83_FR_31101 83 FR 30974 - Ljudmil Kljusev, M.D.; Decision and Order

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)

Page Range30974-30976
FR Document2018-14161

Federal Register, Volume 83 Issue 127 (Monday, 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



                                               30974                           Federal Register / Vol. 83, No. 127 / Monday, July 2, 2018 / Notices

                                               christine.hill@usdoj.gov                                electing each option, and the                            the Respondent was given until November 9,
                                               [FR Doc. 2018–14192 Filed 6–29–18; 8:45 am]             consequences for failing to elect either                 2017, to file a response to any allegations
                                                                                                       option. Id. at 2 (citing 21 CFR 1301.43).                made by the Government.3
                                               BILLING CODE 4410–11–P
                                                                                                       The Show Cause Order also notified                          On October 19, 2017, the Government filed
                                                                                                       Respondent of the opportunity to                         a Motion for Summary Disposition
                                                                                                       submit a Corrective Action Plan. OSC, at                 (Government’s Motion), seeking a
                                               DEPARTMENT OF JUSTICE
                                                                                                       2–3 (citing 21 U.S.C. 824(c)(2)(C)).                     recommended decision granting the
                                               Drug Enforcement Administration                            By letter dated October 2, 2017,                      Government’s Motion and recommending
                                                                                                                                                                revocation. Gov’t Mot. at 5. The Government
                                                                                                       Respondent requested ‘‘a hearing in the
                                               Ljudmil Kljusev, M.D.; Decision and                                                                              provided evidence that the Respondent
                                                                                                       matter of Order to . . . [Show] Cause in
                                               Order                                                                                                            voluntarily surrendered his license to
                                                                                                       timely manner, for why my DEA license                    practice as a physician and surgeon through
                                                  On September 15, 2017, the Acting                    should not be revoked or surrendered.’’                  the Declaration of . . . [a DEA Diversion
                                               Assistant Administrator, Diversion                      Hearing Request, at 1. According to the                  Group Supervisor], the Respondent’s
                                               Control Division, Drug Enforcement                      Hearing Request, Respondent ‘‘did not                    ‘‘Voluntary Agreement Not To Renew Or
                                               Administration (hereinafter, DEA or                     commit the alleged crimes of                             Reinstate License,’’ a notarized letter from
                                               Government), issued an Order to Show                    distribution of narcotics and money                      the Practitioner License and Investigations
                                                                                                       laundering,’’ although he admitted that,                 Section of the Connecticut Department of
                                               Cause to Ljudmil Kljusev, M.D.
                                                                                                       ‘‘[he pled] guilty and served 26 months                  Public Health, and the State of Connecticut
                                               (hereinafter, Respondent), of Milford,
                                                                                                       in federal prison.’’ Id. at 2. In the                    License Lookup website report. Gov’t Mot. at
                                               Connecticut. Order to Show Cause
                                                                                                       Hearing Request, Respondent admitted                     Attch. 1; Gov’t Mot. at Ex. 1; Gov’t Mot. at
                                               (hereinafter, OSC), at 1. The Show                                                                               Ex. 2; Gov’t Mot. at Ex. 3. As to the
                                                                                                       that he ‘‘voluntarily surrendered . . .
                                               Cause Order proposed the revocation of                                                                           Respondent’s State of Connecticut Controlled
                                                                                                       [his] medical license’’ and also stated
                                               Respondent’s Certificate of Registration                                                                         Substance Registrations, the Government
                                                                                                       that he did not surrender his DEA
                                               on the ground that he does ‘‘not have                                                                            . . . searched the State of Connecticut
                                                                                                       license because his research ‘‘found that
                                               authority to handle controlled                                                                                   License Lookup website, where the
                                                                                                       [it] is almost impossible to get it back’’
                                               substances in the State of Connecticut,                                                                          Government produced evidence that the
                                                                                                       and because he ‘‘must say that . . . [he
                                               the [S]tate in which . . . [he is]                      is] disheartened to surrender what has                   Respondent’s Controlled Substances
                                               registered with the DEA.’’ Id. at 1 (citing             been . . . [his] livelihood.’’ Id. at 6.1                Registrations no. CSP.0030952 and
                                               21 U.S.C. 823(f) and 824(a)(3)).                           The Office of Administrative Law                      CSP.0059205 remain ‘inactive’ and expired
                                                  As to the Agency’s jurisdiction, the                                                                          on February 28, 2015, and December 6, 2016,
                                                                                                       Judges put the matter on the docket and                  respectively, Gov’t Mot. at Ex. 4, 5.
                                               Show Cause Order alleged that                           assigned it to Administrative Law Judge
                                               Respondent holds DEA Certificate of                                                                                 To date, the Respondent failed to file any
                                                                                                       Mark M. Dowd (hereinafter, ALJ). I                       response to the Government’s Motion or
                                               Registration No. BK7295834, which                       adopt the following statement of                         evidence produced.
                                               authorizes him to dispense controlled                   procedural history from the ALJ’s Order
                                               substances in schedules II through V as                 Granting the Government’s Motion for                     R.D., at 2–3.
                                               a practitioner, at the registered address               Summary Disposition and
                                               of 227 Naugatuck Avenue, Milford,                                                                                  In his R.D., the ALJ granted the
                                                                                                       Recommended Rulings, Findings of                         Government’s Motion for Summary
                                               Connecticut 06460. OSC, at 1. The Show                  Fact, Conclusions of Law, and Decision
                                               Cause Order alleged that this                                                                                    Disposition, and recommended that
                                                                                                       of the Administrative Law Judge dated                    Respondent’s registration be revoked
                                               registration expires on December 31,                    November 15, 2017 (hereinafter, R.D.).
                                               2018. Id.                                                                                                        and that any pending applications for its
                                                                                                         Th[e ALJ], on October 11, 2017, ordered                renewal be denied.
                                                  As the substantive ground for the                    the Government to file evidence to support
                                               proceeding, the Show Cause Order                        the allegations that the Respondent lacked                 At this juncture, no dispute exists over the
                                               alleged that Respondent is ‘‘currently                  state authority to handle controlled                     fact that the Respondent currently lacks state
                                               without authority to practice medicine                  substances by October 23, 2017.2 Moreover,               authority to handle controlled substances in
                                               or handle controlled substances in the                                                                           Connecticut due to his voluntary surrender of
                                               State of Connecticut, the [S]tate in                       1 By letter dated October 6, 2017, Respondent         his license to practice as a physician and
                                               which . . . [he is] registered with the                 submitted a ‘‘Correction [sic] Action Plan’’ stating     surgeon on February 21, 2017 . . . . Because
                                                                                                       that, ‘‘Now that I understand the law of                 the Respondent lacks state authority at the
                                               DEA.’’ Id. at 2. More specifically, it                  proceedings, if I had a chance to continue to            present time, Agency precedent dictates that
                                               alleged that, on November 30, 2016,                     practice I will secure the prescriptions and never       he is not entitled to maintain his DEA
                                               Respondent’s ‘‘license to practice                      issue any refill without personally having seen
                                                                                                                                                                registration. Simply put, there is no contested
                                                                                                       those patients and will be having a licensed
                                               medicine in the State of Connecticut                    medical practitioner on site.’’ Corrective Action        factual matter that could be introduced at a
                                               (No. 039302) lapsed; on February 28,                    Plan, at 3. Respondent’ s Corrective Action Plan         hearing that would, in the Agency’s view,
                                               2015 and December 6, 2016,                              also stated that, ‘‘[S]hould I continue to be able to    provide authority to allow the Respondent to
                                               respectively, Respondent’s Connecticut                  prescribe, I will assure that I implement all the safe   continue to hold his . . . [DEA registration].
                                                                                                       modes of practices, bill only for the visits that I
                                               Controlled Substances Registrations,                    conduct face to face, not over the Skype and will
                                               Nos. CSP.0030952 and CSP.0059205,                       never prescribe controlled substances again if           Id. at 5. By letter dated December 15,
                                               expired; and on February 21, 2017,                      necessary.’’ Id.                                         2017, the ALJ certified and transmitted
                                               Respondent ‘‘entered into an agreement                     By letter dated December 5, 2017, the Acting          the record to me for final agency action.
                                                                                                       Assistance Administrator, Diversion Control              In that letter, the ALJ stated that neither
                                               with the Connecticut Department of                      Division, responded to Respondent’s Corrective
                                               Health in which . . . [he] agreed not to                Action Plan. ‘‘After careful review,’’ she stated, ‘‘I   party filed exceptions and that the time
                                               renew or reinstate . . . [his] license to               deny the request to discontinue or defer                 period to do so had expired.
daltland on DSKBBV9HB2PROD with NOTICES




                                               practice medicine in Connecticut.’’ Id.                 administrative proceedings.’’ Corrective Action Pan
                                                                                                       Denial, at 1. She added that, ‘‘I have determined           I issue this Decision and Order based
                                               at 1.                                                   there is no potential modification of your [Proposed     on the entire record before me. 21 CFR
                                                  The Show Cause Order notified                        Corrective Action Plan] that could or would alter        1301.43(e). I make the following
                                               Respondent of his right to request a                    my decision in this regard.’’ Id.                        findings of fact.
                                                                                                          2 The October 11, 2017 document that the R.D.
                                               hearing on the allegations or to submit                 references is the ALJ’s Order Directing the Filing of
                                               a written statement while waiving his                   Government Evidence of Lack of State Authority             3 The document the R.D. references is the

                                               right to a hearing, the procedures for                  Allegation and Briefing Schedule, at 1.                  document described in footnote 2, at 2.



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                                                                                 Federal Register / Vol. 83, No. 127 / Monday, July 2, 2018 / Notices                                             30975

                                               Findings of Fact                                             According to Connecticut’s online                  practitioner’s registration, Congress
                                                                                                         records, of which I also take official                directed that ‘‘[t]he Attorney General
                                               Respondent’s DEA Registration
                                                                                                         notice, Respondent no longer has                      shall register practitioners . . . if the
                                                 Respondent is the holder of DEA                         authority to handle controlled                        applicant is authorized to dispense . . .
                                               Certificate of Registration No.                           substances in Connecticut.5 Connecticut               controlled substances under the laws of
                                               BK7295834, pursuant to which he is                        Controlled Substance Registration No.                 the State in which he practices.’’ 21
                                               authorized to dispense controlled                         CSP.0030952, issued to Respondent on                  U.S.C. 823(f). Because Congress has
                                               substances in schedules II through V as                   March 7, 2013, expired on February 28,                clearly mandated that a practitioner
                                               a practitioner, at the registered address                 2015, and Connecticut Controlled                      possess State authority in order to be
                                               of 227 Naugatuck Avenue, Milford,                         Substance Registration No.                            deemed a practitioner under the CSA,
                                               Connecticut 06460. Declaration of DEA                     CSP.0059205, issued to Respondent on                  the DEA has held repeatedly that
                                               Diversion Group Supervisor dated                          January 9, 2015, expired on December 6,               revocation of a practitioner’s registration
                                               October 18, 2017 (hereinafter, GS                         2016. State of Connecticut’s eLicense                 is the appropriate sanction whenever he
                                               Declaration), at 1. Respondent’s                          website, https://www.elicense.ct.gov                  is no longer authorized to dispense
                                               registration expires on December 31,                      (last visited June 20, 2018).                         controlled substances under the laws of
                                               2018. Id.                                                 Connecticut’s online records show no                  the State in which he practices. See,
                                               The Status of Respondent’s State                          active Connecticut Controlled Substance               e.g., Hooper, supra, 76 FR at 71,371–72;
                                               License                                                   Registration issued to Respondent. Id.                Sheran Arden Yeates, M.D., 71 FR
                                                                                                            Accordingly, I find that Respondent                39,130, 39,131 (2006); Dominick A.
                                                  On February 21, 2017, Respondent                       currently is without authority to engage              Ricci, M.D., 58 FR 51,104, 51,105 (1993);
                                               signed a ‘‘Voluntary Agreement Not to                     in the practice of medicine or to handle              Bobby Watts, M.D., 53 FR 11,919, 11,920
                                               Renew or Reinstate License’’                              controlled substances in Connecticut,                 (1988), Blanton, supra, 43 FR at 27,617.
                                               (hereinafter, Voluntary Agreement)                        the State in which he is registered.                     According to the Connecticut statute
                                               prepared by the Connecticut                                                                                     concerning Controlled Substance
                                               Department of Public Health. Id. On                       Discussion
                                                                                                                                                               Registration, ‘‘[e]very practitioner who
                                               February 28, 2017, a Public Health                           Pursuant to 21 U.S.C. 824(a)(3), the               distributes, administers or dispenses
                                               Services Manager of the Practitioner                      Attorney General is authorized to                     any controlled substance or who
                                               Licensing and Investigations Section,                     suspend or revoke a registration issued               proposes to engage in distributing,
                                               Healthcare Quality & Safety Branch of                     under section 823 of the Controlled                   prescribing, administering or dispensing
                                               the Connecticut Department of Public                      Substances Act (hereinafter, CSA),                    any controlled substance within this
                                               Health, accepted Respondent’s                             ‘‘upon a finding that the registrant . . .            [S]tate shall . . . obtain a certificate of
                                               Voluntary Agreement. In the Voluntary                     has had his State license or registration             registration issued by the Commissioner
                                               Agreement, Respondent stated that his                     suspended . . . [or] revoked . . . by                 of Consumer Protection in accordance
                                               license to practice as a physician and                    competent State authority and is no                   with the provisions of this chapter.’’
                                               surgeon, license number 039302, lapsed                    longer authorized by State law to engage              Conn. Gen. Stat. Ann. § 21a–317 (West,
                                               on November 30, 2016. Voluntary                           in the . . . dispensing of controlled                 Westlaw through enactments of Public
                                               Agreement, at 1. He ‘‘voluntarily’’                       substances.’’ With respect to a                       Acts enrolled and approved by the
                                               agreed ‘‘not to renew or reinstate’’ that                 practitioner, the DEA has also long held              Governor on or before April 27, 2018
                                               license. Id.                                              that the possession of authority to                   and effective on or before April 27,
                                                  By notarized letter dated October 16,                  dispense controlled substances under                  2018). See also Conn. Gen. Stat. Ann.
                                               2017 (hereinafter, Certification of Lack                  the laws of the State in which a                      § 21a–316 (West, Westlaw through
                                               of State Authority), a License and                        practitioner engages in professional                  enactments of Public Acts enrolled and
                                               Applications Specialist of the                            practice is a fundamental condition for               approved by the Governor on or before
                                               Practitioner Licensing and                                obtaining and maintaining a                           April 27, 2018 and effective on or before
                                               Investigations Section certified that                     practitioner’s registration. See, e.g.,               April 27, 2018) (‘‘Practitioner,’’ for
                                               Respondent ‘‘voluntarily agreed not to                    James L. Hooper, M.D., 76 FR 71,371                   purposes of Controlled Substance
                                               renew or reinstate his Connecticut                        (2011), pet. for rev. denied, 481 Fed.                Registration, ‘‘means . . . [a] physician
                                               license,’’ and that Respondent ‘‘is not                   Appx. 826 (4th Cir. 2012); Frederick                  . . . or other person licensed, registered
                                               authorized to practice medicine in the                    Marsh Blanton, M.D., 43 FR 27,616,                    or otherwise permitted to . . . dispense
                                               [S]tate of Connecticut.’’ Certification of                27,617 (1978).                                        . . . [or] administer a controlled
                                               Lack of State Authority, at 1. Further,                      This rule derives from the text of two             substance in the course of professional
                                               according to the online records of the                    provisions of the CSA. First, Congress                practice’’ in Connecticut) and Conn.
                                               State of Connecticut, of which I take                     defined the term ‘‘practitioner’’ to mean             Agencies Regs. § 21a–326–2(e) (1984)
                                               official notice, I find that Respondent is                ‘‘a physician . . . or other person                   (‘‘Practitioner’’ is a registration
                                               still not authorized to practice medicine                 licensed, registered, or otherwise                    classification and includes ‘‘M.D.’’).
                                               in Connecticut.4                                          permitted, by . . . the jurisdiction in                  Here, there is no dispute about the
                                                                                                         which he practices . . ., to distribute,              material fact that ‘‘Respondent currently
                                                 4 Under the Administrative Procedure Act, an
                                                                                                         dispense, . . . [or] administer . . . a               lacks [S]tate authority to handle
                                               agency ‘‘may take official notice of facts at any stage
                                               in a proceeding—even in the final decision.’’             controlled substance in the course of                 controlled substances in Connecticut
                                               United States Department of Justice, Attorney             professional practice.’’ 21 U.S.C.                    due to his voluntary surrender of his
                                               General’s Manual on the Administrative Procedure          802(21). Second, in setting the                       license to practice as a physician and
                                               Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint                                                               surgeon on February 21, 2017’’ and the
                                                                                                         requirements for obtaining a
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                                               1979). Pursuant to 5 U.S.C. 556(e), ‘‘[w]hen an
                                               agency decision rests on official notice of a material                                                          expiration of his Connecticut Controlled
                                               fact not appearing in the evidence in the record, a       the Administrator and a copy shall be served on the   Substance registrations. R.D., at 5. I will
                                               party is entitled, on timely request, to an               Government. In the event Respondent files a           therefore order that Respondent’s DEA
                                               opportunity to show the contrary.’’ Accordingly,          motion, the Government shall have 20 calendar
                                                                                                         days to file a response.
                                                                                                                                                               registration be revoked.
                                               Respondent may dispute my finding by filing a
                                               properly supported motion for reconsideration                5 See footnote 1. If Respondent disputes this         Given my findings that Respondent
                                               within 20 calendar days of the date of this Order.        finding, he may do so according to the terms stated   lacks authority in Connecticut to
                                               Any such motion shall be filed with the Office of         in footnote 1.                                        dispense controlled substances, I agree


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                                               30976                           Federal Register / Vol. 83, No. 127 / Monday, July 2, 2018 / Notices

                                               with the former Acting Assistant                        this notice. Comments may be                           FOR FURTHER INFORMATION CONTACT:       If
                                               Administrator of the Diversion Control                  submitted either by email or by mail:                  you have additional comments,
                                               Division, and I find that Respondent’s                                                                         particularly with respect to the
                                               Corrective Action Plan provides no                      To sub-                                                estimated public burden or associated
                                               basis for me to discontinue or defer this               mit com-    Send them to:                              response time, have suggestions, need a
                                                                                                       ments:
                                               proceeding. 21 U.S.C. 824(c)(3).                                                                               copy of the proposed information
                                               Order                                                   By          pubcomment-ees.enrd@usdoj.gov.             collection instrument with instructions,
                                                                                                         email.                                               or desire any other additional
                                                  Pursuant to the authority vested in me               By mail     Assistant Attorney General, U.S.           information, please contact Nicole
                                               by 21 U.S.C. 824(a), as well as 28 CFR                                DOJ—ENRD, P.O. Box 7611,                 Timmons either by mail at CG–3, 10th
                                               0.100(b), I order that DEA Certificate of                             Washington, D.C. 20044–7611.             Floor, Washington, DC 20530–0001, by
                                               Registration No. BK7295834 issued to                                                                           email at Nicole.Timmons@usdoj.gov, or
                                               Ljudmil Kljusev, M.D., be, and it hereby                  During the public comment period,                    by telephone at 202–236–2646. Written
                                               is, revoked. This Order is effective                    the consent decree may be examined                     comments and/or suggestions can also
                                               August 1, 2018.                                         and downloaded at this Justice                         be directed to the Office of Management
                                                 Dated: June 20, 2018.                                 Department website: https://                           and Budget, Office of Information and
                                               Robert W. Patterson,                                    www.justice.gov/enrd/consent-decrees.                  Regulatory Affairs, Attention:
                                               Acting Administrator.                                   We will provide a paper copy of the                    Department of Justice Desk Officer,
                                                                                                       consent decree upon written request                    Washington, DC 20503 or sent to OIRA_
                                               [FR Doc. 2018–14161 Filed 6–29–18; 8:45 am]
                                                                                                       and payment of reproduction costs.                     submissions@omb.eop.gov.
                                               BILLING CODE 4410–09–P
                                                                                                       Please mail your request and payment                   SUPPLEMENTARY INFORMATION: Written
                                                                                                       to: Consent Decree Library, U.S. DOJ—                  comments and suggestions from the
                                               DEPARTMENT OF JUSTICE                                   ENRD, P.O. Box 7611, Washington, DC                    public and affected agencies concerning
                                                                                                       20044–7611,                                            the proposed collection of information
                                               Notice of Lodging of Proposed                             Please enclose a check or money order                are encouraged. Your comments should
                                               Consent Decree Under the                                for $58.75 (25 cents per page                          address one or more of the following
                                               Comprehensive Environmental                             reproduction cost) payable to the United               four points:
                                               Response, Compensation, and Liability                   States Treasury. For a paper copy
                                                                                                       without the exhibits and signature                     —Evaluate whether the proposed
                                               Act                                                                                                              collection of information is necessary
                                                                                                       pages, the cost is $16.
                                                  On June 22, 2018, the Department of                                                                           for the proper performance of the
                                               Justice lodged a proposed consent                       Henry S. Friedman,                                       functions of the agency, including
                                               decree with the United States District                  Assistant Section Chief, Environmental                   whether the information will have
                                               Court for the Middle District of North                  Enforcement Section, Environment and                     practical utility;
                                               Carolina in the lawsuit entitled United                 Natural Resources Division.                            —Evaluate the accuracy of the agency’s
                                               States v. North Carolina Department of                  [FR Doc. 2018–14086 Filed 6–29–18; 8:45 am]              estimate of the burden of the
                                               Transportation, Civil Action No. 1:18–                  BILLING CODE 4410–15–P                                   proposed collection of information,
                                               cv–00541.                                                                                                        including the validity of the
                                                  The United States, on behalf of the                                                                           methodology and assumptions used;
                                               U.S. Environmental Protection Agency                    DEPARTMENT OF JUSTICE                                  —Evaluate whether and if so how the
                                               (EPA), filed this lawsuit under the                                                                              quality, utility, and clarity of the
                                               Comprehensive Environmental                             U.S. Marshals Service                                    information to be collected can be
                                               Response, Compensation, and Liability                   [OMB Number 1105—NEW]                                    enhanced; and
                                               Act (CERCLA). The complaint seeks                                                                              —Minimize the burden of the collection
                                               performance of response action for                      Agency Information Collection                            of information on those who are to
                                               Operable Unit 1 of the Aberdeen                         Activities; Proposed eCollection                         respond, including through the use of
                                               Contaminated Groundwater Superfund                      eComments Requested; Proposed                            appropriate automated, electronic,
                                               Site (‘‘Site’’), in Moore County, North                 Collection; Comments Requested:                          mechanical, or other technological
                                               Carolina. The contaminated area                         Form USM–164, Applicant Reference                        collection techniques or other forms
                                               associated with Town of Aberdeen                        Check Questionnaire                                      of information technology, e.g.,
                                               supply wells #5 and #9 is known as                                                                               permitting electronic submission of
                                               ‘‘Operable Unit 1,’’ one of two operable                AGENCY:  U.S. Marshals Service,                          responses.
                                               units at the Site.                                      Department of Justice.
                                                  The proposed consent decree would                    ACTION: 30-Day notice.                                 Overview of This Information
                                               resolve the claim alleged in the                                                                               Collection
                                               complaint. It requires defendant NCDOT                  SUMMARY:   The Department of Justice                     (1) Type of Information Collection:
                                               to implement the remedy selected by                     (DOJ), U.S. Marshals Service (USMS),                   New collection.
                                               EPA for Operable Unit 1.                                will submit the following information                    (2) The Title of the Form/Collection:
                                                  The publication of this notice opens                 collection request to the Office of                    Form USM–164, Applicant Reference
                                               a period for public comment on the                      Management and Budget (OMB) for                        Check Questionnaire.
                                               consent decree. Comments should be                      review and approval in accordance with                   (3) The agency form number, if any,
                                               addressed to the Assistant Attorney                     the Paperwork Reduction Act of 1995.                   and the applicable component of the
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                                               General, Environment and Natural                        The proposed information collection                    Department sponsoring the collection:
                                               Resources Division, and should refer to                 was previously published in the Federal                  Form number: USM–164.
                                               United States v. North Carolina                         Register on June 5, 2017, allowing for a                 Component: U.S. Marshals Service,
                                               Department of Transportation, D.J. Ref.                 60-day comment period.                                 U.S. Department of Justice.
                                               No. 90–11–3–1058/2. All comments                        DATES: Comments are encouraged and                       (4) Affected public who will be asked
                                               must be submitted no later than thirty                  will be accepted for an additional 30                  or required to respond, as well as a brief
                                               (30) days after the publication date of                 days until August 1, 2018.                             abstract:


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Document Created: 2018-06-30 00:17:44
Document Modified: 2018-06-30 00:17:44
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation83 FR 30974 

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