E7-24608. Patrick K. Riggs, M.D.; Denial of Application

On June 19, 2007, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Patrick K. Riggs (Respondent), of Fort Worth, Texas. The Show Cause Order proposed the denial of Respondent's pending application for a DEA Certificate of Registration as a practitioner, on the ground that his registration would be “inconsistent with the public interest.” Show Cause Order at 1 (citing 21 U.S.C. 823(f) & 824(a)(4)).

The Show Cause Order specifically alleged that “from May 2005 through August 2006 [Respondent], ordered 22,500 dosage units of hydrocodone from Henry Schein, Inc.,” and that notwithstanding his “assertions to Henry Schein, Inc., that [he was] practicing medicine during that period [Respondent], subsequently admitted to DEA Diversion Investigators that [he] had not practiced medicine since 1997 and had no current patients.” Id. The Show Cause Order alleged that on August 31, 2006, Respondent had met with DEA Diversion Investigators at his home and admitted to them that he had consumed all of the hydrocodone drugs that he had obtained from Henry Schein, Inc. Id.

The Show Cause Order further alleged that Respondent did not maintain the purchasing and dispensing records required under federal law for the controlled substances he had obtained from Henry Schein, Inc. Id. Finally, the Show Cause Order alleged that during the aforementioned meeting with DEA investigators, Respondent had upon the advice of counsel, voluntarily surrendered his DEA Registration and agreed not to apply for a new registration for a two-year period. Id. at 2.

On June 25, 2007, the Show Cause Order, which also notified Respondent of his right to request a hearing on the allegations, was served on him by a Federal Express delivery to his residence, which is also the address of his proposed registered location. Because: (1) More than thirty days have passed since service of the Show Cause Order, and (2) neither Respondent, nor anyone purporting to represent him, has requested a hearing, I conclude that Respondent has waived his right to a hearing. See 21 CFR 1301.43(d). I therefore enter this Final Order without a hearing based on relevant material contained in the investigative file, see id. 1301.43(e), and make the following findings.

Findings

Respondent previously held a DEA Registration as a practitioner, which authorized him to dispense controlled substances in schedules II through V. On various dates between May 2005 and August 2006, DEA received several reports from Henry Schein, Inc., regarding Respondent's excessive purchases of controlled substances. These reports showed that during the above period, Respondent purchased 22,500 dosage units of combination hydrocodone/acetaminophen (all in 10/325 mg. strength), 1400 dosage units of clonazepam (in both 1 mg. and 2 mg. strength), 1200 dosage units of aspirin with codeine (60 mg.), 500 dosage units of acetaminophen with codeine (60 mg.), and hydrocodone with ibuprofen (7.5/200 mg.).^[1]

Sometime around September 2005, a Schein employee apparently questioned Respondent regarding his purchases. Accordingly, on September 24, 2005, Respondent faxed a letter which stated that he had served as “a consultant to the TXSBME” ^[2] from 1995 through 1998 “in the area of disciplinary action,” and had “earned * * * a great many enemies (because of my testimony in med[ical] malpractice cases for the state.” Respondent further wrote that he was engaged in the practice of “general medicine,” and that his “patient base is select. The concentration is chronic pain secondary to terminal illness[,] i.e., cancer.”

On August 31, 2006, DEA investigators went to Respondent's residence (and registered location) and met with Respondent and his attorney regarding his excessive purchases. During the interview, Respondent was asked what medications he took. Respondent went to another room and retrieved approximately twenty-five containers of non-controlled prescription drugs. Upon further questioning, Respondent admitted that he had been on methadone and pulled an empty container of methadone from his pocket.

During the interview, Respondent also admitted that he had not practiced medicine since 1997 and did not have any patients. One of the investigators then presented to Respondent's attorney a spreadsheet listing his controlled substance purchases from Schein. After Respondent and his lawyer were allowed to privately discuss the matter, Respondent admitted that he had used all of the controlled substances which he had purchased from Schein. Respondent also stated that to prevent damaging his liver, he had ground up the hydrocodone tablets to separate out the acetaminophen. Respondent also admitted that he had failed to maintain purchasing and dispensing records as required by Federal law.

Based on this information, the investigators advised Respondent's counsel that they would seek an Order to Show Cause to revoke his registration unless he voluntarily surrendered it. After consulting with his attorney, Respondent voluntarily surrendered his registration and signed the applicable form.^[3]

Two months later, on October 30, 2006, Respondent submitted an application for a new registration. On the form, Respondent acknowledged that he had surrendered his registration and explained that “[t]he surrender[] could be classified as a misunderstanding secondary to misinformation. I view it[] as an unusual set of unnecessary and humiliating circumstances brought together by a malicious third party.”

Discussion

Section 303(f) of the Controlled Substances Act provides that “[t]he Attorney General shall register practitioners * * * to dispense * * * controlled substances in schedule II, III, IV, or V, if the applicant is authorized to dispense * * * controlled substances under the laws of the State in which he practices.” 21 U.S.C. 823(f). Section 303(f) further provides that “[t]he Attorney General may deny an application for such registration if he determines that the issuance of such registration would be inconsistent with the public interest.” Id. In making the public interest determination, the Act requires the consideration of the following factors:

(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.

(2) The applicant's experience in dispensing * * * controlled substances.

(3) The applicant's conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.

(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.

(5) Such other conduct which may threaten the public health and safety.

Id.

[T]hese factors are * * * considered in the disjunctive.” Robert A. Leslie, M.D., 68 FR 15227, 15230 (2003). I “may rely on any one or a combination of factors, and may give each factor the weight [I] deem[] appropriate in determining whether a registration should be revoked.” Id. Moreover, I am “not required to make findings as to all of the factors.” Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005). In this case, I conclude that factors two and four are dispositive.^[4]

As the record demonstrates, Respondent acquired large quantities of controlled substances including 22,500 tablets of combination hydrocodone/acetaminophen (a schedule III controlled substance, 21 CFR 1308.13(e)), 1400 dosage units of clonazepam (a schedule IV controlled substance, 21 CFR 1308.14(c)), as well as drugs combining codeine with acetaminophen or aspirin. Respondent admitted that he personally used the drugs.

The record also shows that on September 24, 2005, Respondent represented to an employee of Henry Schein, Inc., that he was “practic[ing] general medicine,” with a “concentration in chronic pain secondary to terminal illness, i.e., cancer.” During the August 31, 2006 interview, however, Respondent admitted that he had not practiced medicine since 1997 and that he had no patients. The record further shows that after he faxed the letter to Schein, Respondent continued to order and received large quantities of controlled substances from it. Based on this evidence, I conclude that on numerous occasions, Respondent violated federal law by “knowingly or intentionally * * * acquir[ing] or obtain[ing] possession of a controlled substance by misrepresentation, fraud, [or] deception.” 21 U.S.C. 843(a)(3).

Respondent further admitted that he did not maintain the purchasing and dispensing records as required by federal law. See id. § 827(a)(3). Based on the above, I conclude that Respondent's record of non-compliance with federal laws related to controlled substances and his experience of self-dispensing controlled substances, establishes that granting him a registration would be “inconsistent with the public interest.” Id. § 823(f).

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well as 28 CFR 0.100(b) & 0.104, I order that the application of Patrick K. Riggs, M.D., for a DEA Certificate of Registration as a practitioner be, and it hereby is, denied. This order is effective January 18, 2008.

Dated: December 7, 2007.

Michele M. Leonhart,

Deputy Administrator.

Footnotes

1.  The reports also showed that Respondent had purchased two anabolic steroids, nandrolone and testosterone cypionate.

2.  Presumably, the Texas State Board of Medical Examiners.

3.  On the form, Respondent also “agree[d] not to re apply for a period of two years.”

4.  Having considered all of the factors, I conclude that factors one, three and five are not relevant.