[Federal Register: December 2, 2003 (Volume 68, Number 231)]
[Notices]
[Page 67476-67477]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02de03-100]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 03-2]
Jules M. Lusman, M.D., Revocation of Registration
On September 6, 2002, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Jules Lusman, M.D. (Respondent) notifying him of
an opportunity to show cause as to why DEA should not revoke his DEA
Certificate of Registration, BL2210300 under 21 U.S.C. 824(a)(3) and
(a)(4). The Order to Show Cause alleged that the Respondent's DEA
Certificate of Registration should be revoked because the Respondent
was without authorization to handle controlled substances. The Order to
Show Cause further sought denial of any pending applications for
registration based on allegations that the Respondent's continued
registration would be inconsistent with the public interest.
Specifically, the Order to Show alleged that effective March 15, 2002,
the California Medical Board (Medical Board) ordered that Respondent be
prohibited from handling controlled substances based upon acts of
negligence in both his care of patients and billing practices. The
Order to Show Cause further alleged that a DEA investigation revealed
the Respondent's failure to adhere to various DEA-recordkeeping
requirements.
By letter dated September 30, 2002, the Respondent, acting pro se,
timely requested a hearing in this matter. On October 15, 2002, the
presiding Administrative Law Judge Mary Ellen Bittner (Judge Bittner)
issued to the Government as well as the Respondent an Order for
Prehearing Statements.
In lieu of filing a prehearing statement, the Government filed
Government's Request for Stay of Proceedings and Motion for Summary
Judgment. The Government argued that the Respondent is without
authorization to handle controlled substances in the State of
California, and as a result, further proceedings in the matter were not
required. Attached to the Government's motion was a copy of a
declaration from the Medical Board's Chief of Enforcement who averred
among other things, that on March 15, 2002, the Medical Board issued an
Interim Order of Suspension summarily suspending the Respondent's
medical license. The Medical Board representative further stated that
as of October 25, 2002, the Medical Board's Interim Order of Suspension
remained in effect. On November 7, 2002, Judge Bittner issued a
Memorandum to Counsel staying the filing or prehearing statements and
afforded the Respondent until November 26, 2002, to respond to the
Government's Motion.
On or around October 30, 2002, the Respondent filed a prehearing
statement where he disputed allegations that he maintained inadequate
records of his handling of controlled substances. The Respondent
maintained that his procedures for handling controlled substances were
proper, and that prosecution witnesses offered biased testimony in the
previous Board proceeding involving the Respondent's
[[Page 67477]]
medical license. However, the Respondent did not refute the allegation
that he is presently without authorization to handle controlled
substances in California.
On December 10, 2002, the Respondent filed a copy of a document
entitled Petition for Peremptory Writ of Mandate C.C.P. Section 1094.5.
The writ apparently relates to a proceeding in the Superior Court for
the County of Los Angeles, where the Respondent asserted that in or
around November 2002, the Medical Board revoked his medical license
effective December 6, 2002, that the Medical Board's actions were not
supported by evidence, and that the Medical Board's revocation action
was an abuse of its discretion. However, the Respondent again did not
deny that he is without authorization to handle controlled substances.
On January 13, 2003, Judge Bittner issued her Opinion and
Recommended Decision of the Administrative Law Judge (Opinion and
Recommended Decision). As part of her recommended ruling, Judge Bittner
granted the Government's Motion for Summary Disposition and found that
the Respondent lacked authorization to handle controlled substances in
California, the jurisdiction in which he is registered with DEA. In
granting the Government's motion, Judge Bittner also recommended that
the Respondent's DEA registration be revoked and any pending
applications for modification or renewal be denied. No exceptions were
filed by either party to Judge Bittner's Opinion and Recommended
Decision, and on February 20, 2003, the record of these proceedings was
transmitted to the Office of the DEA Deputy Administrator.
The Acting Deputy Administrator has considered the record in its
entirety and pursuant to 21 CFR 1316.67, hereby issues her final order
based upon findings of fact and conclusions of law as hereinafter set
forth. The Acting Deputy Administrator adopts, in full, the Opinion and
Recommended Decision of the Administrative Law Judge.
The Acting Deputy Administrator finds that the Respondent currently
possesses DEA Certificate of Registration BL2210300, and is registered
to handle controlled substances in the State of California. The Acting
Deputy Administrator further finds that on March 15, 2002, the Medical
Board issued an Interim Order of Suspension summarily suspending the
Respondent's medical license and prohibiting him from prescribing,
furnishing, dispensing, or distributing any and all controlled
substances. There is no evidence before the Acting Deputy Administrator
that the Interim Order of Suspension has been lifted or modified.
Therefore, the Acting Deputy Administrator finds that the Respondent is
currently not licensed to practice medicine in California and as a
result, it is reasonable to infer that he is also without authorization
to handle controlled substances in that state.
DEA does not have statutory authority under the Controlled
Substances Act to issue or maintain a registration if the applicant or
registrant is without state authority to handle controlled substances
in the state in which he conducts business. See 21 U.S.C. 802(21),
823(f) and 824(a)(3). This prerequisite has been consistently upheld.
See Karen Joe Smiley, M.D., 68 FR 48944 (2003); Dominick A. Ricci,
M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).
Here, it is clear that the Respondent is not currently licensed to
handle controlled substances in California, where he is registered with
DEA. Therefore, he is not entitled to maintain that registration.
Because the Respondent is not entitled to a DEA registration in
California due to his lack of state authorization to handle controlled
substances, the Acting Deputy Administrator concludes that it is
unnecessary to address whether the Respondent's registration should be
revoked based upon the other grounds asserted in the Order to Show
Cause. See Fereida Walker-Graham, M.D., 68 FR 24761 (2003); Nathaniel-
Aikens-Afful, M.D., 62 FR 16871 (1997); Sam F. Moore, D.V.M., 58 FR
14428 (1993).
Accordingly, the Acting Deputy Administrator of the Drug
Enforcement Administration, pursuant to the authority vested in her by
21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that
DEA Certificate of Registration, BL2210300, issued to Jules M. Lusman,
M.D., be, and it hereby is, revoked. The Acting Deputy Administrator
further orders that any pending applications for renewal of such
registration be, and they hereby are, denied. This order is effective
January 2, 2004.
Dated: November 13, 2003.
Michele M. Leonhart,
Acting Deputy Administrator.
[FR Doc. 03-29967 Filed 12-01-03; 8:45 am]
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