83 FR 30974 - Ljudmil Kljusev, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 127 (July 2, 2018)

[Federal Register Volume 83, Number 127 (Monday, July 2, 2018)]
[Notices]
[Pages 30974-30976]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-14161]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Ljudmil Kljusev, M.D.; Decision and Order

    On September 15, 2017, the Acting Assistant Administrator, 
Diversion Control Division, Drug Enforcement Administration 
(hereinafter, DEA or Government), issued an Order to Show Cause to 
Ljudmil Kljusev, M.D. (hereinafter, Respondent), of Milford, 
Connecticut. Order to Show Cause (hereinafter, OSC), at 1. The Show 
Cause Order proposed the revocation of Respondent's Certificate of 
Registration on the ground that he does ``not have authority to handle 
controlled substances in the State of Connecticut, the [S]tate in which 
. . . [he is] registered with the DEA.'' Id. at 1 (citing 21 U.S.C. 
823(f) and 824(a)(3)).
    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Respondent holds DEA Certificate of Registration No. BK7295834, which 
authorizes him to dispense controlled substances in schedules II 
through V as a practitioner, at the registered address of 227 Naugatuck 
Avenue, Milford, Connecticut 06460. OSC, at 1. The Show Cause Order 
alleged that this registration expires on December 31, 2018. Id.
    As the substantive ground for the proceeding, the Show Cause Order 
alleged that Respondent is ``currently without authority to practice 
medicine or handle controlled substances in the State of Connecticut, 
the [S]tate in which . . . [he is] registered with the DEA.'' Id. at 2. 
More specifically, it alleged that, on November 30, 2016, Respondent's 
``license to practice medicine in the State of Connecticut (No. 039302) 
lapsed; on February 28, 2015 and December 6, 2016, respectively, 
Respondent's Connecticut Controlled Substances Registrations, Nos. 
CSP.0030952 and CSP.0059205, expired; and on February 21, 2017, 
Respondent ``entered into an agreement with the Connecticut Department 
of Health in which . . . [he] agreed not to renew or reinstate . . . 
[his] license to practice medicine in Connecticut.'' Id. at 1.
    The Show Cause Order notified Respondent of his right to request a 
hearing on the allegations or to submit a written statement while 
waiving his right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. Id. at 
2 (citing 21 CFR 1301.43). The Show Cause Order also notified 
Respondent of the opportunity to submit a Corrective Action Plan. OSC, 
at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
    By letter dated October 2, 2017, Respondent requested ``a hearing 
in the matter of Order to . . . [Show] Cause in timely manner, for why 
my DEA license should not be revoked or surrendered.'' Hearing Request, 
at 1. According to the Hearing Request, Respondent ``did not commit the 
alleged crimes of distribution of narcotics and money laundering,'' 
although he admitted that, ``[he pled] guilty and served 26 months in 
federal prison.'' Id. at 2. In the Hearing Request, Respondent admitted 
that he ``voluntarily surrendered . . . [his] medical license'' and 
also stated that he did not surrender his DEA license because his 
research ``found that [it] is almost impossible to get it back'' and 
because he ``must say that . . . [he is] disheartened to surrender what 
has been . . . [his] livelihood.'' Id. at 6.\1\
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    \1\ By letter dated October 6, 2017, Respondent submitted a 
``Correction [sic] Action Plan'' stating that, ``Now that I 
understand the law of proceedings, if I had a chance to continue to 
practice I will secure the prescriptions and never issue any refill 
without personally having seen those patients and will be having a 
licensed medical practitioner on site.'' Corrective Action Plan, at 
3. Respondent' s Corrective Action Plan also stated that, ``[S]hould 
I continue to be able to prescribe, I will assure that I implement 
all the safe modes of practices, bill only for the visits that I 
conduct face to face, not over the Skype and will never prescribe 
controlled substances again if necessary.'' Id.
    By letter dated December 5, 2017, the Acting Assistance 
Administrator, Diversion Control Division, responded to Respondent's 
Corrective Action Plan. ``After careful review,'' she stated, ``I 
deny the request to discontinue or defer administrative 
proceedings.'' Corrective Action Pan Denial, at 1. She added that, 
``I have determined there is no potential modification of your 
[Proposed Corrective Action Plan] that could or would alter my 
decision in this regard.'' Id.
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    The Office of Administrative Law Judges put the matter on the 
docket and assigned it to Administrative Law Judge Mark M. Dowd 
(hereinafter, ALJ). I adopt the following statement of procedural 
history from the ALJ's Order Granting the Government's Motion for 
Summary Disposition and Recommended Rulings, Findings of Fact, 
Conclusions of Law, and Decision of the Administrative Law Judge dated 
November 15, 2017 (hereinafter, R.D.).

    Th[e ALJ], on October 11, 2017, ordered the Government to file 
evidence to support the allegations that the Respondent lacked state 
authority to handle controlled substances by October 23, 2017.\2\ 
Moreover, the Respondent was given until November 9, 2017, to file a 
response to any allegations made by the Government.\3\
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    \2\ The October 11, 2017 document that the R.D. references is 
the ALJ's Order Directing the Filing of Government Evidence of Lack 
of State Authority Allegation and Briefing Schedule, at 1.
    \3\ The document the R.D. references is the document described 
in footnote 2, at 2.
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    On October 19, 2017, the Government filed a Motion for Summary 
Disposition (Government's Motion), seeking a recommended decision 
granting the Government's Motion and recommending revocation. Gov't 
Mot. at 5. The Government provided evidence that the Respondent 
voluntarily surrendered his license to practice as a physician and 
surgeon through the Declaration of . . . [a DEA Diversion Group 
Supervisor], the Respondent's ``Voluntary Agreement Not To Renew Or 
Reinstate License,'' a notarized letter from the Practitioner 
License and Investigations Section of the Connecticut Department of 
Public Health, and the State of Connecticut License Lookup website 
report. Gov't Mot. at Attch. 1; Gov't Mot. at Ex. 1; Gov't Mot. at 
Ex. 2; Gov't Mot. at Ex. 3. As to the Respondent's State of 
Connecticut Controlled Substance Registrations, the Government . . . 
searched the State of Connecticut License Lookup website, where the 
Government produced evidence that the Respondent's Controlled 
Substances Registrations no. CSP.0030952 and CSP.0059205 remain 
`inactive' and expired on February 28, 2015, and December 6, 2016, 
respectively, Gov't Mot. at Ex. 4, 5.
    To date, the Respondent failed to file any response to the 
Government's Motion or evidence produced.

R.D., at 2-3.
    In his R.D., the ALJ granted the Government's Motion for Summary 
Disposition, and recommended that Respondent's registration be revoked 
and that any pending applications for its renewal be denied.

    At this juncture, no dispute exists over the fact that the 
Respondent currently lacks state authority to handle controlled 
substances in Connecticut due to his voluntary surrender of his 
license to practice as a physician and surgeon on February 21, 2017 
. . . . Because the Respondent lacks state authority at the present 
time, Agency precedent dictates that he is not entitled to maintain 
his DEA registration. Simply put, there is no contested factual 
matter that could be introduced at a hearing that would, in the 
Agency's view, provide authority to allow the Respondent to continue 
to hold his . . . [DEA registration].

Id. at 5. By letter dated December 15, 2017, the ALJ certified and 
transmitted the record to me for final agency action. In that letter, 
the ALJ stated that neither party filed exceptions and that the time 
period to do so had expired.
    I issue this Decision and Order based on the entire record before 
me. 21 CFR 1301.43(e). I make the following findings of fact.

[[Page 30975]]

Findings of Fact

Respondent's DEA Registration

    Respondent is the holder of DEA Certificate of Registration No. 
BK7295834, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner, at the 
registered address of 227 Naugatuck Avenue, Milford, Connecticut 06460. 
Declaration of DEA Diversion Group Supervisor dated October 18, 2017 
(hereinafter, GS Declaration), at 1. Respondent's registration expires 
on December 31, 2018. Id.

The Status of Respondent's State License

    On February 21, 2017, Respondent signed a ``Voluntary Agreement Not 
to Renew or Reinstate License'' (hereinafter, Voluntary Agreement) 
prepared by the Connecticut Department of Public Health. Id. On 
February 28, 2017, a Public Health Services Manager of the Practitioner 
Licensing and Investigations Section, Healthcare Quality & Safety 
Branch of the Connecticut Department of Public Health, accepted 
Respondent's Voluntary Agreement. In the Voluntary Agreement, 
Respondent stated that his license to practice as a physician and 
surgeon, license number 039302, lapsed on November 30, 2016. Voluntary 
Agreement, at 1. He ``voluntarily'' agreed ``not to renew or 
reinstate'' that license. Id.
    By notarized letter dated October 16, 2017 (hereinafter, 
Certification of Lack of State Authority), a License and Applications 
Specialist of the Practitioner Licensing and Investigations Section 
certified that Respondent ``voluntarily agreed not to renew or 
reinstate his Connecticut license,'' and that Respondent ``is not 
authorized to practice medicine in the [S]tate of Connecticut.'' 
Certification of Lack of State Authority, at 1. Further, according to 
the online records of the State of Connecticut, of which I take 
official notice, I find that Respondent is still not authorized to 
practice medicine in Connecticut.\4\
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    \4\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Respondent may dispute my finding by filing 
a properly supported motion for reconsideration within 20 calendar 
days of the date of this Order. Any such motion shall be filed with 
the Office of the Administrator and a copy shall be served on the 
Government. In the event Respondent files a motion, the Government 
shall have 20 calendar days to file a response.
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    According to Connecticut's online records, of which I also take 
official notice, Respondent no longer has authority to handle 
controlled substances in Connecticut.\5\ Connecticut Controlled 
Substance Registration No. CSP.0030952, issued to Respondent on March 
7, 2013, expired on February 28, 2015, and Connecticut Controlled 
Substance Registration No. CSP.0059205, issued to Respondent on January 
9, 2015, expired on December 6, 2016. State of Connecticut's eLicense 
website, https://www.elicense.ct.gov (last visited June 20, 2018). 
Connecticut's online records show no active Connecticut Controlled 
Substance Registration issued to Respondent. Id.
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    \5\ See footnote 1. If Respondent disputes this finding, he may 
do so according to the terms stated in footnote 1.
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    Accordingly, I find that Respondent currently is without authority 
to engage in the practice of medicine or to handle controlled 
substances in Connecticut, the State in which he is registered.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his State license or registration suspended . 
. . [or] revoked . . . by competent State authority and is no longer 
authorized by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, the DEA has also long 
held that the possession of authority to dispense controlled substances 
under the laws of the State in which a practitioner engages in 
professional practice is a fundamental condition for obtaining and 
maintaining a practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 
(4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 
(1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner'' to mean ``a physician 
. . . or other person licensed, registered, or otherwise permitted, by 
. . . the jurisdiction in which he practices . . ., to distribute, 
dispense, . . . [or] administer . . . a controlled substance in the 
course of professional practice.'' 21 U.S.C. 802(21). Second, in 
setting the requirements for obtaining a practitioner's registration, 
Congress directed that ``[t]he Attorney General shall register 
practitioners . . . if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess State authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices. See, e.g., Hooper, supra, 76 
FR at 71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 
(2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby 
Watts, M.D., 53 FR 11,919, 11,920 (1988), Blanton, supra, 43 FR at 
27,617.
    According to the Connecticut statute concerning Controlled 
Substance Registration, ``[e]very practitioner who distributes, 
administers or dispenses any controlled substance or who proposes to 
engage in distributing, prescribing, administering or dispensing any 
controlled substance within this [S]tate shall . . . obtain a 
certificate of registration issued by the Commissioner of Consumer 
Protection in accordance with the provisions of this chapter.'' Conn. 
Gen. Stat. Ann. Sec.  21a-317 (West, Westlaw through enactments of 
Public Acts enrolled and approved by the Governor on or before April 
27, 2018 and effective on or before April 27, 2018). See also Conn. 
Gen. Stat. Ann. Sec.  21a-316 (West, Westlaw through enactments of 
Public Acts enrolled and approved by the Governor on or before April 
27, 2018 and effective on or before April 27, 2018) (``Practitioner,'' 
for purposes of Controlled Substance Registration, ``means . . . [a] 
physician . . . or other person licensed, registered or otherwise 
permitted to . . . dispense . . . [or] administer a controlled 
substance in the course of professional practice'' in Connecticut) and 
Conn. Agencies Regs. Sec.  21a-326-2(e) (1984) (``Practitioner'' is a 
registration classification and includes ``M.D.'').
    Here, there is no dispute about the material fact that ``Respondent 
currently lacks [S]tate authority to handle controlled substances in 
Connecticut due to his voluntary surrender of his license to practice 
as a physician and surgeon on February 21, 2017'' and the expiration of 
his Connecticut Controlled Substance registrations. R.D., at 5. I will 
therefore order that Respondent's DEA registration be revoked.
    Given my findings that Respondent lacks authority in Connecticut to 
dispense controlled substances, I agree

[[Page 30976]]

with the former Acting Assistant Administrator of the Diversion Control 
Division, and I find that Respondent's Corrective Action Plan provides 
no basis for me to discontinue or defer this proceeding. 21 U.S.C. 
824(c)(3).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
BK7295834 issued to Ljudmil Kljusev, M.D., be, and it hereby is, 
revoked. This Order is effective August 1, 2018.

    Dated: June 20, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-14161 Filed 6-29-18; 8:45 am]
 BILLING CODE 4410-09-P