[Federal Register: June 16, 2004 (Volume 69, Number 115)]
[Notices]
[Page 33664-33665]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jn04-79]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 03-22]
Lewis B. Boone, M.D., Revocation of Registration, Denial of
Request for Change of Registered Location
On March 23, 2003, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Lewis B. Boone, M.D. (Respondent) of Russell,
Kentucky, notifying him of an opportunity to show cause as to why DEA
should not revoke his DEA Certificate of Registration, BB7108550, as a
practitioner pursuant to 21 U.S.C. 824(a)(3) and deny, pursuant to 21
U.S.C. 823(f), any pending applications or requests, including but not
limited to, Respondent's request for a modification of his registration
to reflect a move to an Ohio location. As a basis for revocation, the
Order to Show Cause alleged that Respondent's license to practice
medicine in Kentucky had been indefinitely restricted and that his
medical license in Ohio had been permanently revoked. As a result, the
Order alleged he was not authorized to handle controlled substances in
either his current or proposed States of registration.
On April 28, 2003, Respondent, acting pro se, timely requested a
hearing in this matter. On May 1, 2003, the presiding Administrative
Law Judge Mary Ellen Bittner (Judge Bittner) issued the Government, as
well as Respondent, an Order for Prehearing Statements.
On May 7, 2003, in lieu of filing a prehearing statement, the
Government filed Government's Request for Stay of Proceedings and
Motion for Summary Disposition. The Government argued Respondent was
without authorization to handle controlled substances in the States of
Kentucky and Ohio and, as a result, further proceedings in the matter
were not required. Counsel for the Government subsequently filed a copy
of the January 18, 2002, Commonwealth of Kentucky, State Board of
Medical Licensure's Agreed Order of Indefinite Restriction, specifying
Respondent ``shall not prescribe, dispense or otherwise professionally
utilize controlled substances within the Commonwealth of Kentucky.''
The Government also filed copies of the State Medical Board of Ohio's
August 14, 2002, Entry of Order permanently revoking Respondent's
license to practice medicine in Ohio.
On June 11, 2003, Judge Bittner issued a memorandum to the parties
seeking clarification of what was encompassed by the term ``controlled
substances'' as used in the Kentucky Agreed Order. Judge Bittner
presumed that phrase referred to substances that were controlled
pursuant to Kentucky's statutory and regulatory provisions, not the
Federal Controlled Substances Act. Judge Bittner invited the parties to
file statements (with supporting documents) as to whether there were
any substances controlled pursuant to the Federal Controlled Substances
Act, but not under Kentucky law. The memorandum reflected a concern
that the Agreed Order's use of the State definition of ``controlled
substances'' might not
[[Page 33665]]
include every substance defined as such under Federal law and thus, may
not have restricted Respondent's ability to prescribe each and every
substance controlled under the Federal scheme. The Government filed a
response asserting such a comparison was unnecessary.
On August 29, 2003, Judge Bittner issued her Opinion and
Recommended Decision of the Administrative Law Judge (Opinion and
Recommended Decision). As part of the recommended ruling, Judge Bittner
granted the Government's Motion for Summary Disposition, in part,
finding Respondent was not licensed to practice medicine in Ohio, the
jurisdiction where he sought to be registered and further finding, to
the extent that substances scheduled under the Federal Controlled
Substances Act are controlled under Kentucky State law, that he lacked
authorization to handle controlled substances in Kentucky. Judge
Bittner recommended, to that extent, that Respondent's DEA Certificate
of Registration be revoked. She also recommended denial of Respondent's
application to modify his DEA registration to reflect an Ohio address.
On September 9, 2003, along with a motion asking Judge Bittner to
reconsider her Opinion and Recommended Decision, the Government filed
newly obtained documentation showing Respondent's Kentucky medical
license had recently been suspended. On September 24, 2003, Judge
Bittner issued a Memorandum to the Parties, granting the Government's
Motion for Reconsideration and rescinding the Opinion and Recommended
Decision, insofar as it applied to the Kentucky registration. While
reaffirming her findings and recommendations with regard to Ohio, she
advised both parties that, with respect to Kentucky, she was
considering the Government's motion as an amended motion for summary
disposition, based on the ground that Respondent was not currently
authorized to practice medicine in that State. Respondent did not avail
himself of the opportunity afforded him to respond to the motion.
On October 22, 2003, Judge Bittner issued a Supplemental Opinion
and Recommended Decision of the Administrative Law Judge (Supplemental
Opinion and Recommended Decision). In it, Judge Bittner found
Respondent's Kentucky medical license had been suspended by that
State's June 20, 2003, Emergency Order of Suspension. Further, she
concluded that because he is not currently licensed to practice
medicine in Kentucky, he is not eligible to hold a DEA registration in
that State. Accordingly, Judge Bittner granted the Government's Motion
for Summary Disposition, recommending that Respondent's DEA
registration be revoked.
No exceptions were filed by either party to the Supplemental
Opinion and Recommended Decision or to those sections of Judge
Bittner's initial Opinion and Recommended Decision which had not been
rescinded. On November 24, 2003, the record of these proceedings was
transmitted to the Office of the DEA Deputy Administrator.
The 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.
As to the Kentucky registration, the Deputy Administrator adopts in
full the Supplemental Opinion and Recommended Decision. Regarding
Respondent's application for a change of registered location to Ohio,
the Deputy Administrator adopts only those findings of fact and
conclusions of law and recommendations in the Opinion and Recommended
Decision which are relevant to that issue. The remaining findings of
fact, conclusions of law and recommendations in the Opinion and
Recommended Decision, pertaining to Respondent's Kentucky registration,
were rescinded and the Deputy Administrator takes no action with regard
to those findings, conclusions or recommendations.
The Deputy Administrator finds Respondent holds DEA Certificate of
Registration, BB7108550, as a practitioner on the Commonwealth of
Kentucky. The Deputy Administrator further finds that on June 20, 2003,
the Commonwealth of Kentucky, Board of Medical Licensure, issued an
Emergency Order of Suspension, indefinitely suspending Respondent's
authority to practice as a physician in the Commonwealth of Kentucky.
The Deputy Administrator further finds that on August 14, 2002, the
Ohio Medical Board permanently revoked Respondent's medical license in
that State. There is no evidence in the record indicating that either
the suspension or revocation has been stayed or modified or that
Respondent's license to practice medicine in either jurisdiction has
been reinstated. As a result, he is not authorized to prescribe,
dispense, administer, or otherwise handle controlled substances in
Kentucky, the place of current DEA registration, or in Ohio, the
location of proposed registration.
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).
Revocation is also appropriate when a State license has been suspended,
but with a possibility of future reactivation. See Anne Lazar Thorn,
M.D., 62 FR 12,847 (1997).
Here, it is clear that because Respondent is not currently licensed
to practice medicine in either jurisdiction, he currently lacks
authority to handle controlled substances in Kentucky, the State where
he is registered and in Ohio, the State where he seeks to be
registered. Therefore, DEA does not have authority to maintain
Respondent's DEA Certificate of Registration or grant any pending
applications for renewal or modification of that registration,
including, but not limited to, Respondent's application to change his
registered location to Ohio.
Accordingly, the 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, BB7108550, issued to Lewis B. Boone, M.D.,
be, and it hereby is, revoked. The Deputy Administrator further orders
that his application for modification of such registration be, and they
hereby are, denied. This order is effective July 16, 2004.
Dated: May 17, 2004.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 04-13533 Filed 6-15-04; 8:45 am]
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