[Federal Register Volume 75, Number 157 (Monday, August 16, 2010)]
[Notices]
[Pages 49992-49994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20201]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Peter W.S. Grigg, M.D.; Revocation of Registration
On January 2, 2009, I, the Deputy Administrator of the Drug
Enforcement Administration, issued an Order to Show Cause and Immediate
Suspension of Registration to Peter W.S. Grigg, M.D. (Respondent), of
Colorado Springs, Colorado. The Show Cause Order proposed the
revocation of Respondent's DEA Certificate of Registration, BG2107856,
which authorized him to dispense controlled substances as a
practitioner, and the denial of any pending application to renew or
modify the registration on the ground that his ``continued registration
is inconsistent with the public interest.'' Show Cause Order at 1.
More specifically, the Show Cause Order alleged that on four
separate occasions beginning on October 17, 2008, and ending on
December 5, 2008, Respondent violated Federal law by selling
prescriptions for oxycodone, a schedule II controlled substance, to a
police officer acting in an undercover capacity, which lacked a
``legitimate medical purpose'' and were ``outside the usual course of
professional practice.'' Id. at 1-2 (citing 21 U.S.C. 841(a)(1) and 21
CFR 1306.04(a)). The Show Cause Order further alleged that on November
25, 2008, Respondent post-dated the oxycodone prescription and also
``provided three capsules of MDMA, a schedule I controlled substance''
and 60 tablets of oxycodone 10 mg. to the undercover officer, and that
these distributions also lacked a legitimate medical purpose and were
outside of the usual course of professional practice. Id. at 2.
Finally, the Show Cause Order alleged that, on December 5, 2008,
Respondent also unlawfully distributed four fentanyl 400 mg. tablets
and one fentanyl transdermal patch 12 mcg./hr. to the undercover
officer. Id.
Based on the above, I further found that Respondent's continued
registration during the pendency of the proceeding would ``constitute[]
an imminent danger to the public health and safety.'' Id. I therefore
immediately suspended Respondent's registration. Id. (citing 21 U.S.C.
824(d) & 21 CFR 1301.36(e)). The Order also notified Respondent of his
right to request a hearing on the allegations and the procedure for
doing so. Id. at 3.
On January 8, 2009, a DEA Diversion Investigator personally served
the Order to Show Cause and Immediate Suspension of Registration on
[[Page 49993]]
Respondent. Affidavit of DI at 12. Since then, neither Respondent, nor
anyone purporting to represent him, has either requested a hearing or
submitted a written statement in lieu of a hearing. See 21 CFR
1301.43(a) & (c). Accordingly, I find that Respondent has waived his
right to a hearing and issue this Decision and Final Order based on the
record submitted by the Government. See id. at 1301.43(d) & (e). I make
the following findings.
Findings
Respondent is the holder of DEA Certificate of Registration,
BG2107856, which expires on September 30, 2010. Respondent has not
filed a renewal application.
On August 14, 2009, Respondent, who had been criminally charged
with multiple counts of violating Federal law, entered into a Plea
Agreement, Cooperation Agreement, and Stipulation of Facts with the
United States. See Plea Agreement at 15, U.S. v. Grigg, No. 09-CR-
00012-REB (D. Col. Aug. 19, 2009). Therein, Respondent admitted to the
following:
First, Respondent admitted that on October 17, 2008, he met an
undercover police officer in a parking lot in Colorado Springs,
Colorado and sold to the officer a prescription for 60 tablets of
oxycodone 30 mg., a schedule II controlled substance, in exchange for
$100. Id. at 10. Respondent further admitted that ``[t]he writing of
the prescription was not done as part of [his] legitimate medical
practice and was not for legitimate medical purposes.'' Id.
Second, Respondent admitted that on November 6, 2008, he met an
undercover police officer in Colorado Springs and sold to the officer a
prescription for 150 tablet of oxycodone 30 mg., in exchange for $1000.
Id. Respondent further admitted that ``[t]he writing of the
prescription was not done as part of [his] legitimate medical practice
and was not for legitimate medical purposes.'' Id.
Third, Respondent admitted that on November 25, 2008, he met an
undercover police officer in Colorado Springs and sold to the officer a
post-dated prescription for 150 oxycodone 30 mg., in exchange for
$1,000. Id. at 11. Respondent further admitted that ``[t]he writing of
the prescription was not done as part of [his] legitimate medical
practice and was not for legitimate medical purposes.'' Id. Respondent
also admitted that on this date, he distributed to the officer 60
tablets of oxycodone 10 mg., a schedule II controlled substance, and
that the distribution ``was not done as part of legitimate medical
practice and was not for legitimate medical purposes.'' Id. In
addition, Respondent admitted that on this date, he ``supplied the
undercover police officer with three doses of 3,4-
methylenedioxymethamphetamine (MDMA/ecstasy),'' a schedule II
controlled substance. Id. Based on the affidavit of a DEA Investigator,
I further find that Respondent distributed the MDMA as part of the same
transaction. Affidavit of DI at 9-10. I thus also find that the
distribution was not for a legitimate medical purpose.
Fourth, Respondent admitted that on December 5, 2008, he met an
undercover police officer in Colorado Springs and sold to the officer
320 tablets of oxycodone 10 mg., in exchange for $1,000. Plea Agreement
at 11-12. Respondent further admitted that the distribution ``was not
done as part of [his] legitimate medical practice and was not for
legitimate medical purposes.'' Id. at 11. Respondent admitted that on
this date, he also supplied the undercover officer with one fentanyl
transdermal patch and four tablets of fentanyl 400 mcg., both of which
are schedule II controlled substances. Id. at 12.
Discussion
Section 304(a) of the Controlled Substances Act (CSA) 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). With respect to a practitioner, the Act requires the
consideration of the following factors in making the public interest
determination:
(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. Sec. 823(f).
``[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).
The record contains no evidence as to whether the State of Colorado
has taken action against Respondent's controlled substance prescribing
authority (factor one). Moreover, while the record establishes that
Respondent has been charged with multiple felony violations of the CSA
and that Respondent has entered into a plea agreement with the United
States in which he admitted to multiple violations of the CSA, the
record does not contain a judgment of conviction (factor three).
However, under Agency precedent, neither of these findings is
dispositive. See Edmund Chein, 72 FR 6580, 6590 n.22 (2007); Mortimer
B. Levin, 55 FR 8209, 8210 (1990). Moreover, the evidence with respect
to factors two (Respondent's experience in dispensing controlled
substances) and four (Respondent's compliance with applicable laws
related to controlled substances) establishes that Respondent has
committed numerous acts which render his continued registration
``inconsistent with the public interest.'' 21 U.S.C. 824(a)(4).
Factors Two and Four--Respondent's Experience in Dispensing Controlled
Substances and Record of Compliance with Applicable Controlled
Substance Laws
Under a longstanding DEA regulation, 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. See also 21 U.S.C. 802(10) (defining the term
``dispense'' as meaning ``to deliver a controlled substance to an
ultimate user by, or pursuant to the lawful order of, a practitioner,
including the prescribing and administering of a controlled
substance'') (emphasis added).
As the Supreme Court recently explained, ``the prescription
requirement * * * ensures patients use controlled substances under the
[[Page 49994]]
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,
546 U.S. 243, 274 (2006) (citing United States v. Moore, 423 U.S. 122,
135, 143 (1975)).
Under the CSA, it is fundamental that a practitioner must establish
and maintain a bonafide doctor-patient relationship in order to act
``in the usual course of * * * professional practice'' and to issue a
prescription for a ``legitimate medical purpose.'' Laurence T.
McKinney, 73 FR 43260, 43265 n.22 (2008); see also Moore, 423 U.S. at
142-43 (noting that evidence established that physician ``exceeded the
bounds of `professional practice,''' when ``he gave inadequate physical
examinations or none at all,'' ``ignored the results of the tests he
did make,'' and ``took no precautions against * * * misuse and
diversion''). While the CSA generally looks to state law to determine
whether a doctor and patient have established a bonafide doctor-patient
relationship, see Kamir Garces-Mejias, 72 FR 54931, 54935 (2007);
United Prescription Services, Inc., 72 FR 50397, 50407 (2007), here,
there is no need to analyze the applicable provisions of Colorado law
because Respondent admitted in his plea agreement that he acted outside
of the usual course of professional practice and lacked a legitimate
medical purpose in issuing the prescriptions which he sold to the
undercover officer.
As found above, on four different occasions, Respondent sold
prescriptions for oxycodone, a schedule II controlled substance, to an
undercover police officer. Three of the prescriptions were for either
60 (Oct. 17) or 150 (Nov. 6 & 25) tablets of 30 mg. strength; the
remaining prescription was for 320 tablets of 10 mg. strength. In
addition, Respondent also physically distributed to the undercover
officer 60 tablets of oxycodone 10 mg., three tablets of MDMA/ecstasy,
one fentanyl patch, and four tablets of fentanyl 400 mcg., all of which
are schedule II controlled substances. In exchange, Respondent received
cash payments of $100 at the first transaction and $1000 at the
remaining three. As Respondent has admitted, his conduct during each of
the four transactions bears no semblance to the legitimate practice of
medicine. Rather, during each of these transactions, he engaged in a
drug deal and violated 21 U.S.C. 841(a)(1).
I thus conclude that Respondent's experience in dispensing
controlled substances and his criminal conduct in violation of Federal
law 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. section 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 of Registration, BG2107856, issued to Peter W.S. Grigg,
M.D., be, and it hereby is, revoked. This Order is effective
immediately.
Dated: July 30, 2010.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 2010-20201 Filed 8-13-10; 8:45 am]
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