that he was
taking three to six pills per day. [Tr. 53].
27. Sometime in August, Investigator Rudy received an updated
report from Moore Medical, which contained information related to
controlled substances purchased by Dr. Reitman from Moore Medical from
March 19, 2009 through August 27, 2009. [Govt. Exh. 4; Tr. 38, 39]. She
received this report from Tracy Lofquist from Moore Medical's
Regulatory Affairs department. [Tr. 38]. Again, this document shows
that Dr. Reitman ordered Butalbital APAP with codeine and APAP with
codeine. [Tr. 39]. Patrick Early, Vice President of Regulations and
Operational Affairs at Moore Medical tallied Dr. Reitman's orders of
controlled substances from January 1, 2005, through August 27, 2009.
[Govt. Exh. 5 at 2-3]. He stated that Dr. Reitman ordered 11,600 dosage
units of APAP with Codeine and 12,800 dosage units of Butalbital APAP
Caffeine with Codeine in that time (which is four years, seven months,
and twenty-seven days, or seventeen-hundred days). However, since
Investigator Rudy seized at least 800 dosage units of APAP with Codeine
and another 800 dosage units of Butalbital APAP Caffeine with Codeine,
Dr. Reitman could have only ingested approximately 10,800 dosage units
of APAP with Codeine and approximately 12,000 dosage units of
Butalbital APAP with Codeine during that time. [Compare Govt. Exh. 5 at
2-3 with Tr. 36-37, 47]. This is an approximate average of six APAP
with Codeine per day and an average of seven Butalbital APAP Caffeine
with Codeine per day for a maximum total of thirteen pills per day.
[Govt. Exh. 5 at 2-3].
28. Dr. Reitman's last order was placed on May 22, 2009. He has not
ordered any controlled substances from Moore Medical since. [Govt. Exh.
4; Tr. 39-40, 44]. The DEA's ARCOS database, which stands for Automated
Reporting and Consolidated Ordering System, tracks controlled
substances orders. [Tr. 40]. Investigator Rudy used ARCOS to confirm
that Dr. Reitman has made no controlled substances orders since May 22,
2009. [Tr. 40].
29. Dr. Reitman still has the ability to order controlled
substances. [Tr. 40, 88]. He has not ordered any, but he has prescribed
controlled substances to his patients. [Tr. 88].
30. Dr. Reitman stated that, other than an action related to the
events that led to this hearing, Dr. Reitman has only had one prior
interaction with the Medical Board of California. [Tr. 81-2]. The
Medical Board of California placed Dr. Reitman on probation from 2002
until 2004, because he lost a malpractice case and the Board felt he
had improperly treated a patient. The Board has taken no other action
on his medical license. [Tr. 56-57, 101-02]. The 2002 probation had
nothing to do with his abuse of codeine. [Tr. 102].
[[Page 60893]]
C. Dr. Reitman's Addiction
31. Dr. Reitman stated that he considers himself to be a recovered
drug addict. He admits to abusing controlled substances, stating that
he began to abuse Butalbital with codeine and APAP with codeine in
about 2002 or 2003. Initially, he was prescribed these drugs by his
private physician to treat headaches. Then, when he was at the point
that he was taking more than 100 per month, he began ordering them for
himself from Moore Medical. [Tr. 59-60, 77].
32. Dr. Reitman stated that he began getting essentially migraine
headaches when he was about five or six years old. [Tr. 77]. They
abated until the late 1990s when he was suffering from cervical
stenosis and neck pain. [Tr. 78].
33. The Respondent admits that he knew that he "was taking an ever
larger dose of medication," but that he needed the medication because
he was having the headaches. Dr. Reitman stated, "I was stupid at the
time. I probably should have asked to go to a rehab program or
something to get myself off it at that time. I just didn't. I made a
tremendous mistake." [Tr. 87].
34. Since July of 2009, Dr. Reitman has had few headaches, and he
is able to treat these headaches with Imitrex or ibuprofen. [Tr. 78].
Dr. John E. Milner told Dr. Reitman that these headaches are codeine
withdrawal headaches that may last from 18 to 24 months. [Tr. 78].
Also, Butalbital is a barbiturate. [Tr. 103]. However, Dr. Milner told
Dr. Reitman that he did not think that Dr. Reitman was ever addicted to
Butalbital, just the codeine. [Tr. 104]. Today, if he needs a
controlled substance, he has two physicians, a neurologist and a
primary physician, who can prescribe that for him. [Tr. 79].
35. Dr. Reitman candidly admitted that the Moore Medical report
does not paint a clear picture of his self-prescribing practices. [Tr.
60-61]. The document begins with purchases on March 8, 2005. However,
the Respondent admits to ordering for himself from Moore Medical since
approximately 2002. [Tr. 60-61]. He stated that prior to 2002, he had
been receiving his prescriptions from his private physician for about
two years. [Tr. 61]. Dr. Reitman also stated that the Moore Medical
report reflects all of the kinds of controlled substances he purchased
from Moore Medical. [Tr. 81]. He did not purchase controlled substances
from any other distributor. [Tr. 63].
36. Dr. Reitman said that he increased the amount of drugs that he
was taking to the point that he was ingesting between eight and twelve
(approximately 660 mg) per day. [Tr. 61-63].
37. Dr. Reitman states that he kept no records from Moore Medical.
[Tr. 63-64]. He states he has no dispensing log, because he didn't
dispense to anyone but himself. [Tr. 64].
D. Dr. Reitman's Treatment
1. Dr. Stephen Reitman
38. Dr. Reitman stated that he does not remember telling
Investigator Rudy about his problem, but that he did tell Dr. William
Friedel on the night of July 8, 2009. Dr. Friedel recommended he speak
with an attorney and attend a meeting of the Physician Well-Being
Committee at Grossmont Hospital, which occurs once every three months
and happened to be the next day, July 9, 2009. Dr. Reitman attended the
Well-Being Committee meeting where he told Dr. Calaprete of his drug
problem. [Tr. 64-65, 68, 69, 102-03]. He continues to attend these
committee meetings. [Tr. 69, 73].
39. Dr. Friedel also told Dr. Reitman about a diversion program.
[Tr. 64-65, 74]. Dr. Reitman has also signed a Pacific Assistance Group
("PAG") contract with Duane Rogers which "spells out what I will do
and what will happen to me if I am found to be positive of substances
or alcohol." [Tr. 74, 89]. He has to not abuse controlled substances,
attend diversion meetings twice a week, and allow random urine tests
for a minimum of four to five times per month for three years. [Tr. 74,
90]. All of his urine tests have been negative since he began the
program in July of 2009. [Tr. 74, 90]. He hasn't missed any meetings,
but has been excused from a few when he was out of town. [Tr. 90-91].
If he breaks a term of the contract, he can be told that he cannot go
to work until he has had two negative urine tests. [Tr. 91]. However,
if he violates a term of this contract, it is not reported to the
California Medical Board or to the DEA. [Tr. 91].
40. Dr. Reitman also attends Alcoholics Anonymous ("AA")
meetings. [Tr. 75]. He completed a 90 in 90 program, which means going
to a minimum of 90 meetings in 90 days. Now, he attends AA meetings two
to three times a week and meets with his sponsor, Philip Shapiro, on
the phone or in person once per week. [Tr. 75]. Dr. Reitman attends AA
meetings instead of Narcotics Anonymous ("NA") meetings, because he
did not feel comfortable at NA meetings. He said the participants were
all younger, 17 to 30 years old and used four-letter words. Many had
been to prison. [Tr. 76]. Several people at the AA meetings are also
substance abusers or poly-drug abusers. [Tr. 76].
41. With regards to his addiction to controlled substances, Dr.
Reitman also told two of his children who live in the area and his wife
the following Monday when she returned from a trip abroad. [Tr. 67-68].
However, he did not admit to anyone that he had a problem until he was
confronted by Investigator Rudy. [Tr. 65-66].
42. The last time he ingested a controlled substance was on the
morning of July 8, 2009, when he took two tablets of the 60 mg Tylenol
with codeine and two tablets of the Butalbital with codeine. He has
since been substance free for over nine months. [Resp. Exh. 3 at 1; Tr.
66, 71].
43. On August 3, 2009, Dr. Reitman voluntarily entered an inpatient
program at Rancho L'Abri in the East County of San Diego for 30 days.
[Resp. Exh. 1, 2, 3; Tr. 70, 71, 72]. The program is run by Dr. John
Milner. [Tr. 71]. Dr. Reitman conducted a five-day detoxification
period at home prior to entering the program at Rancho L'Abri. [Tr.
72]. Through the program, Dr. Reitman learned that while he was self-
prescribing codeine, he was most likely experiencing more headaches as
a result of daily codeine withdrawal. [Tr. 73]. He states he has had no
desire to take codeine since he stopped and that he feels like a
different person. [Tr. 73, 79]. Though he still gets some headaches, he
states that they are the result of ongoing changes in the mind and body
resulting in his cessation of using codeine. [Tr. 88-89].
44. The Respondent stated that he has had a 100% recovery and that
he is 100% committed to sobriety. [Tr. 80, 88]. When asked, he stated,
"Definitely. I never want to go backwards." [Tr. 80]. However, he
also notes that it is a continuing thing and chemical dependency is
something that he has to be worried about for the rest of his life,
which is why he states that he will continue to go to AA meetings. [Tr.
88]. Dr. Reitman also states that though he abused codeine for eight
years and has only been clean for a little over nine months, he is well
on the road to recovery, and in more than just the early stages. [Tr.
89].
45. The Respondent offered into evidence approximately 18 patient
comments about Dr. Reitman from August 1, 2009, to December 31, 2009,
and from January 1, 2010, to March 23, 2010. [Resp. Exh. 9; Tr. 92-93].
The comments are mostly positive other than a few typical criticisms.
[Resp. Exh. 9 at 2]. Additionally, during the time that he was addicted
to codeine,
[[Page 60894]]
Dr. Reitman said that he did not receive any patient complaints. [Tr.
102].
46. The Respondent offered into evidence a Letter of Compliance
from Duane Rogers, Psy.D., MFT, dated March 27, 2010.\7\ [Resp. Exh. 7;
Tr. 95-6]. Therein, Dr. Rogers states that Dr. Reitman "has fully
participated and complied with the physicians monitoring program from
the above date [ ] as a self-referred voluntary participant." [Resp.
Exh. 7]. The letter also states: "To date, all tests are negative for
all drugs of abuse and alcohol." [Id.].
---------------------------------------------------------------------------
\7\ Although the letter is dated March 27, 2009, the parties
agreed that this was a typographical error and the actual date was
March 27, 2010. [Tr. 95-96].
---------------------------------------------------------------------------
47. The Respondent also offered into evidence the office notes from
a neurologic evaluation of Dr. Reitman by Dr. Boris Khamishon, Dr.
Reitman's treating neurologist who has been helping him with his
headaches. [Resp. Exh. 8; Tr. 96-7].
2. Dr. Peter Colaprete
48. Dr. Peter Colaprete is a physician at Grossmont Hospital. [Tr.
108-9]. He began working with Dr. Reitman in 1987. [Tr. 109]. He has
known Dr. Reitman for 23 years and considers him to be a friend. [Tr.
113]. Dr. Colaprete has an undergraduate degree in biology and
chemistry. He then attended medical school, after which he completed a
residency in emergency medicine, a fellowship in critical care
medicine, and another residency in hyperbaric medicine. [Tr. 108].
49. Dr. Colaprete has been the chairman of the Grossmont Hospital
Wellness Committee for approximately ten years, and has been a member
of the committee for approximately twenty years. [Tr. 109]. The
committee was mandated by the State of California in the 1970s with the
purpose of helping physicians that are addicted to medications or
alcohol or are suffering from dementia or psychiatric illness. [Tr.
109-10]. Prior to the establishment of these types of committees,
doctors such as Dr. Reitman might have simply lost their license. This
is a way to allow troubled doctors to continue to practice if the
committee and the State feel that this is an option. There are ten
members on the committee, and all have been there for more than five
years. [Tr. 114]. At least one member of the committee has to have been
a physician with a former addiction problem. [Tr. 119]. The committee
meets quarterly, conducts random urine screens, and establishes a
contract with the doctors that must be followed. The committee also
stays in contact with the doctors as well as their physicians. [Tr.
114-15, 116]. The physician usually must attend these meetings for two
or three years. [Tr. 116, 118].
50. In approximately July of 2009, it came to Dr. Colaprete's
attention that Dr. Reitman would need the assistance of the Wellness
Committee. [Tr. 110]. Dr. Reitman has attended three meetings since
that time. [Id.]. Dr. Reitman told the committee of his recurring
headaches, his treatment of those headaches, and his subsequent self-
prescribing of codeine in large amounts. [Tr. 111].
51. Dr. Colaprete stated that the committee has not done any
urinalysis tests for Dr. Reitman. [Tr. 115].\8\ As part of the
contract, twice per month, Dr. Reitman has to meet with a clinical
psychologist, Duane Rogers, who can also do screening. [Id.].
---------------------------------------------------------------------------
\8\ However, Duane Rogers has been conducting urinalysis tests
and all have been negative for drugs "of abuse" and alcohol.
[Resp. Exh. 7]. Rancho L'Abri also conducted urinalysis tests, which
have all been negative as well. [Resp. Exh. 4].
---------------------------------------------------------------------------
52. If the Committee feels that the physician should not be
permitted to work (i.e. the doctor fails to attend a meeting, tests
positive on a urinalysis, admits to a relapse, etc.), then they can
recommend this to the hospital's chief of staff who can summarily stop
that physician from working. [Tr. 115-16, 117]. This would also be
reported to the Medical Board of California, but not the DEA. [Tr. 117,
124].
53. Dr. Colaprete is familiar with Dr. Milner, the director of the
Rancho L'Abri program. [Tr. 111-12]. Dr. Colaprete stated that Dr.
Milner is very knowledgeable in prescription drugs and has seen many,
many patients. [Tr. 112].
54. With regards to Dr. Reitman's recovery, Dr. Colaprete stated
that Dr. Reitman was their "star physician." Dr. Colaprete also said,
"He completed the program as we requested. He's followed all our
instructions. He's come to every meeting we've asked him to come to,
and, again, I've had, you know scores of physicians that have been
requested to come to the committee, and I believe Dr. Reitman is at the
top of that list of people that have completed and have performed as we
requested." [Tr. 112-13]. Dr. Colaprete stated he intends to have Dr.
Reitman continue to participate in this program. [Tr. 113].
55. In twenty years on the committee, Dr. Colaprete has seen
approximately twenty physicians with substance abuse problems. [Tr.
118]. He has never seen a physician relapse who seemed very committed
to recovery. [Tr. 119]. He also stated that having access to drugs as
well as the ability to write prescriptions could potentially be a
problem. [Tr. 120]. However, when asked if he would characterize Dr.
Reitman as being recovered, Dr. Colaprete stated, "* * * he's pretty
close." [Tr. 120]. He also reiterated that Dr. Reitman is "on the
road to recovery, if not completely recovered," and he does not
foresee him relapsing. [Tr. 122].
56. Dr. Colaprete stated that Dr. Reitman "loves his patients,"
is "very conscientious," and was a "very professional physician."
[Tr. 122]. At no point did Dr. Colaprete ever note any strange behavior
on the part of Dr. Reitman. [Tr. 123-24].
3. Dr. William Friedel
57. Dr. William Friedel is a graduate of Brown University. He
attended Albert Einstein College of Medicine, interned at Downstate in
Brooklyn, New York, and returned to Albert Einstein for his residency
in urology. He has been a practicing urologist in California since
1973. [Tr. 127].
58. Dr. Friedel has known Dr. Reitman as a friend and colleague for
over 35 years. [Tr. 126-27, 138-9]. They belong to a religious group.
They also worked together at El Cajon Valley Hospital. Dr. Friedel was
Dr. Reitman's patient until approximately six or seven years ago when,
after Dr. Friedel had a heart attack, he began seeing a cardiologist as
his primary physican. [Tr. 127-28].
59. Dr. Friedel stated that, "as a sophisticated consumer of
medical care * * * I certainly would not have seen [Dr. Reitman] if I
did not think he was more than competent." [Tr. 129]. He also said
that his opinion of Dr. Reitman's medical abilities was "excellent."
[Tr. 129]. He has observed Dr. Reitman with patients. Dr. Friedel
testified that Dr. Reitman is an "excellent physician" who "cares
about his patients and takes good care of them." [Tr. 134, 141].
During the 2002 to 2009 time frame, he did not suspect that Dr. Reitman
was interacting with patients while he was under the influence of a
controlled substance. [Tr. 141].
60. In July of 2009, Dr. Reitman told Dr. Friedel of his years of
self-prescribing of controlled substances. [Tr. 129, 139]. Dr. Friedel
advised Dr. Reitman to meet with Grossmont Hospital's Wellness
Committee. [Tr. 130]. Dr. Friedel has been a member of this committee
for over 20 years. [Tr. 130-31, 135]. Though he admits he is not an
addictologist, he states that from a practical point of view, he is
very experienced in addiction issues. [Tr. 131, 135].
[[Page 60895]]
61. Dr. Reitman has since met with the committee and will continue
to meet with the committee regularly. [Tr. 132, 136]. However, Dr.
Friedel stated that the committee does not really "monitor"
physicians, but rather has the doctors come in and talk with the
committee periodically. The committee also assigns a mentor to keep in
close contact with the physicians. He is unsure if the committee has
appointed a mentor for the Respondent. [Tr. 135-36].
62. Dr. Friedel stated that Dr. Reitman has "an excellent chance
of not abusing codeine in the future. It's crystal-ball-gazing, as you
know. There's a certain relapse rate for people who use drugs. I think
* * * it's unlikely that he would do that." [Tr. 133]. He added that
Dr. Reitman "absolutely" appears committed to recovery. [Id.]. He
knows that Dr. Reitman abused controlled substances for several years
and that he has only been free of controlled substances for nine
months. [Tr. 136]. He could not say that Dr. Reitman is recovered, but
used the more general term of "recovering." He compared it to being
cured, stating that "[y]ou only know somebody's cured when they die
and they don't have it anymore." He later added, "It's like the
alcoholic describing themselves as [a] non-drinking alcoholic." [Tr.
136-37, 140].
63. Dr. Friedel stated that the committee only sees about one, new
physician with substance abuse problems every three years. [Tr. 137].
He has seen physicians relapse even when they seemed committed to
recovery. [Tr. 137].
64. When asked, with regards to a physician who is addicted to
controlled substances, whether access to controlled substances would be
conducive to recovery, Dr. Friedel said: "There's no doubt that
anybody who has free access to drugs is more likely to abuse drugs, and
probably the best example I can use is an anesthesiologist who, as a
profession, are more likely to become addicted, because the drugs are
poorly accounted for and readily available. With that analogy, of
course, anybody who has more access to drugs is probably more likely to
abuse that access. On the other hand, I think Dr. Reitman's very
committed not to do this." [Tr. 138].
65. Dr. Friedel stated that Dr. Milner was "the guy in addiction
medicine * * * he's the guy to go to." [Tr. 134].
4. Rabbi Avram Bogopulsky
66. Rabbi Avram Bogopulsky did his initial training in Muncie, New
York under the tutelage of Rabbi Wein for eight years, encompassing
detailed study, Talmudic study, rabbinical study, and pastoral care. He
then served as an assistant rabbi in Charleston, South Carolina for
three years. Now he has led the Beth Jacob Congregation in San Diego
for the past 14 years. [Tr. 144].
67. Dr. Reitman has attended Beth Jacob for 14 years. [Tr. 144].
Rabbi Bogopulsky considers him "one of our better congregants as far
as he attends daily minion, which is a gathering of a quorum of ten * *
* every single morning." [Tr. 144]. They talk on a regular basis. [Tr.
145, 148-9]. Dr. Reitman is one of two vice presidents of the
congregation. [Tr. 145].
68. Rabbi Bogopulsky, his wife, and his son are all patients of Dr.
Reitman. [Tr. 145]. Rabbi Bogopulsky stated that Dr. Reitman is a
"very good doctor." [Tr. 146].
69. In July of 2009, Dr. Reitman came to Rabbi Bogopulsky for
spiritual guidance related to his years of addiction and self-
prescribing of controlled substances. [Tr. 146-7]. Rabbi Bogopulsky
stated that this came as a shock, because the Respondent never appeared
to be under the influence. [Tr. 148]. He stated that Dr. Reitman "has
an impeccable character with a deep concern for people * * * and is a
role model in the community." [Tr. 149].
70. Rabbi Bogopulsky testified that Dr. Reitman showed remorse and
was "absolutely regretful." [Tr. 150]. He also stated that Dr.
Reitman has "demonstrated to this day, every single day, a
commitment" to recovery. [Id.]. He explained that, in Orthodox
Judaism, the Sabbath is a day of holiness. On the Sabbath, "we do not
use electricity, we don't answer the phone, drive, computers."
However, part of the recovery process requires Dr. Reitman to call in
on a daily basis. Therefore, he and Rabbi Bogopulsky have an agreement
where Rabbi Bogopulsky allows Dr. Reitman to essentially bypass Jewish
law and use Rabbi Bogopulsky's office phone to call in on the Sabbath.
[Tr. 150-51]. Rabbi Bogopulsky stated that this allows him to maintain
his religious faith and still carry out his commitment to recovery.
[Tr. 151].
71. Rabbi Bogopulsky also said that he never suspected Dr. Reitman
of abusing drugs and that he had no inclination that he was under the
influence of any drugs. [Tr. 152]. He admitted that he is neither a
medical doctor nor an addiction specialist. However, he testified that
in his position as a spiritual leader, he has counseled people with
addiction problems before, but he typically finds a more qualified
counselor to help addicts. [Tr. 152-3].
5. Dr. John E. Milner
72. Dr. John E. Milner graduated from the University of Texas
Medical School in Dallas in 1957. He interned at the Naval Hospital in
Camp Pendleton and served as a general duty medical officer until 1961.
He was in private practice in La Jolla, California from 1961-66. He
began psychiatric training in 1966, eventually completing a child and
adolescent fellowship in psychiatry in 1970. In the mid-1970s, he
opened an alcohol and drug treatment unit in San Diego, California
called Sharp Cabrillo Hospital. He received a certificate in addiction
medicine in 1986. He also opened a non-hospital-based treatment program
for alcohol or drug dual diagnosis patients called Rancho L'Abri. He
has been the medical director at Rancho L'Abri for more than 25 years.
He indicated that he has probably treated thousands of patients and
hundreds of physicians with drug and alcohol issues. [Resp. Exh. 10;
Tr. 181-4, 190].
73. Dr. Reitman came to Rancho L'Abri as an inpatient on August 3,
2009. [Resp. Exh. 1; Tr. 184-5]. Dr. Milner's team, under his
direction, created a treatment plan for Dr. Reitman. [Resp. Exh. 2; Tr.
186-7]. In addition, the team also maintains patient progress notes,
which are reviewed by Dr. Milner. [Resp. Exh. 3; Tr. 187-8]. The team
also conducts urine toxicology screening and keeps records of the
results. [Resp. Exh. 4; Tr. 189]. When Dr. Reitman arrived at Rancho
L'Abri, his urinalysis results showed him as negative for both opioids
and barbituates. [Resp. Exh. 4; Tr. 203]. Dr. Reitman continues to
receive urine screens. [Tr. 204].
74. Dr. Milner diagnosed Dr. Reitman with opioid addiction. He did
not diagnose Dr. Reitman with barbiturate addiction. He did not know
that Dr. Reitman ordered four times as much Butalbital as he did APAP
with codeine. [Tr. 200]. Dr. Milner said that Butalbital is a very mild
sedative that can cause a person to become "sort of intoxicated" in
huge doses. [Tr. 201]. He testified that he never saw any barbiturate
withdrawal symptoms, and "a person who's severely addicted is going to
manifest them." [Tr. 201].
75. By July 2009, Dr. Reitman was taking approximately 660 mg of
codeine per day. [Tr. 190-91, 202]. Dr. Milner stated that codeine is
very kind on the human brain, "so it's very, very likely, conceivable,
and totally possible that he can function * * * as normally as he did
with this dose of codeine in him." [Resp. Exh. 6; Tr. 192]. He said
that his team looked extensively for any
[[Page 60896]]
evidence that Dr. Reitman failed to function as a physician during the
period that he was abusing codeine, but could find no such evidence.
[Tr. 192].
76. Dr. Milner testified that Dr. Reitman arrived at Rancho L'Abri
having already stopped taking codeine. "He was deeply ashamed,
humiliated, aghast that he had been doing this for so long." [Resp.
Exh. 3 at 1-4; Tr. 192-93].
77. Dr. Milner said that Dr. Reitman has been committed "since the
very beginning" to stop using the drugs. [Tr. 193]. To the best of his
extensive knowledge, he stated that Dr. Reitman has "rigorously
attended all the recommended behaviors and attitudes and processes."
[Tr. 193-4]. When asked to rate Dr. Reitman's commitment to recovery on
a scale of one to ten, Dr. Milner said, "Nine. Ten. Yeah, he's
committed." [Tr. 194]. He also stated that "as long as he continues
the process he's involved in, the risks [of relapse] are minimal."
[Tr. 194]. Dr. Milner believed that it would be in the interest of the
public to continue to allow Dr. Reitman to prescribe controlled
substances, and he would expect the urine monitoring and continued
involvement in his own recovery plan to continue. [Tr. 195-96].
Admitting that it is possible for a person who has demonstrated their
commitment to recovery to relapse, Dr. Milner asserted that as long as
the individual continues to be monitored and continues to follow
recommended processes, the chances of relapse are very slim. [Tr. 196-
97]. Dr. Milner knew that Dr. Reitman had abused for several years and
had only been clean for approximately nine months. [Tr. 198]. He also
stated that the chance of relapse in the earlier period of recovery is
increased. [Tr. 199].
78. Dr. Milner testified that if a physician is in the proper
monitoring program, then access to "one's drug of choice" would not
be harmful. [Tr. 199].
79. Dr. Reitman's wife was continuously supportive throughout Dr.
Reitman's stay at Rancho L'Abri, providing Dr. Reitman with kosher
meals and attending family sessions. [Resp. Exh. 3 at 1-4, 6-7].
6. Dr. Sandra Jassmann
80. Dr. Sandra Jassmann received a medical degree from Medical
College of Virginia in 1969. She had three years of internal medicine
at Cleveland Clinic in Cleveland, Ohio from 1969 to 1972. She served
two years with the United States Navy in Charleston, South Carolina
from 1972 to 1974. Then, from July 1, 1974, to June 10, 1976, she
participated in a fellowship in endocrinology at Sepulveda VA in
Sepulveda, California, an affiliate of UCLA. She began working in San
Diego in 1976. [Tr. 207].
81. Dr. Jassmann met Dr. Reitman in 1976 and worked closely with
him for 30 years. [Tr. 208]. She considers Dr. Reitman to be a "very
competent, very capable, very professional" doctor who has "the
interests of his patients at heart." [Tr. 208-9, 212].
82. In August of 2009, Dr. Reitman told Dr. Jassmann that he had an
addiction problem and would be going into rehab. [Tr. 209]. Dr.
Jassmann stated that she was "astounded, [] had no way of knowing,
[and] had not observed anything." [Tr. 210]. He was "never"
lethargic, loopy, or seemed to be under the influence of any medication
during the period from 2002 through 2009. [Id.]. She had never heard
any complaints about Dr. Reitman. [Tr. 211, 212]. Dr. Jassman was aware
of the 2002 action by the California Medical Board. However, she stated
that this does not change her opinion of Dr. Reitman's abilities. [Tr.
212-3]. She no longer works with Dr. Reitman; however, Dr. Jassmann
testified that, if she did, she would allow him to cross-cover her
patients. [Tr. 213-4].
83. Dr. Jassmann stated that she felt confident that Dr. Reitman is
able to conduct his practice successfully with regards to patients and
prescribing. [Tr. 211]. She said that he was an excellent practitioner
of internal and geriatric medicine. [Tr. 212].
84. Dr. Jassman testified that Dr. Reitman was remorseful about the
fact that he had abused codeine. [Tr. 211].
7. Philip Shapiro, Esq.
85. Philip Shapiro is an attorney in San Diego. He went to college
at Southern Illinois for his undergraduate degree. Then, he attended
San Diego State for his Master's. For his J.D., he attended Thomas
Jefferson School of Law. Prior to becoming an attorney, he served as a
special agent with the United States Secret Service. [Tr. 216-17].
86. Mr. Shapiro had been addicted to cocaine. He is currently
involved in Alcoholics Anonymous. He has been recovering for a total of
11 years. He has sponsored five people and is currently Dr. Reitman's
sponsor. [Tr. 217]. Dr. Reitman is currently undergoing the twelve-step
program, and is on step four. He is unsure, but he believes that Dr.
Reitman has also completed the 90 in 90 program. Dr. Reitman and Mr.
Shapiro had been talking every day, but now they talk three to four
times per week on the phone, and 90% of the time, they meet in person
on Sundays. [Tr. 218-19, 221].
87. With regards to Dr. Reitman's commitment to recovery, Mr.
Shapiro said, "I honestly would say that I think [Dr. Reitman] has the
greatest chance of any person I've ever sponsored." [Tr. 219].
However, he also stated that he has seen other AA members relapse, even
those that were remorseful about their past addiction and abuse. But,
if the addicted person comes to meetings and doesn't abuse between
meetings, then "he or she will make it." [Tr. 222]. Also, having easy
access to one's drug of choice can make it much tougher to stay sober.
[Tr. 223]. Mr. Shapiro has seen individuals with 22 years of sobriety
relapse. He stated that it is the individual's level of commitment to
sobriety that seems to determine whether or not they are going to
relapse. [Tr. 223-24].
88. Mr. Shapiro said that Dr. Reitman has been very open about his
problem from the beginning. [Tr. 219]. He does not blame anyone but
himself. [Tr. 220].
89. Mr. Shapiro testified that he would feel comfortable going to
Dr. Reitman as his personal physician. In fact, he sent his daughter to
Dr. Reitman. [Tr. 220].
8. Christine Kuwazaki
90. Christine Kuwazaki has known Dr. Reitman for 26 years. She is
his back office assistant and his practice manager, doing billings,
claims and charges. She works closely with Dr. Reitman on a daily
basis. [Tr. 226-27, 233].
91. Ms. Kuwazaki stated that Dr. Reitman is "very caring, very
ethical, and conscientious with patient care." [Tr. 228, 231, 235].
92. However, she did not know that he was using his DEA
Registration to order controlled substances for personal use. [Tr.
235].
93. To her knowledge, Dr. Reitman does no dispensing at his
practice. No pharmacy representatives leave samples at the practice.
[Tr. 236].
94. From the period of 2002 through the present, Dr. Reitman has
only had a couple of patient complaints. [Resp. Exh. 9 at 2; Tr. 228].
She described them as "typical." [Tr. 234].
95. Dr. Reitman told Ms. Kuwazaki that he had been abusing codeine
on July 8, 2009. Up until that point, she did not see any evidence of
him being under the influence of drugs. [Tr. 229-30]. He told her that
he was going into rehab. She helped him reschedule patients during this
time. [Tr. 230].
96. Prior to that time, she did not know that, at his office, he
stored the drugs he self-prescribed. [Tr. 234].
97. Ms. Kuwazaki knew that Dr. Reitman had a problem with
headaches.
[[Page 60897]]
She could tell when he had a "really bad" headache, because he looked
ill and would have to go home for the day. [Tr. 230-31]. Now that Dr.
Reitman has completed rehabilitation, Ms. Kuwazaki stated that he looks
relieved and focused. [Tr. 231].
98. Ms. Kuwazaki does not think that his ability to write
controlled substance prescriptions would be a problem for Dr. Reitman.
[Tr. 232]. Ms. Kuwazaki stated that she would trust him to be her own
personal doctor. [Tr. 232-3].
E. Medical Board of California
99. On March 17, 2010, the Medical Board of California ("Board")
filed an accusation against Dr. Reitman for "self administering a
dangerous drug," "violation of drug statutes and regulations," and
"general unprofessional conduct." [Govt. Exh. 6]. However, the Record
contains no evidence that the Board has conducted a hearing or imposed
any restrictions on the Respondent's medical license.
IV. Conclusions of Law and Discussion
A. Position of the Parties
1. The Government
The Government asserts that the Respondent's continued registration
is inconsistent with the public interest. [Government's Proposed
Findings of Fact and Conclusions of Law ("Govt. Brief") at 10].
First, the Government states that the Medical Board of California
has filed an accusation against the Respondent. [Govt. Brief at 5].
While admitting that no final action has been taken on the accusation,
the Government avers that the sanction being sought is revocation or
suspension of his medical license. The Government concludes that this
action, nonetheless, "reflects the Board's recommendation as to
Respondent's continued ability to practice medicine in the State of
California." [Govt. Brief at 5-6].
Next, the Government contends that the Respondent's behavior was
"not an isolated incident of misuse, but was a continued pattern of
behavior that continued over a seven year period." [Govt. Brief at 6].
Further, the Government notes that Respondent "was not compliant with
Federal law or the laws of the State of California." [Id.]. The
Government asserts that the Respondent was indeed a dispenser, because
he dispensed to himself, and is thus subject to Federal recordkeeping
requirements, with which he did not comply. [Govt. Brief at 6-7].
Respondent's actions in self-prescribing and administering controlled
substances also violated California law. [Govt. Brief at 7-8]. The
Government contends that these violations "weigh in favor of finding
that Respondent's continued registration would be inconsistent with the
public interest."
Third, the Government notes that the Respondent was initially
prescribed the controlled substances he later ordered for his own
abuse. According to the Government, this does not negate the fact of
his misdeeds. [Govt. Brief at 8]. The Respondent exploited his
controlled substances registration and did not ask his physician to
continue prescribing, because he knew that his intake of controlled
substances was a problem. [Govt. Brief at 8-9].
The Government goes on to argue that though it appears Respondent's
addiction never adversely affected his practice, Respondent was merely
able to hide his addiction from everyone around him for seven years.
[Govt. Brief at 9]. According to the Government, this exemplifies his
ability to conceal future abuse. [Id.].
The Government next notes that, though the Respondent voluntarily
entered a variety of rehabilitative efforts, "which no doubt
demonstrates a commitment to staying clean and sober * * * he has only
been sober for a period of approximately eleven months. He abused
controlled substances for a period of seven years." [Id.].
Additionally, the Government notes the chances that the Respondent will
relapse could be enhanced, because he is in the "early stages of
recovery," and because, if he is permitted to retain his registration,
he would have access to controlled substances. [Govt. Brief at 9-10].
In conclusion, the Government states that it "has met its burden
in proving that the Respondent's continued registration is inconsistent
with the public interest." [Govt. Brief at 10]. Therefore, Dr.
Reitman's registration should either be revoked or, alternatively,
suspended for one year and subject to conditions for three years upon
reinstatement. [Govt. Brief at 10-11].
2. The Respondent
The Respondent argues that his continued registration is not
"inconsistent with the public interest" pursuant to 21 U.S.C. 824(a).
[Respondent's Post-Hearing Proposed Findings of Fact, Conclusions of
Law, and Argument ("Resp. Brief") at 1].
The Respondent notes that Dr. Reitman has been subjected to no
adverse recommendation by the state licensing board and also has no
convictions under Federal or State laws. [Resp. Brief at 12, 13]. The
Respondent further adds that Dr. Reitman is experienced in handling
controlled substances and, "exclusive of the subject at issue in this
case, Dr. Reitman has been responsible in his distribution of
controlled substances and compliant with DEA laws." [Resp. Brief at
13].
The Respondent next avers that, despite his own self-prescribing,
his practice during this time period does not indicate that he placed
the public at risk. [Resp. Brief at 13-15]. He cites one DEA hearing
where a physician was ultimately found guilty of felonious self-
prescribing by subterfuge in a manner the Respondent considers more
egregious than his own conduct. Mary Thomson, M.D., Continuation of
Registration With Restrictions, 65 FR 75,969, 75,970 (DEA 2000); [Resp.
Brief at 14]. He also notes that one similarity between the two cases
is that both doctors harmed no one but themselves. [Resp. Brief at 15].
Therefore, the Respondent argues that since his conduct was not as
shocking as the actions taken by Dr. Thomson, Dr. Reitman should also
be permitted to continue his registration with restrictions. [Resp.
Brief at 14-15].
The Respondent also states that "patient care was not affected
during the time frame that Dr. Reitman was abusing codeine." [Resp.
Brief at 15-16].
The Respondent then points out that he has fully accepted
responsibility for his actions and has minimal risk of relapsing.
[Resp. Brief at 16-17]. He cites two DEA cases for the proposition that
"the paramount issue is not how much time has elapsed since (the
Respondent's) unlawful conduct, but rather, whether during that time
(the) Respondent has learned from his past mistakes and has
demonstrated that he would handle controlled substances properly if
entrusted with [a] DEA registration." John Porter Richard, D.O., 61 FR
13,878 (DEA 1996); Leonardo v. Lopez, M.D., 54 FR 36,915 (DEA 1989);
[Resp. Brief at 18]. Therefore, the Respondent is arguing that he has
made the appropriate showing and it is thus reasonable for Dr. Reitman
to maintain his DEA Registration at this time. [Resp. Brief at 18].
Lastly, the Respondent concludes by stating that the "public
interest will not be served by revoking Dr. Reitman's DEA
registration." [Resp. Brief at 18]. "Although his lifelong battle
with headaches resulted in his eventual addiction to codeine, since
being approached by the DEA, he has taken every conceivable step toward
rehabilitation, and his rehabilitative efforts have paid off." [Id.].
Thus, the Respondent concludes by stating that he "respectfully
requests
[[Page 60898]]
that he be permitted to maintain his DEA Registration, and is open to
any conditions that will ensure his continued compliance with DEA
registration requirements." [Resp. Brief at 19].
B. Statement of Law
Pursuant to 21 U.S.C. 824(a)(4), the Deputy Administrator \9\ may
revoke a DEA Certificate of Registration if she determines that the
continuance of such registration would be "inconsistent with the
public interest" as determined pursuant to 21 U.S.C. 823(f). Section
823(f) requires that the following factors be considered:
---------------------------------------------------------------------------
\9\ The Deputy Administrator has the authority to make such
determinations pursuant to 28 CFR 0.100(b) and 0.104 (2009).
---------------------------------------------------------------------------
(1) The recommendation of the appropriate State licensing board
or professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State
laws relating to the manufacture, distribution, or dispensing of
controlled substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.
21 U.S.C. 823(f).
The factors may be considered in the disjunctive: The Deputy
Administrator may properly rely on any one or a combination of these
factors, and may give each factor the weight she deems appropriate, in
determining whether a registration should be revoked or an application
for registration denied. David H. Gillis, M.D., 58 FR 37,507, 37,508
(DEA 1993); see also D&S Sales, 71 FR 37,607, 37,610 (DEA 2006); Joy's
Ideas, 70 FR 33,195, 33,197 (DEA 2005); Henry J. Schwarz, Jr., M.D., 54
FR 16,422, 16,424 (DEA 1989).
Also, in an action to revoke a registrant's certificate, the DEA
has the burden of proving that the requirements for revocation are
satisfied. 21 CFR 1301.44(e). The burden of proof shifts to the
Respondent once the Government has made its prima facie case. Shatz v.
U.S. Dept. of Justice, 873 F.2d 1,089, 1,091 (8th Cir. 1989); Medicine
Shoppe, 73 FR 364 (DEA 2008); see also Thomas Johnston, 45 FR 72,311
(DEA 1980).
1. Factor One: Recommendation of the Appropriate State Licensing Board
The Medical Board of California has not recommended that Dr.
Reitman's license be revoked. [FOF 2]. The fact that the Medical Board
of California has currently authorized the Respondent to practice
medicine is not dispositive in this administrative determination as to
whether continuation of a registration is consistent with the public
interest. Patrick W. Stodola, M.D., 74 FR 20,727, 20,730 (DEA 2009);
Jayam Krishna-Iyer, 74 FR 459, 461 (DEA 2009). The ultimate
responsibility to determine whether a registration is consistent with
the public interest has been delegated exclusively to the DEA, not to
entities within state government. Edmund Chein, 72 FR 6,580, 6,590 (DEA
2007), aff'd, Chein v. DEA, 533 F.3d 828 (D.C. Cir. 2008), cert.
denied, ---- U.S. ----, 129 S.Ct. 1033 (2009). Although not
dispositive, state board decisions are relevant on the issue of
granting or denying a DEA application. See Gregory D. Owens, D.D.S., 74
FR 36,751, 36,755 (DEA 2009); see Martha Hernandez, M.D., 62 FR 61,145,
61,147 (DEA 1997).
Dr. Reitman is currently licensed to practice medicine in
California, License Number G25924. [FOF 2]. The California Medical
Board has not taken any formal action to limit Respondent's right to
practice medicine nor has it recommended limiting his ability to
prescribe controlled substances. [FOF 2]. However, it has filed an
accusation against the Respondent. Although, as previously stated, the
Board has taken no final action. [FOF 99]. I disagree with the
Government's argument that this accusation "reflects the Board's
recommendation as to the Respondent's continued ability to practice
medicine in the State of California." [Govt. Brief at 6]. Rather, it
is the Board's ultimate decision that serves as a recommendation, not
merely the investigation.
Thus, I find that this factor falls neither for nor against
revocation.
2. Factor Three: Conviction Record
The Record contains no evidence that the Respondent has any
convictions relating to the manufacture, distribution, or dispensing of
controlled substances. Therefore, this factor also does not fall in
favor of revocation.
3. Factors Two and Four: Applicant's Experience in Dispensing
Controlled Substances and Compliance With Applicable State, Federal or
Local Law
The record revealed that the Respondent committed recordkeeping
violations. [FOF 14, 17, 24, 37]. "Every registrant manufacturing,
distributing, or dispensing a controlled substance or substances shall
maintain, on a current basis, a complete and accurate record of each
such substance manufactured, received, sold, delivered, or otherwise
disposed of by him." 21 U.S.C. 827(a)(3), 842(a)(5). Moreover,
"[r]ecord-keeping is one of the CSA's central features," and "a
registrant's accurate and diligent adherence to this obligation is
absolutely essential to protect against the diversion of controlled
substances." Paul H. Volkman, M.D., 73 FR 30,630, 30,644 (DEA 2008),
aff'd 567 F.3d 215, 224 (6th Cir. 2009).
The Respondent did not dispense medication to anyone but himself.
[FOF 15]. Regardless, a physician is required to keep accurate records
readily available with regards to all controlled substances received
and distributed. 21 U.S.C. 827(a)(3), 842(a)(5). According to 21 U.S.C.
827(c), a physician is often exempt from the recordkeeping requirements
of 21 U.S.C. 827(a)(3) when the physician is only prescribing "in the
lawful course of their professional practice." However, Dr. Reitman's
unique situation involves a doctor who ordered 24,400 tablets of
controlled substances over approximately four and one-half years, a
large portion of which were dispensed for his personal use, and not
"in the lawful course" of his professional practice, although the
rest of the time he was indeed only prescribing. [FOF 4, 27]. Thus, I
agree with the DEA that the Respondent was operating as a "dispenser"
as that term is defined in 21 CFR 1300.01(b)(11).\10\ Yet, Dr. Reitman
admitted that he kept none of those required records [FOF 14, 37],
which is a violation of 21 CFR 1304.21-22.\11\ Therefore, the
Respondent violated DEA regulations.
---------------------------------------------------------------------------
\10\ "The term dispenser means an individual practitioner,
institutional practitioner, pharmacy or pharmacist who dispenses a
controlled substance." 21 CFR 1300.01(b)(11).
\11\ "(a) Every registrant required to keep records pursuant to
1304.03 shall maintain on a current basis a complete and accurate
record of each such substance manufactured, imported, received,
sold, delivered, exported, or otherwise disposed of by him/her * *
*" 21 CFR 1304.21. "Each person registered or authorized [ ] to
manufacture, distribute, dispense, import, export or conduct
research with controlled substances shall maintain records with the
information listed below." 21 CFR 1304.22.
---------------------------------------------------------------------------
The Respondent's administration of a controlled substance to
himself is also a violation of both Federal and California law. Under
California Business and Professions Code, Section 2239(a), "the use or
prescribing for or administering to himself or herself, of any
controlled substance [ ] constitutes unprofessional conduct." Cal.
Bus. & Prof. Code 2239 (West 2010). Also, "[n]o person shall
prescribe, administer, or furnish a controlled substance for himself."
Cal. Health & Safety Code 11170 (West 2010). Additionally, "[n]o
person shall obtain or attempt to obtain controlled substances * * *
(1) by fraud, deceit,
[[Page 60899]]
misrepresentation, or subterfuge; or [2] by the concealment of a
material fact." Cal. Health & Safety Code 11173. Here, the Respondent
admitted to ordering controlled substances for himself and obtained
these controlled substances from Moore Medical while concealing the
fact that he was dispensing to himself. [FOF 12, 15]. This is a
violation of California law and, by extension, Federal law. Although
the Respondent did not use prescriptions, he dispensed controlled
substances without a prescription, which violated Federal statutory and
regulatory provisions. See 21 U.S.C. 829; 21 CFR 1306.04.
Therefore, because the Respondent thus violated DEA record-keeping
requirements, and because the Respondent self-administered, I find that
this factor falls in favor of revocation, and the Government has thus
met its prima facie burden.
4. Factor Five: Such Other Conduct Which May Threaten the Public Health
and Safety
While acknowledging that the Government has met its prima facie
burden, I find that the inquiry does not end here. Rather, when
assessing the appropriate remedy in a particular case, the Deputy
Administrator should consider all facts and circumstances at hand. See
Hernandez, 62 FR at 61,147.
Though Dr. Reitman was self-prescribing, the evidence suggests
that, initially, he was doing so to treat a medical condition. [FOF
31]. Though the Government argues that this should not be considered as
a mitigating factor [Govt. Brief at 8-9], in the past, the Deputy
Administrator has considered this to be a mitigating factor. Dennis
Robert Howard, M.D., Grant of Restricted Registration, 62 FR 32,658,
32,662 (DEA 1997) (The then acting Deputy Administrator noted, "There
is no evidence in the record that any of the drugs were taken for other
than a legitimate medical purpose. Also, there is no evidence that
Respondent has since taken any medication that was not prescribed for
him by another physician."). Similarly, Dr. Reitman had intense
headaches that led to dependence. [FOF 31-33]. The Record contains no
evidence that Dr. Reitman was using these controlled substances in
order to produce a "high." Now, he has two doctors that can prescribe
controlled substances for him if necessary. [FOF 34, 47]. Therefore, I
find that Dr. Reitman's desire was to treat a genuine medical problem,
and that this should at least serve as a mitigating factor. See Howard,
62 FR at 32,661.
There is evidence that, though Dr. Reitman self-prescribed, this
did not impair his ability to provide competent care to his patients.
[FOF 59, 68-69, 75]. He hurt no one other than himself. Though the
Government argues that this simply demonstrates his skills in
subversion [Govt. Brief at 9], in Thomson, the Deputy Administrator
stated: "Fortunately for Respondent's patients, and for Respondent
herself, there is no evidence that Respondent's illicit drug abuse
harmed any others than herself, and further, there is no evidence that
Respondent's patients failed to receive needed medications." Mary
Thomson, M.D., Continuation of Registration, 65 FR 75,969, 75,972 (DEA
2000). Likewise, Dr. Milner stated that it is "very likely" that Dr.
Reitman was able to function normally while taking 660mg of codeine per
day. [FOF 75]. Dr. Milner also stated that he searched for indications
that Dr. Reitman failed to function as a physician during the period
that he was addicted to codeine; he could find no such evidence. [Id.].
Other health care professionals stated that at no point did Dr. Reitman
appear to be under the influence. [FOF 56, 59, 82, 95]. Therefore, I
find it to be at least a mitigating factor that Dr. Reitman's self-
prescribing did not impair his ability to conduct his duties as a
physician.
Despite Dr. Reitman's efforts at rehabilitation, the Government
asserts that the Respondent has only been "clean" for approximately
eleven months, and that this is not enough time to be sure that he will
not relapse. [Govt. Brief at 9-10]. As the Deputy Administrator has
previously determined, "[t]he paramount issue is not how much time has
elapsed since [the Respondent's] unlawful conduct, but rather, whether
during that time [the] Respondent has learned from past mistakes and
has demonstrated that he would handle controlled substances properly if
entrusted with a DEA registration." Leonardo v. Lopez, M.D., 54 FR
36,915 (1989). It is clear by the Respondent's actions since being
confronted by the DEA that he is dedicated to rehabilitation. [FOF 12,
31, 33, 38, 40, 42-44, 46, 50, 54-55, 62, 64, 73, 77, 86-88].
Specifically, he immediately entered not just one but various treatment
programs. [FOF 38, 39, 40, 43, 50, 73]. Numerous urinalysis tests have
been conducted; they have all been negative. [FOF 46, 73].
The Government further maintains that Dr. Reitman is more likely to
relapse if he has access to his drug of abuse. [Govt. Brief at 10].
Though three witnesses did state that the possibility of relapse was
greater in such cases, Dr. Friedel added that any doctor with access to
a controlled substance is more likely to abuse the controlled
substance. [FOF 64]. The witnesses also emphatically stated their
opinion that Dr. Reitman was well on the road to recovery. [FOF 54, 55,
62, 64, 77]. Therefore, I find that, under the particular circumstances
of this case, nine months is not such a short recovery period that it
should serve as grounds for revocation.
Additionally, the Respondent has demonstrated remorse and a
dedication to overcoming his addiction and preventing future mis-
judgments. Under Agency precedent, where the Government has proved that
a registrant has committed acts inconsistent with the public interest,
a registrant must " 'present[] sufficient mitigating evidence to
assure the Administrator that [he] can be trusted with the
responsibility carried by such a registration.' " Samuel S. Jackson,
72 FR 23,848, 23,853 (DEA 2007) (quoting Leo R. Miller, 53 FR 21,931,
21,932 (DEA 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), this Agency has repeatedly held that where a
registrant has committed acts inconsistent with the public interest,
the registrant must accept responsibility for its actions and
demonstrate that it will not engage in future misconduct. Medicine
Shoppe, 73 FR 364 (DEA 2008); see Jackson, 72 FR at 23,853; John H.
Kennedy, 71 FR 35,705, 35,709 (DEA 2006); see also Hoxie v. DEA, 419
F.3d 477, 483 (6th Cir. 2005) ("admitting fault" is "properly
consider[ed]" by DEA to be an "important factor []" in the public
interest determination). An applicant's acceptance of responsibility
for his prior misconduct is a highly relevant consideration under this
factor. See Barry H. Brooks, 66 FR 18,305, 18,309 (DEA 2001); Prince
George Daniels, D.D.S., 60 FR 62,884, 62,887 (DEA 1995); Carmel Ben-
Eliezer, M.D., 58 FR 65,400, 65,401 (DEA 1993).
Specifically, Dr. Reitman candidly admitted to his abuse from the
moment he was confronted by DEA investigators, even admitting to abuse
beyond the Government's proffered evidence. [FOF 12, 15, 26, 31, 35].
He cooperated in almost every way, choosing to follow the advice of his
attorney and not to relinquish his registration and controlled
substances until the DEA had a warrant, but ultimately did voluntarily
surrender the controlled substances. [FOF 17, 19, 20]. Dr. Reitman
immediately entered treatment programs. [FOF 38, 39, 40, 43, 50, 73].
[[Page 60900]]
The Respondent presented numerous witnesses involved in Dr. Reitman's
rehabilitation and medical practice. [FOF 48, 49, 57, 66, 72, 80, 85,
90]. Every witness on the topic of rehabilitation stated that he has
excelled and is extremely committed to overcoming his addiction. [FOF
54-55, 62, 64, 70, 77, 87]. Furthermore, he is involved with his
synagogue and has the full support of his wife and family. [FOF 67, 69,
70, 79]. Nine months have passed since the day he was confronted by the
DEA, and he has not ingested or even ordered a controlled substance
since. [FOF 28, 42].
Past DEA cases have involved practitioners whose registrations were
either not revoked or their applications were not denied despite more
reprehensible conduct than Dr. Reitman's self-prescribing. See Judy L.
Henderson, D.V.M., Grant of Restricted Registration, 65 FR 5,672 (DEA
2000); Jimmy H. Conway, Jr., M.D., 64 FR 32,271 (DEA 1999) (Respondent
was addicted to Lorcet and Soma and used the names and DEA registration
numbers of his partners to order the drug for his personal use. He
candidly admitted the abuse and began a treatment program. The abuse
occurred in 1996, the Order to Show Cause was issued in 1998, and the
final order was submitted in 1999. Despite felony convictions, the
Respondent was permitted to retain his registration with
restrictions.); Robert G. Hallermeier, M.D., 62 FR 26,818 (DEA 1997)
(Respondent was an alcoholic with serious prescribing problems; granted
a registration with restrictions.); Thomson, 65 FR at 75,971 (both DA
and ALJ agreed that the physician "minimized her criminal actions and
significant breaches of professional judgment," but the evidence of
her "strong efforts to rehabilitate herself" ultimately warranted
granting her a restricted registration); John Porter Richards, D.O., 61
FR 13,878 (DEA 1996) (Applicant had been convicted of two felonies
related to controlled substances and subsequently sentenced to thirty
years in prison, twenty years of which were suspended. Thereafter, the
respondent's license to practice osteopathic medicine was revoked
before eventually being reinstated. However, at the application hearing
in Richards, that applicant "continued to maintain that he had not
committed the crimes for which he had been convicted." Nonetheless, in
Richards, the DA approved the applicant's application without
restrictions despite the fact that, at the hearing, the applicant
accepted his conviction but did not completely admit to the crimes for
which he was convicted.). Here, Dr. Reitman has without a doubt,
readily admitted fault and sought treatment, at which he has thrived.
[FOF 44, 54-55, 70, 77, 84, 88]. The Respondent testified and was
candid and truthful about his past abuse. [FOF 38-47]. Thus, the Deputy
Administrator consistently decides each case on its own merits. This
case warrants retaining a restricted registration.
I therefore find that Dr. Reitman has presented evidence sufficient
to prove that he can be entrusted with a DEA Certificate of
Registration.
V. Conclusion and Recommendation
I do not condone nor minimize the seriousness of the Respondent's
prior misconduct; however, because the Respondent seems to be well on
the road to rehabilitation, I recommend that Dr. Reitman be granted a
registration that restricts his handling of controlled substances to
merely prescribing and not storing or dispensing such drugs, and
requiring that he not issue controlled substance prescriptions to
himself or his family members. Further, I recommend the Respondent be
subject to quarterly reporting to his local DEA office of his
prescribing of controlled substances. I also recommend that Dr. Reitman
be ordered to consent to unannounced inspections by DEA personnel
without requiring an administrative inspection warrant. I recommend
these restrictions apply for three years from the date of the final
order so directing this result. In this way, the DEA can assure itself
of the Respondent's compliance with DEA regulations and of the
protection of the public interest.
Date: July 20, 2010.
Gail A. Randall,
Administrative Law Judge.
[FR Doc. 2011-25227 Filed 9-29-11; 8:45 am]
BILLING CODE 4410-09-P
NOTICE: This is an unofficial version. An official version of this publication may be obtained
directly from the Government Printing Office (GPO).
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