Federal
Register Notices > Registrant
Actions - 2005 > Robert
A. Smith, M.D., Revocation of Registration
FR Doc 05-11250 [Federal Register: June 7, 2005 (Volume 70, Number 108)]
[Notices] [Page 33207-33209] From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn05-89]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Robert A. Smith, M.D., Revocation of Registration
This order serves as a correction of the final order previously issued in
this matter and published on May 10, 2005. On September 29, 2004, the Deputy
Administrator, Drug Enforcement Administration (DEA), issued an Order to Show
Cause/Immediate Suspension of Registration to Robert A. Smith, M.D. (Dr. Smith)
who was notified of an opportunity to show cause as to why DEA should not revoke
his DEA Certificate of Registration AS6932669 under 21
U.S.C. 824(a)(4) and deny any pending applications for renewal or
modification of that registration under 21
U.S.C. 823(f). Dr. Smith was further notified that his registration was
being immediately suspended under 21 U.S.C. 824(d) as an imminent danger to the
public health and safety.
The Order to Show Cause alleged in relevant part, that Dr. Smith diverted
controlled substances for a substantial time by knowingly issuing fraudulent
prescriptions to individuals, without a bona fide doctor-patient relationship or
legitimate medical purpose. The Order to Show Cause also notified Dr. Smith that
should no request for a hearing be filed within 30 days, his hearing right would
be deemed waived.
On October 20, 2004, a DEA investigator personally served the Order to Show
Cause/Immediate Suspension of Registration on Dr. Smith's attorney at
Respondent's medical office in Philadelphia, Pennsylvania. Since that date, DEA
has not received a request for a hearing or any other reply from Dr. Smith or
anyone purporting to represent him in this matter.
Therefore, the Deputy Administrator of DEA, finding that (1) thirty days
having passed since personal delivery of the Order to Show Cause/ Immediate
Suspension of Registration to the registrant and (2) no request for hearing
having been received, concludes that Dr. Smith is deemed to have waived his
hearing right. See David W. Linder, 67 FR 12,579 (2002). After considering
material from the investigative file in this matter, the Deputy Administrator
now enters her final order without a hearing pursuant to 21
CFR 1301.43(d) and (e) and 1301.46.
The Deputy Administrator finds that Dr. Smith is registered with DEA as a
practitioner under Certificate of Registration AS6932669 with a registered
location at 1420 Locust Street, Suite 200, Philadelphia, Pennsylvania. In May
2003, DEA began investigating Dr. Smith as a result of complaints from area
pharmacies that were encountering large numbers of young, seemingly healthy
individuals, filling prescriptions issued by Dr. Smith for OxyContin and
Percocet, both schedule II controlled substances. These individuals paid cash
for their prescriptions and appeared to be traveling long distances to have them
prescribed and filled.
On June 27, 2003, Independence Blue Cross (IBC) insurance investigators
interviewed IBC beneficiary "H.B.'' regarding prescriptions for OxyContin,
Percocet and Methadone which had been issued by Dr. Smith under her name and
insurance data. H.B. had never seen or heard of Dr. Smith and had no medical
conditions warranting the prescriptions. It was also established that H.B.'s
son's father, "M.P.,'' was a heroin addict and that M.P.'s sister, "L.P.,'' who
also had a history of narcotic's abuse, worked for Dr. Smith as his office
assistant.
On July 9, 2003, NBC investigators interviewed "C.P.,'' who was L.P.'s
sister. IBC's records reflected that on May 10, 2003, Dr. Smith issued
prescriptions for Percocet and Alprazolam (Xanax), a schedule IV controlled
substance, using C.P.'s name and policy, which were then paid for by insurance
company. Investigators determined C.P. had never met or been examined by Dr.
Smith, that she did not receive the prescriptions written in her name and had no
medical conditions warranting them.
[[Page 33208]]
On November 6, 2003, DEA Diversion Investigators responded to the Lombard
Apothecary in Philadelphia to interview "D.N.,'' who had attempted to fill a
prescription for OxyContin issued by Dr. Smith using D.N.'s mother's name and
insurance. D.N. admitted that her mother had no knowledge of the prescription
and was not a patient of Dr. Smith. D.N. had asked Dr. Smith to issue her
fraudulent prescriptions, as she had no medical insurance of her own. He also
had written her a prescription for OxyContin, using her brother's name and
insurance data. D.N. then used the OxyContin to feed her personal narcotics
addiction.
On November 26, 2003, "J. S.'' was interviewed by local law enforcement
authorities, with DEA Diversion Investigators present. She admitted receiving
seven to ten prescriptions for OxyContin from Dr. Smith, per visit, on a weekly
basis. These prescriptions would be written in J.S.'s name, as well as her
father's and fiancee's names. She paid $65.00 per visit and an additional
$100.00, each time, to ensure Dr. Smith would continue providing her fraudulent
prescriptions. Additionally, Dr. Smith would ask J.S. for sexual favors during
her office visits. While she personally declined to fulfill his requests, as a
substitute, she paid another woman $100.00 to perform a sexual act upon Dr.
Smith. J.S. also reported that Dr. Smith's office assistant, L.P., had provided
her blank prescriptions in return for $40.00 and OxyContin pills.
Dr. Smith also wrote prescriptions for "A.D.,'' who had heard of Respondent's
"street'' reputation for providing controlled substance prescriptions. A.D. was
first seen by Dr. Smith in February 2003 and the only examination involved
measuring A.D.'s blood pressure. In March and April 2003, Dr. Smith issued
prescriptions for OxyContin and Percocet, using both A.D.'s and his wife's
names. In February 2004, Dr. Smith also wrote ten prescriptions for A.D. using
A.D.'s name, his wife's name and a friend's name.
On February 22, 2004, "S.K.'' was found, apparently unresponsive, by her
mother-in-law, who called 911. S.K. died of a drug overdose and a few weeks
later S.K.'s mother-in-law contacted DEA Diversion Investigators and advised
that S.K. had been addicted to narcotics and Dr. Smith was the source of her
prescriptions. The Philadelphia Medical Examiner's Office provided DEA
investigators 31 prescription bottles recovered from S.K.'s residence. All of
their labels indicated they were prescribed by Dr. Smith and the majority was
for schedule II and IV controlled substances.
On May 20, 2004, a Confidential Source (CS) was provided $400.00 to purchase
fraudulent prescriptions written by Dr. Smith. The CS used that money to obtain
twelve separate prescriptions from an individual who, in turn, had received them
from Dr. Smith.
On May 27, 2004, Diversion Investigators interviewed "J.G.'' who, for six or
eight months, had been seeing Dr. Smith on a weekly basis. J.G. would give Dr.
Smith a list of fictitious names and types of controlled substances he desired
and Dr. Smith would issue three prescriptions under each name, usually for
Percocet, OxyContin and Xanax. Dr. Smith issued between nine and fifteen
fraudulent prescriptions for controlled substances per visit and received
$100.00 for each set of three prescriptions. J.G. then sold the prescriptions to
a third party who, in turn, sold the drugs on the street. Dr. Smith was aware of
and knowingly participated in this scheme.
On June 1, 17 and 19, 2004, a CS visited Dr. Smith's medical office. On each
occasion, he obtained fraudulent prescriptions for Xanax, OxyContin and Percocet,
paying Dr. Smith $500.00 for fifteen prescriptions, written under five different
fraudulent identities.
On June 29, 2004, Diversion Investigators were contacted by Family Meds, a
mail order pharmacy in Connecticut. On June 22, 2004, the pharmacy received five
prescriptions for controlled substances written by Dr. Smith for "M.B.'' Family
Meds had contacted Dr. Smith, who verified issuing the prescriptions. However,
the pharmacy ultimately refused to fill them and verified that on June 6, 2004,
M.B. had filled identical prescriptions issued by Dr. Smith at another pharmacy.
A review of reports from the Pennsylvania Attorney General's Office, Bureau
of Narcotics Investigation and Drug Control showed that from January 14, 2002,
to April 30, 2004, Dr. Smith issued over 6,500 prescriptions for schedule II
narcotic controlled substances. These prescriptions constituted a significant
portion of the total schedule II prescriptions filled in the Philadelphia and
New Jersey area.
Pursuant to 21 U.S.C.
823(f) and 824(a)(4),
the Deputy Administrator may revoke a DEA Certificate of Registration and deny
any pending applications for renewal of such registration, if she determines
that the continued registration would be inconsistent with the public interest.
Section 823(f) requires that the following factors be considered in determining
the public interest:
(1) The recommendation of the appropriate state licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting research with
respect to controlled substances.
(3) The applicant's conviction record under Federal or state laws relating to
the manufacture, distribution, and 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 or safety.
These factors are considered in the disjunctive; the Deputy Administrator may
rely on any one or a combination of factors and may give each factor the weight
she deems appropriate in determining whether a registration should be revoked or
an application for registration denied. See Henry J. Schwartz, Jr., M.D., 54 FR
16,422 (1989).
As to factor one, the recommendation of the appropriation state licensing
board or professional disciplinary authority, there is no evidence in the
investigative file that the State of Pennsylvania has yet taken adverse action
against Dr. Smith's medical license. However, "inasmuch as State licensure is a
necessary but not sufficient condition for a DEA registration* * * this factor
is not dispositive.'' See Edson W. Redard, M.D., 65 FR 30,616, 30,619 (2000).
With regard to factors two and four, Respondent's experience in handling
controlled substances and his compliance with applicable controlled substance
laws, the investigative file contains overwhelming evidence that Dr. Smith
unlawfully prescribed and diverted controlled substances over an extensive
period of time. He knowingly prescribed controlled substances to individuals
without bona fide doctor-patient relationships and issued fraudulent
prescriptions destined to feed the recipient's personal addiction or to be sold
on the street. He did so in a calculated manner, for financial gain, violating
multiple state and federal laws and abysmally failing to meet the rudimentary
responsibilities of a physician and registrant. Thus, factors two and four weigh
in favor of a finding that continued registration would be inconsistent with the
public interest.
Factor three, the applicant's conviction record under Federal or state laws
relating to the manufacture, distribution, or dispensing of controlled
substances, is not relevant for consideration, as there is no evidence Dr. Smith
has yet been convicted of any
[[Page 33209]]
crime related to controlled substances. However, it is noted the
investigation has been provided to Federal authorities for possible initiation
of criminal charges.
With respect to factor five, other conduct that may threaten the public
health and safety, Respondent's actions discussed above are also relevant under
this factor. The Deputy Administrator is particularly troubled by Dr. Smith's
efforts to enrich himself at the expense of the public health and safety. Not
only has a large quantity of controlled substances been diverted over an
extensive period of time as a result of his illegal activities, at least one
patient has died of a drug overdose after taken medications prescribed by Dr.
Smith.
The exact degree of suffering and costs, both social and economic, stemming
from Dr. Smith's activities will never be known. Suffice it to say, his
unprofessional and criminal conduct has resulted in the diversion of large
quantities of controlled substances in the Philadelphia area for a lengthy
period of time, with correspondingly severe consequences for public health and
safety.
In sum, Dr. Smith's cavalier disregard for the law and abandonment of his
responsibilities as a physician and registrant cannot be tolerated. They weigh,
irresistibly, in favor of a finding that continued registration would not be in
the public interest.
Accordingly, the Deputy Administrator of the Drug Enforcement Administration,
pursuant to the authority vested in her by 21
U.S.C. 823 and 28 CFR 0.100(b), and 0.104, hereby orders that DEA
Certificate of Registration AS6932669, issued to Robert A. Smith, M.D., be, and
it hereby is, revoked. The Deputy Administrator further orders that any pending
applications for renewal or modification of such registration be, and they
hereby are, denied. This order is effective July 7, 2005.
Dated: May 25, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-11250 Filed 6-6-05; 8:45 am]
BILLING CODE 4410-09-M
NOTICE: This is an
unofficial version. An official version of these publications may be obtained
directly from the Government Printing Office (GPO).
|