Daily Rules, Proposed Rules, and Notices of the Federal Government
On September 29, 2011, Administrative Law Judge Timothy D. Wing issued the attached recommended decision.
Having considered the entire record, I have decided to adopt the ALJ's findings of fact and conclusions of law except as discussed below.
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).
Of significance, no authority (
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.
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,"
Under Agency precedent, these findings establish a
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 that