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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 11-28]

Rene Casanova, M.D.; Decision and Order

On September 29, 2011, Administrative Law Judge Timothy D. Wing issued the attached recommended decision.1 Neither party filed exceptions to the decision.2

Having considered the entire record, I have decided to adopt the ALJ's findings of fact and conclusions of law except as discussed below.3 While I agree with the ALJ that substantial evidence supports the conclusion that Respondent lacked a legitimate medical purpose and acted outside of the usual course of professional practice in issuing controlled substance prescriptions to three undercover officers, ALJ 62-64, I find some of his reasoning unsupported by substantial evidence.

More specifically, with respect to the undercover officer who posed as patient J.S., the ALJ, citing the evidence that she had a negative drug screen, used slang to refer to oxycodone and admitted that "she had not seen a doctor for the controlled substances she admitted taking," concluded that J.S.'s " `risk for medication misuse or diversion' was patent." ALJ at 56. The ALJ then concluded that because "Respondent conceded that he did not refer [J.S.] to a specialist," and did not "otherwise display[] `special attention' to her heightened risk of diversion," his conduct was "inconsistent with" Fla. Admin. Code Ann. r. 64B8-9.013(e).Id.at 56-57.According to this provision, which has since been superceded:

Fla. Admin. Code Ann. r. 64B8-9.013(e).

Of significance, no authority (i.e.,such as a decision of either the Florida Board of Medicine or Florida courts), is cited to establish that this provision has been interpreted as imposing a mandatory obligation of consultation or referral. Moreover, at no point did the Government's Expert testify that given the presentation of J.S. as a patient, the accepted standard of medical practice required that Respondent refer her to another physician.

It is true that the Government's expert criticized Respondent "for failing to inquire whether the patient had a substance abuse history or history of addiction." ALJ at 61. While this appears to be a violation of the standard governing the "evaluation of the patient," and the Government's Expert testified as to the importance of determining whether a patient has a substance abuse and addiction history, Tr. 372-73, it is not clear why the failure to do so establishes that his conduct was inconsistent with the then-existing referral standard.SeeALJ at 61.

There is, however, substantial evidence to support the finding that Respondent acted outside of the usual course of professional practice and lacked a legitimate medical purpose when he prescribed controlled substances to J.S. (as well as the two other undercover officers). With respect to all three patients, the Government's Expert testified that Respondent did not take an appropriate history or perform an appropriate physical examination. Tr. 335. While each of the undercovers provided an MRI, the Government Expert explained that an MRI is "simply a diagnostic tool" and that "finding [a] pathology on an MRI does not entitle any practitioner to prescribe controlled substances,"id.at 336, because a "pathology of an MRI in no way indicates that there is any painful condition" and must be correlated with the patient's history and physical examination findings.Id.at 365. The Government further testified that Respondent's documentation was "substandard" and "very sketchy,"id.at 337, and that he did not "support the need for the controlled substances with appropriate documentation establishing a valid medical need and treatment plan."4 Id.at 339. Finally, the Government's Expert testified that "[i]n all of the cases, the [Respondent] prescribed controlled substances outside the usual course of professional practice or for other than a legitimate medical purpose."Id.

Under Agency precedent, these findings establish aprima faciecase that Respondent "has committed such as acts as would render his registration * * * inconsistent with the public interest." 21 U.S.C. 824(a)(4). I further agree with the ALJ's conclusion that Respondent has failed to accept responsibility for his misconduct in prescribing controlled substances to the undercover officers and that he has also failed "to demonstrate that he will not engage in future misconduct."Id.at 72. Accordingly, I will adopt the ALJ's recommendation that Respondent's registration be revoked.

Order

Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration BC8677746, issued to Rene Casanova, M.D., be, and it hereby is, revoked. I further order thatany pending application of Rene Casanova, M.D., to renew or modify the above registration, be, and it hereby is, denied. This Order is effective October 19, 2012.

Dated: August 31, 2012. Michele M. Leonhart, Administrator.
ACTION: 4The Government's Expert also testified that it is incumbent on a physician to outline a treatment plan at the time he writes a prescription.SeeTr. 345-46, 382, 386.