Ljudmil Kljusev, M.D.; Decision and Order, 30974-30976 [2018-14161]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
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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
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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
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,
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.
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.
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the Respondent was given until November 9,
2017, to file a response to any allegations
made by the Government.3
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.
3 The document the R.D. references is the
document described in footnote 2, at 2.
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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.
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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
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
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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.
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
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.
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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30975
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. § 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.
§ 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. § 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
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Federal Register / Vol. 83, No. 127 / Monday, July 2, 2018 / Notices
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]
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[Federal Register Volume 83, Number 127 (Monday, July 2, 2018)]
[Notices]
[Pages 30974-30976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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.
---------------------------------------------------------------------------
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