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DEA Registration Revocation Not Arbitrary or Capricious

By Robyn Hagan Cain on December 30, 2011 11:10 AM

The holiday season may be a time for giving, but last week the Tenth Circuit Court of Appeals was more interested in taking.

Last Friday, the Tenth Circuit affirmed a Drug Enforcement Administration (DEA) decision to revoke a doctor's controlled substances registration -- and deny all pending requests for renewal or modification. It found that the DEA's decision was not arbitrary or capricious in light of substantial evidence that the doctor was unlawfully issuing prescriptions for controlled substances.

A DEA order to show cause why Dr. MacKay's controlled substances registration should not be revoked asserted, among other things, that:

"Dr. MacKay had issued prescriptions for controlled substances to a patient even after she told him she shared her prescription drugs with another person, had exchanged prescription drugs for sexual favors, had issued prescriptions for controlled substances without a legitimate medical purpose and without conducting appropriate diagnostic evaluations, and had been prescribing extraordinarily large amounts of highly addictive opioids."

An administrative law judge ruled that Dr. MacKay had "committed acts that are inconsistent with the public interest," and recommended that Dr. MacKay's controlled substances registration be revoked. The DEA revoked the registration, and Dr. MacKay appealed.

The Tenth Circuit Court of Appeals, reviewing the record under the narrow, arbitrary or capricious standard, affirmed the decision.

Dr. MacKay's controlled substances registration revocation wasn't his only setback last week: U.S. District Judge Dee Benson reluctantly sentenced Dr. MacKay to 20 years in prison for 37 counts of illegally dispensing painkillers and 3 counts of using a communication device in a drug trafficking offense.

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