[Federal Register: July 14, 2008 (Volume 73, Number 135)]
[Notices]               
[Page 40380-40382]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jy08-105]                         

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

 
Armando B. Figueroa, M.D.; Revocation of Registration

    On November 14, 2007, I, the Deputy Administrator of the Drug 
Enforcement Administration, issued an Order to Show Cause and Immediate 
Suspension of Registration to Armando B. Figueroa, M.D. (Respondent), 
of Washington, DC. The Order immediately suspended and proposed the 
revocation of Respondent's DEA Certificate of Registration, BF0128810, 
as a practitioner, on the grounds that his continued registration was 
``inconsistent with the public interest'' and ``constitute[d] an 
imminent danger to public health and safety.'' Show Cause Order at 1 
(citing 21 U.S.C. 823(f) & 824(a)(4)).
    The Show Cause Order alleged that Respondent had ``repeatedly 
issued controlled substance prescriptions to [two individuals, S.S. and 
G.R.] for other than a legitimate medical purpose or while acting 
outside the usual course of professional practice in violation of 21 
CFR 1306.04(a).'' Show Cause Order at 1. More specifically, the Show 
Cause Order alleged that on October 17, 2007, law enforcement 
authorities had searched a hotel room occupied by S.S. and found 500 
dosage units of oxycodone, 630 dosage units of OxyContin, 400 dosage 
units of methadone, 180 dosage units of diazepam, and 30 dosage units 
of phentermine. Id. at 2. The Order also alleged that S.S. had in her 
possession eleven undated prescriptions for OxyContin and three 
prescriptions for methadone which Respondent had issued in the names of 
S.S. and G.R., two additional prescriptions for Oxycontin issued by 
Respondent on October 15, 2007 to S.S. and G.R., and ``$7,475.00 in 
cash.'' Id. Finally, the Order alleged that S.S. told law enforcement 
officers that she paid Respondent $100 for each prescription he issued 
and that Respondent had not physically examined her in years. Id.
    Based on the above, I found that Respondent had ``repeatedly issued 
controlled substance prescriptions outside the usual course of 
professional practice, and for other than a legitimate medical purpose, 
[and was] thereby facilitating the diversion of controlled 
substances.'' Id. Accordingly, I further found that Respondent's 
``continued registration during the pendency of these proceedings would 
constitute an imminent danger to public health and safety,'' and 
ordered the immediate suspension of his registration. Id. (citing 21 
U.S.C. 824(d)).
    On November 14, 2007, DEA Investigators served the Order to Show 
Cause and Immediate Suspension \1\ by leaving it at Respondent's office 
and registered location. Later that same day, Respondent telephoned a 
DEA Investigator to complain about the suspension of his registration. 
Subsequently, DEA Investigators learned that on the days that 
Respondent worked at his Washington office, Respondent stayed at his 
daughter's house. Accordingly, on November 29, 2007, DEA Investigators 
also delivered a copy of the Order to Show Cause and Immediate 
Suspension to Respondent's daughter at her residence.
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    \1\ The Order also fully explained that Respondent had a right 
to a hearing, the scheduled date of the hearing, the procedures for 
requesting a hearing, and that his failure to timely request a 
hearing would be deemed a waiver of his right. Show Cause Order at 
2-3.
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    Since the service of the Order to Show Cause and Immediate 
Suspension, neither Respondent, nor any one purporting to represent 
him, has requested a hearing. Because (1) more than thirty days have 
passed since the Order was served, and (2) no request for a hearing has 
been received, I conclude that Respondent has waived his right to a 
hearing. See 21 CFR 1301.43(d). I

[[Page 40381]]

therefore enter this Final Order without a hearing based on relevant 
material contained in the investigative file, see id. 1301.43(e), and 
make the following findings.

Findings

    Respondent is the holder of DEA Certificate of Registration, 
BF0128810, which authorized him (before I suspended the registration) 
to handle controlled substances in schedules II through V as a 
practitioner at his registered location in Washington, DC. Respondent's 
registration does not expire until September 30, 2010.
    During 2007, a DEA Investigator (DI) acquired physician prescribing 
profiles from several Washington, DC area pharmacies. The profiles 
showed that Respondent was prescribing large quantities of schedule II 
narcotic controlled substances including Percocet and OxyContin (80 
mg), both of which contain oxycodone. 21 CFR 1308.12(b)(1).\2\ Several 
pharmacists advised that a large number of young and seemingly healthy 
individuals were presenting the prescriptions, that these persons 
always paid cash for the prescriptions, and that they were traveling 
large distances to fill the prescriptions.
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    \2\ These drugs are typically prescribed to persons in severe 
pain but are also highly abused.
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    In April 2007, an Inspector with the South Carolina Bureau of Drug 
Control notified the DI that G.R. and S.S., who were residents of 
Conway, South Carolina and who lived together, were presenting to local 
pharmacies a large number of prescriptions for OxyContin and Percocet 
that were issued by Respondent. The Inspector related that when local 
pharmacists called Respondent to verify the prescription, Respondent 
would tell them to fill the prescription without even waiting to hear 
the patient's name or the drug that was prescribed. Moreover, most of 
the prescriptions were paid for with cash. The Inspector further 
advised that she had obtained from area pharmacies approximately 100 
OxyContin prescriptions which Respondent had issued to S.S. between 
December 2005 and September 2006.
    The DEA Investigator further determined that S.S. and G.R. had 
previously lived in La Plata, Maryland, but had moved to South Carolina 
in 2001. S.S. would nonetheless make the twelve-hour round trip from 
South Carolina to Washington periodically to obtain prescriptions from 
Respondent. The investigation further showed that while unemployment 
taxes had not been paid on either S.S. or G.R. since 2001, between 
January 17 and October 16, 2007, S.S. and G.R. had paid a total of more 
than $42,000 in cash to various pharmacies in South Carolina and 
Maryland to obtain oxycodone (80 mg), OxyContin (80 mg), oxycodone/
acetaminophen (5/325 mg) and methadone (40 mg), based on prescriptions 
issued by Respondent. The record further establishes that OxyContin (80 
mg) has a street value of $70 to $80 a pill and that the total street 
value of the OxyContin prescribed by Respondent to S.S. and G.R. during 
this period was between $352,800 and $403,200.
    On October 16, 2007, a Waldorf, Maryland pharmacy contacted the DI 
and informed her that S.S. had presented a prescription for ninety 
tablets of OxyContin (80 mg) issued by Respondent. The DI asked the 
pharmacist not to fill the prescription and to tell S.S. to come back 
later.
    The DI then contacted three other Waldorf pharmacies which S.S. and 
G.R. had previously used. At each of the pharmacies, the DI was told 
that S.S. had presented a prescription issued by Respondent for 90 
tablets of OxyContin (80 mg). At two of the pharmacies, S.S. had also 
told the pharmacists that she would pay cash, notwithstanding that the 
cost of the prescription was in excess of $1,000, and would pick up the 
prescription the following day. At the third pharmacy, S.S. had already 
picked up the prescription for which she paid $1,134 in cash.
    Thereafter, the DI requested the assistance of narcotics officers 
with the Charles County Sheriff's Office to conduct surveillance of 
S.S. The Detectives agreed and went to one of the pharmacies. There, 
they observed S.S. arrive in a vehicle with South Carolina license 
plates and enter the pharmacy. The Detectives observed S.S. as she 
picked up the prescription and paid for it with $985.70 in cash. The 
Detectives then followed S.S. to a local hotel, which she entered. The 
Detectives contacted the hotel and determined that S.S. was scheduled 
to depart on October 19. The Detectives were also told that S.S. had 
paid cash for her room.
    The next day, the Detectives obtained warrants to search S.S.'s 
hotel room and vehicle, as well as to arrest her on state charges of 
possession of Oxycontin with intent to distribute and possession of a 
control dangerous substance. Shortly thereafter, the Detectives 
executed the search warrants and arrested S.S.
    The Detectives found that S.S had in her possession $7,475 in cash, 
500 dosage units of oxycodone/acetaminophen (5/325 mg), 630 dosage 
units of OxyContin (80 mg), 180 dosage units of diazepam (10 mg), 30 
dosage units of phentermine (37.5 mg), six dosage units of phentermine 
(30 mg), and 400 dosage units of methadone. Moreover, S.S. had in her 
possession seventeen prescriptions from Respondent, including fifteen 
which were undated. Nine of the prescriptions were in S.S.'s name; the 
other eight were written in G.R.'s name.
    Seven of S.S.'s prescriptions (including six of the undated ones) 
were for 90 tablets of OxyContin (80 mg); the other two were for 120 
tablets of methadone (40 mg). Five of G.R.'s prescriptions (including 
four of the undated ones) were for 90 tablets of OxyContin (80 mg), 
another prescription was for 180 tablets of OxyContin (80 mg), and one 
was for 90 tablets of methadone (40 mg).\3\
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    \3\ The remaining prescription issued to G.R. was for a non-
controlled drug.
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    During the search, the Detectives found in the trash numerous 
prescription labels which had been torn off the bottles. They also 
found a piece of paper which according to S.S., was a shopping list of 
the prescriptions that she had sought from Respondent.
    During a post-arrest interview, S.S. stated that Respondent charges 
$100 cash for each prescription, that she had purchased as many as 
twenty prescriptions from him at a time, that the prescriptions were 
not dated, and that Respondent had not physically examined her in 
years. She also stated that she could not remember the last time 
Respondent was examined by Respondent and that G.R. rarely traveled to 
Washington, DC. S.S. further stated that she would call Respondent to 
order the prescriptions and that she would pay Respondent's assistant; 
S.S. did not, however, obtain a receipt. S.S. also stated that 
Respondent was giving her methadone because she was trying to wean 
herself off of OxyContin.

Discussion

    Section 304(a) of the Controlled Substances Act provides that a 
registration to ``dispense a controlled substance * * * may be 
suspended or revoked by the Attorney General upon a finding that the 
registrant * * * has committed such acts as would render his 
registration under section 823 of this title inconsistent with the 
public interest as determined under such section.'' 21 U.S.C. 
824(a)(4). In making the public interest determination, the Act 
requires the consideration of the following factors:

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

[[Page 40382]]

    (2) The applicant's experience in dispensing * * * controlled 
substances.
    (3) The applicant's conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

Id.
    ``[T]hese factors are * * * considered in the disjunctive.'' Robert 
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or 
a combination of factors, and may give each factor the weight [I] 
deem[] appropriate in determining whether a registration should be 
revoked.'' Id. Moreover, I am ``not required to make findings as to all 
of the factors.'' Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see 
also Morall v. DEA, 412 F.3d 165, 173-74 (D.C. Cir. 2005).\4\
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    \4\ Under section 304(d), the ``[t]he Attorney General may, in 
his discretion, suspend any registration simultaneously with the 
institution of proceedings under this section, in cases where he 
finds that there is an imminent danger to the public health or 
safety.'' 21 U.S.C. 824(d).
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    Having considered all of the factors, I conclude that the evidence 
under factors two and four is dispositive and establishes that 
Respondent has committed acts which render his continued registration 
``inconsistent with the public interest.'' 21 U.S.C. 824(a)(4). 
Accordingly, Respondent's registration will be revoked.

Factors Two and Four--Respondent's Experience in Dispensing Controlled 
Substances and Record of Compliance With Applicable Laws

    Under DEA regulations, a prescription for a controlled substance is 
not ``effective'' unless it is ``issued for a legitimate medical 
purpose by an individual practitioner acting in the usual course of his 
professional practice.'' 21 CFR 1306.04(a). This regulation further 
provides that ``an order purporting to be a prescription issued not in 
the usual course of professional treatment * * * is not a prescription 
within the meaning and intent of [21 U.S.C. 829] and * * * the person 
issuing it, shall be subject to the penalties provided for violations 
of the provisions of law related to controlled substances.'' Id. As the 
Supreme Court recently explained, ``the prescription requirement * * * 
ensures patients use controlled substances under the supervision of a 
doctor so as to prevent addiction and recreational abuse. As a 
corollary, [it] also bars doctors from peddling to patients who crave 
the drugs for those prohibited uses.'' Gonzales v. Oregon, 126 S.Ct. 
904, 925 (2006) (citing Moore, 423 U.S. 122, 135 (1975)).
    The evidence in this case overwhelmingly demonstrates that 
Respondent used his prescribing authority to engage in the criminal 
distribution of controlled substances in violation of 21 U.S.C. 841. 
The statements of S.S. and the evidence uncovered in the course of the 
investigation make plain that Respondent was engaged in out-and-out 
drug pushing and not the legitimate practice of medicine.\5\
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    \5\ Given the evidence, this is not a case which requires either 
expert testimony to support findings regarding whether Respondent 
prescribed pursuant to a valid doctor-patient relationship or an 
analysis of state standards pertaining to the practice of medicine. 
In short, Respondent's conduct does not remotely resemble the 
legitimate practice of medicine.
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    More specifically, at a single visit, Respondent issued multiple 
prescriptions for highly abused schedule II controlled substances, 
which were undated and thus in violation of DEA regulations for this 
reason as well. See 21 CFR 1306.05.\6\ Respondent did not examine S.S.; 
he also issued multiple prescriptions in the name of G.R., without even 
seeing him. Finally, S.S. would purchase from Respondent as many as 
twenty prescriptions at a time and pay cash for which no receipt was 
provided. In short, Respondent's conduct was not remotely consistent 
with the legitimate practice of medicine. Rather, it was drug pushing.
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    \6\ The 80 mg strength is the second strongest dosage unit of 
Oxycodone and typically has a street value of $80 per tablet.
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    I thus conclude that Respondent's experience in dispensing 
controlled substances and his record of repeatedly violating Federal 
law and regulations make clear that his continued registration ``is 
inconsistent with the public interest.'' 21 U.S.C. 823(f). Finally, for 
the same reasons which led me to find that Respondent posed ``an 
imminent danger to the public health or safety,'' id. Sec.  824(d), I 
conclude that the public interest requires that his registration be 
revoked effective immediately and that any pending applications be 
denied. See 21 CFR 1316.67.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a), as well as 28 CFR 0.100(b) & 0.104, I hereby order that DEA 
Certificate Registration, BF0128810, issued to Armando B. Figueroa, 
M.D., be, and it hereby is, revoked. I further order that any pending 
application for renewal or modification of the registration be, and it 
hereby is, denied. This order is effective immediately.

    Dated: July 2, 2008.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E8-15922 Filed 7-11-08; 8:45 am]

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