[Federal Register Volume 68, Number 231 (Tuesday, December 2, 2003)]
[Notices]
[Pages 67476-67477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29967]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 03-2]


Jules M. Lusman, M.D., Revocation of Registration

    On September 6, 2002, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Jules Lusman, M.D. (Respondent) notifying him of 
an opportunity to show cause as to why DEA should not revoke his DEA 
Certificate of Registration, BL2210300 under 21 U.S.C. 824(a)(3) and 
(a)(4). The Order to Show Cause alleged that the Respondent's DEA 
Certificate of Registration should be revoked because the Respondent 
was without authorization to handle controlled substances. The Order to 
Show Cause further sought denial of any pending applications for 
registration based on allegations that the Respondent's continued 
registration would be inconsistent with the public interest. 
Specifically, the Order to Show alleged that effective March 15, 2002, 
the California Medical Board (Medical Board) ordered that Respondent be 
prohibited from handling controlled substances based upon acts of 
negligence in both his care of patients and billing practices. The 
Order to Show Cause further alleged that a DEA investigation revealed 
the Respondent's failure to adhere to various DEA-recordkeeping 
requirements.
    By letter dated September 30, 2002, the Respondent, acting pro se, 
timely requested a hearing in this matter. On October 15, 2002, the 
presiding Administrative Law Judge Mary Ellen Bittner (Judge Bittner) 
issued to the Government as well as the Respondent an Order for 
Prehearing Statements.
    In lieu of filing a prehearing statement, the Government filed 
Government's Request for Stay of Proceedings and Motion for Summary 
Judgment. The Government argued that the Respondent is without 
authorization to handle controlled substances in the State of 
California, and as a result, further proceedings in the matter were not 
required. Attached to the Government's motion was a copy of a 
declaration from the Medical Board's Chief of Enforcement who averred 
among other things, that on March 15, 2002, the Medical Board issued an 
Interim Order of Suspension summarily suspending the Respondent's 
medical license. The Medical Board representative further stated that 
as of October 25, 2002, the Medical Board's Interim Order of Suspension 
remained in effect. On November 7, 2002, Judge Bittner issued a 
Memorandum to Counsel staying the filing or prehearing statements and 
afforded the Respondent until November 26, 2002, to respond to the 
Government's Motion.
    On or around October 30, 2002, the Respondent filed a prehearing 
statement where he disputed allegations that he maintained inadequate 
records of his handling of controlled substances. The Respondent 
maintained that his procedures for handling controlled substances were 
proper, and that prosecution witnesses offered biased testimony in the 
previous Board proceeding involving the Respondent's

[[Page 67477]]

medical license. However, the Respondent did not refute the allegation 
that he is presently without authorization to handle controlled 
substances in California.
    On December 10, 2002, the Respondent filed a copy of a document 
entitled Petition for Peremptory Writ of Mandate C.C.P. Section 1094.5. 
The writ apparently relates to a proceeding in the Superior Court for 
the County of Los Angeles, where the Respondent asserted that in or 
around November 2002, the Medical Board revoked his medical license 
effective December 6, 2002, that the Medical Board's actions were not 
supported by evidence, and that the Medical Board's revocation action 
was an abuse of its discretion. However, the Respondent again did not 
deny that he is without authorization to handle controlled substances.
    On January 13, 2003, Judge Bittner issued her Opinion and 
Recommended Decision of the Administrative Law Judge (Opinion and 
Recommended Decision). As part of her recommended ruling, Judge Bittner 
granted the Government's Motion for Summary Disposition and found that 
the Respondent lacked authorization to handle controlled substances in 
California, the jurisdiction in which he is registered with DEA. In 
granting the Government's motion, Judge Bittner also recommended that 
the Respondent's DEA registration be revoked and any pending 
applications for modification or renewal be denied. No exceptions were 
filed by either party to Judge Bittner's Opinion and Recommended 
Decision, and on February 20, 2003, the record of these proceedings was 
transmitted to the Office of the DEA Deputy Administrator.
    The Acting Deputy Administrator has considered the record in its 
entirety and pursuant to 21 CFR 1316.67, hereby issues her final order 
based upon findings of fact and conclusions of law as hereinafter set 
forth. The Acting Deputy Administrator adopts, in full, the Opinion and 
Recommended Decision of the Administrative Law Judge.
    The Acting Deputy Administrator finds that the Respondent currently 
possesses DEA Certificate of Registration BL2210300, and is registered 
to handle controlled substances in the State of California. The Acting 
Deputy Administrator further finds that on March 15, 2002, the Medical 
Board issued an Interim Order of Suspension summarily suspending the 
Respondent's medical license and prohibiting him from prescribing, 
furnishing, dispensing, or distributing any and all controlled 
substances. There is no evidence before the Acting Deputy Administrator 
that the Interim Order of Suspension has been lifted or modified. 
Therefore, the Acting Deputy Administrator finds that the Respondent is 
currently not licensed to practice medicine in California and as a 
result, it is reasonable to infer that he is also without authorization 
to handle controlled substances in that state.
    DEA does not have statutory authority under the Controlled 
Substances Act to issue or maintain a registration if the applicant or 
registrant is without state authority to handle controlled substances 
in the state in which he conducts business. See 21 U.S.C. 802(21), 
823(f) and 824(a)(3). This prerequisite has been consistently upheld. 
See Karen Joe Smiley, M.D., 68 FR 48944 (2003); Dominick A. Ricci, 
M.D., 58 FR 51104 (1993); Bobby Watts, M.D., 53 FR 11919 (1988).
    Here, it is clear that the Respondent is not currently licensed to 
handle controlled substances in California, where he is registered with 
DEA. Therefore, he is not entitled to maintain that registration. 
Because the Respondent is not entitled to a DEA registration in 
California due to his lack of state authorization to handle controlled 
substances, the Acting Deputy Administrator concludes that it is 
unnecessary to address whether the Respondent's registration should be 
revoked based upon the other grounds asserted in the Order to Show 
Cause. See Fereida Walker-Graham, M.D., 68 FR 24761 (2003); Nathaniel-
Aikens-Afful, M.D., 62 FR 16871 (1997); Sam F. Moore, D.V.M., 58 FR 
14428 (1993).
    Accordingly, the Acting Deputy Administrator of the Drug 
Enforcement Administration, pursuant to the authority vested in her by 
21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that 
DEA Certificate of Registration, BL2210300, issued to Jules M. Lusman, 
M.D., be, and it hereby is, revoked. The Acting Deputy Administrator 
further orders that any pending applications for renewal of such 
registration be, and they hereby are, denied. This order is effective 
January 2, 2004.

    Dated: November 13, 2003.
Michele M. Leonhart,
Acting Deputy Administrator.
[FR Doc. 03-29967 Filed 12-01-03; 8:45 am]
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