Clinic investigation's search warrant

FARGO - A search warrant filed in Cass County District Court sheds light on what investigators were looking for on June 26 when they searched a drawer at the RapidCare clinic in south Fargo.

A RapidCare office manager told investigators she gave a patient a bottle of methadone from a drawer without a prescription. She did so at the instruction of clinic owner Dr. Rodney J. Lee, according to an affidavit supporting the search warrant.

However, both Lee and the manager, Abby Lewis, told The Forum on Tuesday that the patient never received methadone. In fact, they said that's just one of several mistakes in the document that law enforcement used to justify the search.

Federal, state and local law enforcement agencies have been tight-lipped about whether Lee is under criminal investigation since the North Dakota Board of Medical Examiners issued an emergency suspension of his medical license Friday.

But John Fugleberg, a special agent with the North Dakota Bureau of Criminal Investigation, wrote in his affidavit that he is working as a task force officer for the U.S. Drug Enforcement Administration and has been helping the DEA's Diversion group investigate Lee.

Kemo Littlebear, front, of Barnesville, Minn., along with Virginia Ackerman and Chastity Woodbury both of Fargo, all patients of Dr. Lee, show emotion Tuesday at a news conference.

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Lee "is being investigated relative to dispensing controlled substances and whether or not Dr. Lee has violated the law with regards to the delivery of controlled substances," Fugleberg wrote.

Lee operates two RapidCare clinics in Fargo and one each in Grand Forks, Moorhead and Detroit Lakes, Minn.

Fugleberg and a DEA task force officer interviewed Lewis on June 26, just hours before the search warrant was executed at 1:20 p.m.

Among the items seized were two white tubes with miscellaneous pills, two white envelopes with pills and more than 70 bottles, according to the evidence inventory list.

Lewis told investigators that Lee called her that morning and told her to take all of the drugs and medications from "the drawer," bag them and dispose of them in the garbage Dumpster.

In a phone interview Tuesday, Lee said his desk drawer was used to store unused medications returned by patients until they could be thrown away.

He and Lewis both said it was coincidence that Lee ordered the drawer emptied the same day the DEA and licensing board officials arrived. Lewis returned the drugs to the drawer when she learned the officials were coming, Lee said.

How the drugs got into the drawer depends on who's telling the story.

According to the affidavit, Lewis, referred to in the document only as the office manager and not by name, told investigators that Lee took drugs from the clinic's dispensing machine and put them in the drawer.

But Lewis said Tuesday that the drugs in the drawer were those that Lee had originally dispensed to patients and were later returned.

Lee "has never taken anything directly out of there and thrown it in a drawer," Lewis said, adding, "There would be no reason to do that."

The affidavit also states that Lewis told investigators that within the last two months, Lee instructed her to give a patient methadone from the drawer.

"The employee said that there was no prescription written by Dr. Lee," the affidavit states. "The employee said that there was no record of (the patient) receiving the methadone."

According to the affidavit, Lewis said she gave the patient a bottle of methadone and that the patient didn't pay her for it.

But Lewis said Tuesday she gave the patient a sample envelope containing six pills or less, not a bottle. And both she and Lee said the patient was given a Schedule III drug containing hydrocodone, as opposed to methadone, which is a more strictly controlled Schedule II drug.

Lewis said she didn't know which drug was in the envelope until she researched the matter later. She said she also later discovered that the transaction had been properly documented.

Finally, the affidavit states that Lewis told investigators that "the clinic had received more methadone and other drugs than the clinic had records for dispensing."

Lewis said Tuesday that "there's not a huge difference at all" between the inventory and records of the clinic's InstyMeds dispenser.

"We're talking about $5 in an accounting period," she said. "It's not enough to put up a red flag."

Lewis said she gave a deposition to the licensing board on July 14 to clear up her earlier statements.

Agent Scott Whitcomb of DEA Diversion Control in Minneapolis said it's against federal law for a doctor to redistribute drugs returned by patients or to deliver drugs without a prescription, Fugleberg wrote in the affidavit.

Special Agent Joanna Zoltay, a DEA spokeswoman, said Tuesday that the agency "doesn't comment one way or the other on any investigations we do."

Speaking generally, she said diversion investigators work to prevent the illegal sale and distribution of pharmaceutical drugs.

Zoltay said that if a doctor loses his license, the DEA will ask him to surrender his DEA registration number, which allows doctors to prescribe controlled substances. If the doctor refuses, the DEA can go to civil court to show why the registration should be revoked, she said.

Lee said the affidavit contained "some falsities," and he denies ever mishandling the medications.

"The only thing I ever put in that drawer is medicine I instructed people to return to me for eventual destruction," he said.