[Federal Register Volume 62, Number 26 (Friday, February 7, 1997)]
[Notices]
[Pages 5849-5850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3051]
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DEPARTMENT OF JUSTICE
Kenneth Kleiner, M.D.; Revocation of Registration
On October 20, 1995, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA) issued an
Order to Show Cause to Kenneth Kleiner, M.D., of Woodside, New York,
notifying him of an opportunity to show cause as to why DEA should not
revoke his DEA Certificate of Registration,AK1048203, pursuant to 21
U.S.C. 824(a)(3), and deny any pending applications for registration
pursuant to 21 U.S.C. 823(f). Specifically, the Order to Show Cause
alleged that the State Board for Professional Medical Conduct, State of
New York, revoked his license to practice medicine in New York by Order
dated December 15, 1994, and consequently, Dr. Kleiner is without state
authorization to handle controlled substances in the State of New York.
The Order to Show Cause was ultimately served upon Dr. Kleiner, and
by letter dated May 14, 1996, Dr. Kleiner requested ``an adjournment of
the hearing'' pending the outcome of civil litigation concerning his
state medical license. On May 21, 1996, the Office of Administrative
Law Judges sent Dr. Kleiner a letter stating that it is unclear whether
or not he is requesting a hearing and advising him to respond by June
5, 1996 to request a hearing, otherwise his right to a hearing will be
deemed waived. Dr. Kleiner responded by letter dated June 4, 1996,
stating, ``I respectfully request neither a hearing nor a waiver of
such hearing, but rather an adjournment until such time as the instant
matter may be fairly and justly adjudicated,'' apparently referring to
his pending civil action. Thereafter, on June 14, 1996, Administrative
Law Judge Mary Ellen Bittner advised Dr. Kleiner that pursuant to 21
C.F.R. 1301.54(d) and (e), he is deemed to have waived his opportunity
for a hearing, inasmuch as he has not requested a hearing. Judge
Bittner further advised Dr. Kleiner that his letters dated May 14 and
June 4, 1996, would be forwarded to the Deputy Administrator for
consideration in rendering his decision in this matter.
The Acting Deputy Administrator concurs with Judge Bittner's
conclusion that Dr. Kleiner has waived his opportunity for a hearing.
Therefore, after considering relevant material from the investigative
file in this matter, as
[[Page 5850]]
well as Dr. Kleiner's letters, the Acting Deputy Administrator now
enters his final order without a hearing pursuant to 21 C.F.R.
1301.54(e) and 1301.57.
The Acting Deputy Administrator finds that by order dated December
15, 1994, the State Board for Professional Medical Conduct, State of
New York (Board) revoked Dr. Kleiner's license to practice medicine and
assessed an $80,000 fine against him. This action was based upon
findings that Dr. Kleiner prescribed drugs for which there was no
medical indication; that he indiscriminately prescribed habit-forming
drugs; that he failed to produce medical records for his patients
despite being issued a subpoena for the records; that he willfully
harassed a patient; and, that he exercised undue influence on a
patient.
While Dr. Kleiner has indicated in letters dated May 14 and June 4,
1996, that there is pending civil litigation regarding the Board's
action, there is no indication in the record that the Board's
revocation has been stayed pending the outcome of the civil proceeding.
Consequently, the Acting Deputy Administrator finds that in light of
the Board's revocation of Dr. Kleiner's medical license, he is not
currently authorized to handle controlled substances in the State of
New York.
The 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 his business. 21 U.S.C. 802(21),
823(f), and 824(a)(3). This prerequisite has been consistently upheld.
See Earl G. Rozeboom M.D., 61 Fed. Reg. 60,730 (1996); Charles L.
Novosad, Jr., M.D., 60 Fed. Reg. 47,182 (1995); Dominick A. Ricci,
M.D., 58 Fed. Reg. 51,104 (1993). Here, Dr. Kleiner is not entitled to
a DEA registration.
Accordingly, the Acting Deputy Administrator of the Drug
Enforcement Administration, pursuant to the authority vested in him by
21 U.S.C. 823 and 824 and 28 C.F.R. 0.100(b) and 0.104, hereby orders
that DEA certificate of Registration, AK1048203, previously issued to
Kenneth Kleiner, M.D., be, and it hereby is, revoked. The Acting Deputy
Administrator further orders that any pending applications for
registration be, and they hereby are, denied. This order is effective
March 10, 1997.
Dated: January 28,1 997
James S. Milford,
Acting Deputy Administrator.
[FR Doc. 97-3051 Filed 2-6-97; 8:45 am]
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