03-29967. 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 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.