[Federal Register Volume 60, Number 198 (Friday, October 13, 1995)]
[Notices]
[Pages 53434-53437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25339]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 94-6]
Marta I. Blesa, M.D., Continuation of Registration
On October 14, 1993, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Snow Cause to Marta I. Blesa, M.D., (Respondent) of Temple
City, California, notifying her of an opportunity to show cause as to
why DEA should not revoke her DEA Certificate of Registration,
AB8787799, and should not deny any pending application for renewal of
her registration, under 21 U.S.C. 823(f) and 824(a)(4), as being
inconsistent with the public interest. Specifically, the Order to Show
Cause alleged that: (1) On at least five occasions in February and
March 1991, the Respondent provided prescriptions for controlled
substances to undercover agents without a legitimate medical purpose
and not in the usual course of professional treatment; and (2) on March
13, 1992, in the Superior Court of California, County of Los Angeles,
the Respondent pled nolo contendere to, and was convicted of, three
felony counts of willfully and unlawfully issuing a prescription for a
controlled substance without a legitimate medical need and not in the
usual course of professional treatment in violation of California
Health and Safety Code Section 11153. On November 4, 1993, the
Respondent, through counsel, filed a timely request for a hearing, and
following prehearing procedures, a hearing was held in Los
[[Page 53435]]
Angeles, California, on June 14 and 15, 1994, before Administrative Law
Judge Mary Ellen Bittner. At the hearing both parties called witnesses
to testify and introduced documentary evidence, and after the hearing,
counsel for both sides submitted proposed findings of fact, conclusions
of law and argument. On December 14, 1994, Judge Bittner issued her
Opinion and Recommended Ruling, recommending that the Respondent's DEA
registration not be revoked, subject to specified conditions. Neither
party filed exceptions to her decision, and on January 17, 1995, Judge
Bittner transmitted the record of these proceedings to the Deputy
Administrator.
The Deputy Administrator has considered the record in its entirety,
and pursuant to 21 CFR 1316.67, hereby issues his final order based
upon findings of fact and conclusions of law as hereinafter set forth.
The Deputy Administrator adopts, in full, the Opinion and Recommended
Ruling, Findings of Fact, Conclusions of Law and Decision of the
Administrative Law Judge, and his adoption is in no manner diminished
by any recitation of facts, issues and conclusions herein, or of any
failure to mention a matter of fact or law.
The Deputy Administrator finds that a Special Agent of the
California Department of Justice, Bureau of Narcotic Enforcement, as a
result of information received from an informant, conducted an
investigation of the Respondent. The informant told the Special Agent
that he abused opiates, specifically Dilaudid, which is a Schedule II
controlled substance, and that he was addicted to heroin. He also
stated that he had obtained triplicate prescriptions from the
Respondent using his own and several other names, and that he had paid
the Respondent for these prescriptions. Judge Bittner noted that
California law requires that prescriptions for most Schedule II
controlled substances be written on triplicate forms. The Special Agent
then contacted California's triplicate prescription database and
obtained information showing that between July 1987b and April 1990,
the Respondent had issued triplicate prescriptions in the names
provided by the informant, for over 3,400 dosage units, the majority of
which were for Dilaudid or Percodan, also a Schedule II controlled
substance.
Next, the informant placed a recorded phone call to the
Respondent's office on January 25, 1991, advised a member of the
Respondent's staff that he wanted to purchase two triplicate
prescriptions for two named individuals, neither of which was the
informant, and that the informant would pick up the prescriptions later
that day. In the presence of the Special Agent, the informant obtained
four prescriptions that day in the name of the two previously
identified individuals, and two of these prescriptions were for
Dilaudid. The Special Agent testified that about $96 was paid for these
prescriptions. On January 29, 1991, February 5, 1991, March 4, 1991,
March 8, 1991, March 22, 1991, and March 27, 1991, the Special Agent
either observed the informant pay for and receive triplicate
prescriptions for controlled substances in the name of other
individuals, or he actually paid for and received triplicate
prescriptions for controlled substances for himself or on behalf of
other named individuals, all issued by the Respondent. The
prescriptions were for various drugs containing controlled substances,
to include Dilaudid, Percodan, Valium, a Schedule IV controlled
substance, and Tylenol No. 4 which contains codeine, a Schedule III
controlled substance. At all times, neither the informant nor the
Special Agent complained, of presented symptoms for, a medical
condition.
On May 8, 1991, the Special Agent served a search warrant at the
Respondent's office and obtained a number of patients' records. He then
forwarded those records to Dr. Escondon, who reviewed them, the Special
Agent's reports of his undercover visits, and transcripts of his
conversations with the Respondent. By letter dated July 16, 1991, Dr.
Escondon advised the Special Agent that in his opinion none of the
prescriptions reviewed were for legitimate medical purposes, that the
Respondent knowingly wrote prescriptions for fictitious individuals,
that the patient records indicated that the Respondent had failed to
take adequate medical histories or perform appropriate physical
examinations, and that she did not attempt to determine the etiology of
the patients' conditions. He also wrote that in his opinion the
Respondent was aware that the drugs she prescribed were not being used
for legitimate medical reasons. This letter was made part of the record
over the Respondent's objection and was considered by the Deputy
Administrator with the Judge's noted caveat that Dr. Escondon's only
qualification of record was his M.D. degree.
On May 3, 1991, a complaint was issued based upon the prescriptions
the Respondent had issued to the Special Agent, charging her with ten
felony counts of unlawful prescribing in violation of Section 11153 of
California's Health and Safety Code. In March 1992, the Respondent
entered a plea of nolo contendere, and, among other things, she was
sentenced to surrender her triplicate prescription blanks.
At the hearing before Judge Bittner, the Respondent testified about
her professional credentials and about her family, to include two young
daughters. She also testified concerning specific instances in which
the informant, a man over six feet tall, had intimidated her by
harassing and threatening her and her family. She testified that there
was no police department in Temple City, but that she had talked to
someone at the Sheriff's Department on two occasions, and on both
occasions she had not received any assistance. She also testified that
in September 1989 her home had been burglarized, that the police had
told her that the burglary was drug-related, but that there was no
proof that the informant had been involved. The Respondent testified
that in late 1988 or in early 1989, she believed that the informant was
armed with an Army knife, and she was afraid he might kill someone to
obtain the prescriptions. However, the Respondent stated that in 1990
she stopped issuing triplicate prescriptions to the informant.
The Respondent also testified that, prior to issuing the informant
triplicate prescriptions for Dilaudid, she had never prescribed
Dilaudid to any other patient, and that in total she had issued
triplicate prescriptions no more than two or three times to two
patients, both of whom had cancer. However, the Respondent testified
that she did not think her triplicate prescription practices pertaining
to the informant and others associated with the informant were
appropriate, and that in order to prevent further situations such as
those involving the informant, she had undergone therapy and had taken
seminars about issuing prescriptions and medications. Respondent
testified that she was shy, but that her experience with the informant
and resulting therapy made her confident that such a situation would
not happen again. She emphasized that she knew the correct procedures
to use to issue triplicate prescriptions.
The record also contains testimony from the Respondent's staff and
patients, corroborating the Respondent's description of the informant's
intimidating and harassing manner in his treatment of her, her staff
members, and patients. These witnesses provided descriptions of
specific instances of the informant's aggressive and threatening
behavior, to include staff members' testimony about waiting after work
to go to their cars together if the informant
[[Page 53436]]
was in the vicinity, because they were afraid of him. The Respondent's
office manager testified about letters the Respondent gave or mailed to
the informant, advising him that she would no longer issue
prescriptions to him and that he should consult another physician for
treatment. However, she testified that, unlike other patients
Respondent so advised, the informant merely ignored the letters.
The record also contains testimony from the Respondent's colleagues
who had covered the Respondent's practice in her absence. One colleague
testified that she had had a threatening confrontation with the
informant after he had followed her to her home. This colleague further
testified about the Respondent's practice, and gave her opinion that
the Respondent was a competent doctor. Another colleague also testified
about the Respondent's practice, having had first-hand experience in
covering for the Respondent in her absence, and he gave his opinion
that the Respondent was conscientious in prescribing controlled
substances. Finally, the Respondent introduced into evidence
approximately fifty letters from colleagues, patients, friends, and
acquaintances attesting to her abilities as a physician and the
contribution her medical practice made to the community.
Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy
Administrator may revoke a DEA Certificate of Registration and deny any
application for such registration, if he determines that the continued
registration would be inconsistent with the public interest. Section
823(f) requires that the following factors be considered:
(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 or
safety. These factors are to be considered in the disjunctive; the
Deputy Administrator may rely on any one or a combination of factors
and may give each factor the weight he deems appropriate in determining
whether a registration should be revoked or an application for
registration denied. See Henry J. Schwarz, Jr., M.D., Docket No. 88-42,
54 FR 16422 (1989).
In this case, factors two, three, and four are relevant in
determining whether the Respondent's continued DEA registration would
be inconsistent with the public interest. First, the record clearly
establishes that part of the Respondent's experience in dispensing
controlled substances includes dispensing such substances on numerous
occasions between 1987 and 1990 to the informant and his associates
without legitimate medical purpose and not in the usual course of
professional treatment. The lack of adequate treatment record
documentation of clinical justification for continued dispensing of
controlled substances over a long period of time in individual patient
treatment plans, the issuing of prescriptions without medical
examination, and the knowing issuance of prescriptions for fictitious
individuals are documented examples of Respondent's experience in
dispensing controlled substances. Further, the record also establishes
that, during January through March 1991, the Respondent had dispensed
controlled substances to a Special Agent on several occasions, again
without legitimate medical purpose or in the usual course of
professional treatment. However, the Respondent testified that prior to
issuing prescriptions to the informant and his associates, she had
never prescribed Dilaudid, and in fact had only issued triplicate
prescriptions on no more than two or three occasions. These acts relate
to factor two, demonstrating the Respondent's experience in dispensing
controlled substances.
As to factor three, the Respondent's plea of nolo contendere and
resulting conviction on three counts of willfully and unlawfully
issuing a prescription for a controlled substance in violation of
California Health and Safety Code Section 11153, establishes a basis
for revoking the Respondent's registration by demonstrating her
inability to comply with state laws relating to the distribution of
controlled substances. See, e.g., Noell v. Bensinger, 586 F.2d 554, 557
(5th Cir. 1978) (holding that a federal conviction based on a plea of
nolo contendere was a sufficient basis for revocation of a DEA
certificate of registration).
Finally, the Respondent's conduct in dispensing controlled
substances to the informant, his associates, and the Special Agent
without legitimate medical purpose establishes that the Respondent did
not issue triplicate prescriptions in compliance with applicable State
law, and did not dispense controlled substances in compliance with
Federal law. This conduct is clearly relevant as to factor four.
The record contains other evidence which does not justify the
Respondent's misconduct, but is appropriately considered in determining
the public interest. Specifically, the Respondent acknowledged that her
conduct in response to the informant's demands was inappropriate, and
that she had taken corrective action in seeking therapy and
professional training about dispensing controlled substances. Further,
the record contains multiple letters recording observations of her
colleagues and patients as to the nature of her practice, her
professional level of medical competency, and her high level of ethical
and moral conduct. Also evidence of the extremely intimidating nature
of the informant and corroborated instances of threatening conduct
provides additional factors which do not justify the Respondent's acts,
but impact upon an analysis of the Respondent's conduct. Finally,
testimony given which described the medical services provided by the
Respondent to her community impacts upon the need for her continued
medical contributions to that community. Therefore, the Deputy
Administrator finds that the public interest is best served by not
revoking the Respondent's registration under 21 U.S.C. 823(f) and
824(a)(4) subject to the following restrictions: (1) The Respondent
shall not dispense directly or administer any controlled substance
except in a hospital setting; (2) the Respondent shall not issue
prescriptions for any Schedule II controlled substances unless another
physician has reviewed the patient record and concurs that the
prescription is medically necessary; (3) the Respondent shall transmit
quarterly to the Special Agent in Charge of DEA's Los Angeles Field
Division or his designee a list of all controlled substance
prescriptions she has issued; and (4) the Respondent shall consent to
inspections of her registered premises pursuant to notices of
inspection as described in 21 U.S.C. 880. These restrictions shall
remain in place for three years beginning on the date of this order.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823 and 824 and 21 CFR 0.100(b) and 0.104, hereby orders that DEA
Certificate of Registration, AB8787799, issued to Marta I. Blesa, M.D.,
be, and it hereby is, continued subject to the conditions enumerated
above. This order is effective November 13, 1995.
[[Page 53437]]
Dated: October 6, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-25339 Filed 10-12-95; 8:45 am]
BILLING CODE 4410-09-M
