August 16, 2004

Sentencing hearing of Dr. Jeri Hassman, M.D. before Judge Bury

The judge began by recounting the considerations for sentencing that he had received. This included a number of letters on behalf of Dr. Hassman from family, friends, and Dr. Hassman. He had reviewed all of them and they are attached. There was one dated March 1st from Michael McNamara. He also considered the pre-sentencing report, the note concerning the CME credit that Dr. Hassman has obtained, the sentencing memorandum from Dr. Butler which consisted of two parts: That concerning the statutory government benefits and that concerning the sentence itself; the government response in opposition to the pre-sentencing report; and corrections to the pre-sentencing report dated August 10th.

He asked Bates Butler, Dr. Hassman=s attorney, whether he had read and considered the pre-sentencing report. Mr. Butler said that he had and that he had no formal revisions. He was asked whether he discussed it with Dr. Hassman and he said that he did. The judge said that there were two memoranda concerning correction to the pre-sentencing report. There were no factual legal objections to applying the guidelines. There were some comments on how to spin the facts. The judge said that he would not order a modification of the report.

The judge stated that Dr. Hassman had signed a plea agreement stipulating to a sentencing range of zero to six months in prison, and that she would be eligible to reapply for her DEA certificate, and that the government would agree to dismiss the superseding indictment, and that she would give up her right to appeal. The judge asked Dr. Hassman whether she understood that if the court sentenced her in accordance with the plea agreement that she waived her right of appeal of the sentence. Dr. Hassman said that, yes, she understood. The judge said that she had pleaded guilty to counts one through four and that the court found her guilty of being an accessory after the fact to the possession of controlled substances by subterfuge, fraud, etc., which is a class E felony.

Mr. Butler said that on August 13th he had filed a report objecting to the pre-sentencing report that had not been referred to by the court. The judge said he did not remember receiving that and could not find it and asked how long it was. Mr. Butler said that it was six pages and provided a copy for the judge to review. The judge spent a few minutes reading the report.

He said that he wanted to instruct Dr. Hassman as there were several things that he was concerned about in passing the sentence. He believes that the purpose of sentencing was rehabilitation, correction, and I think he said punishment. He recognized that Dr. Hassman had experienced substantial grief, loss of patients, and that she had incurred great expense. The issue that had not been addressed, though, was not just the deterrent effect of the sentence on Dr. Hassman, but on other physicians.

Mr. Butler said he wished to address these and also discuss the issues that were brought out by the court and another one that was not mentioned from the pre-sentencing report, the question of when Dr. Hassman had the right to reapply for her DEA certification. The government and the defense had agreed to what initially was intended to allow Dr. Hassman to reapply in one year. This would be one year after surrendering her certificate on January 27, 2004. At the time, they anticipated that sentencing would be within a few months and not in August. He said he has communicated with the government and had agreed that the mutual understanding was that Dr. Hassman should be allowed to reapply one year after January, and not one year after the sentence or probation. The government attorney Mr. Roetzel said he agreed that their intention was that she could reapply for her certificate in one year.

Mr. Butler proceeded to address the deterrent effect upon the medical community. He said that the case has received widespread publicity both in Tucson and nationwide. The judge interposed, AYes, with you urging that she didn=t do it.@ Mr. Butler continued that the deterrent effect upon both Dr. Hassman and physicians locally and nationwide is that they would look at all patients more closely. He said he said he did not want to say with a jaundiced eye. But he had been told by physicians that they are less trustful of their patients and much more careful about obtaining more information from their patients both before given the prescription and afterwards to be sure that the patient was taking the medication and not diverting it. He said that physicians were engaging in more medical procedures to ascertain evidence that the patient was taking medication as directed and not using street drugs. Physicians were insisting the patients routinely undergo such screening. He also knows that physicians are inquiring of the medical board about whether it is required to notify law enforcement if a patient should have a positive urine screen. He has talked both to medical board and to physicians. He also states that many physicians say they will not prescribe controlled substances. The judge remarked on whether he was describing a chilling effect. He said that last week he had read a report in which many physicians specializing in pain control have gotten together with the DEA to produce new guidelines. He said he hoped that Dr. Hassman was familiar with the report.

Dr. Hassman responded that this was an 18-page pamphlet that had just been published and that contained many statements that had been made before as by state medical boards. It speaks about the necessity for pain assessment. Judge Bury stated, AAnd what about not getting patients addicted. But there is also an opportunity to hurt patients if they are not dispensed prudently and professionally. The intention is not to chill prescriptions, but on the other hand, it does not want to get people addicted. There is a danger of trading one problem with another one, that of addiction.@

Dr. Hassman said that she would like to say that the pamphlet gives some answers but there are still gray areas. There is drug dependence and disagreement about what constitutes dependence or addiction. Although the pamphlet does elucidate this to some extent, one cannot say that the problem has been completely solved. It was a noble effort, but it is not realistic to say that doctors now know how to prescribe without problems.

Mr. Butler said the effort was obviously beneficial. One year ago in January he first became aware that the Arizona board had new guidelines. Over the year the medical community had been communicating with the DEA about providing increased education, but he can=t say that you can take the guidelines and say whether or not what the doctor should do in a particular individual case. He hoped that this document would help lead to better practice of medicine. He said that physicians both here and in the United States know about Jeri Hassman. It has caused many physicians to reevaluate their treatment of chronic pain and make sure that the cure does not cause a worse situation. He thinks that the pleading in this case has had a significant deterrent effect on other physicians. If the defendant did not receive probation as recommended, the effect would not be deterrence, but rather chilling. He noticed that the medical board had imposed a two year period of probation on Dr. Hassman since February of 2004. During that period she was to do ten hours of CME, which she has done. She has continued to take CME in pain and addiction and actually was doing so even before the plea. The medical board was reviewing her files to ascertain proper maintenance of records as well as proper patient care. The board will review the charts for two years. Although it does not review every single chart, it does check a proportion of them. The board had also said that if she does receive her DEA license, she will be kept on probation for two years after that time. There are no regulations about when the DEA has to rule on an application. If it takes years to have the application approved, she would still be on two years of probation after that time.

The judge asked Dr. Hassman whether she was under any obligation to any medical association to advise patients of her status about being allowed to prescribe.

Dr. Hassman responded that she always does tell them although there is no formal obligation.

I think it was Mr. Butler who said that no incarceration was necessary, it would only be unnecessary punishment, would not be of any rehabilitative value, or any value in deterring other physicians.

The judge asked to hear from Dr. Hassman who read a statement.

The judge asked her whether she ever treated patients for addiction and Dr. Hassman said she was not certified to do so, that physicians are not trained to do that and may not do it in without a specific certificate. She did refer them to treatment programs.

Mr. Roetzel said that the government requested five years of probation and that that should be necessary to monitor her overall conduct, which perhaps might give some indication of whether or not she was prescribing inappropriately, although that the probation officer did not monitor her medical treatment. He noted that the case was first brought to attention because of concerns by pharmacists related to her prescribing practices. He said the government felt this was necessary for the protection of the public in deterrence of others. He also felt that 500 hours of community service, that is 100 hours per year for each year of probation, was reasonable.

The judge said he did not think that the purpose of criminal sentencing would be served by imprisoning Dr. Hassman. He imposed a two-year term of probation and 100 hours of community service. There will be two years of probation for each count to be served concurrently. He said there would be a $400 mandatory assessment. He felt that her financial situation showed that she was not able to pay a fine and therefore this was waived. The standard conditions of probation would apply and that he would impose additional conditions which include:

1. She would not be a provider for Tricare.

2. She would comply with all of the restrictions and conditions required for the medical associations so that failure to comply with any of them would also be a violation of her probation.

3. She would need to verify compliance with these terms.

He ordered 100 hours of community service which would include 50 hours of service in a substance abuse center, preferably with persons who were addicted to opioids. She could either work as a volunteer or offer healthcare services if this were allowed. The additional 50 hours would be served in her own office caring for needy patients who were uninsured but unable to pay for services. This would be 25 hours every six months.

She would prescribe no controlled substances without obtaining the proper license.

He stated that her conviction not relate to the unlawful distribution of medications and so she would not be denied government benefits or Medicare payment.

He also ordered her to write a letter to the American Journal of Physical and Rehabilitative Medicine, the journal of her specialty, which would be subject to his review. She is to recount what happened in her case without blaming the government or saying that there was an unfair prosecution. The purpose was not to embarrass her further and it could be published anonymously. The purpose was to inform others. She was to tell what she had lost, the financial devastation she had experienced, the loss of much of her practice, and what changes she planned to make. She was to request publication, indeed implore publication, to broadcast the situation to physicians. She is to get across the idea of what can happen if narcotics use gets out of control. The judge felt that this would comply with all the purposes of criminal sentence. She was to tell about her public humiliation and the loss of money. She was to tell about how she has been rehabilitated and has learned her lesson. If they do not publish it, I will have to modify the conditions and you won=t like them. You are write it, not your silver-tongued lawyer Mr. Butler. You had better implore that they publish it.

Mr. Butler asked whether the court would find that she could reapply for her DEA certification. The judge said he was impressed by what the medical association was doing in reviewing her charts and he would allow her to reapply.

Mr. Roetzel moved to dismiss the superseding indictment. This was done and he also moved for adjournment, and this was done.

Present in the courtroom were a number of Dr. Hassman=s patients, her entire staff, Dr. Rene Allen, Dr. Jane Orient, and a reporter for The Arizona Daily Star. Beverly Anderson was not present, although there was one other attorney for the government whose name I did not catch. There were two men dressed in suits inside the railing who were probably federal marshals that could have enforced a judge=s sentence to incarcerate Dr. Hassman, beginning immediately.