Federal Register / Vol. 62, No. 26 / Friday, February 7, 1997 / Notices 5849

assurances at the hearing as to how he

would avoid a relapse. It is without

question that Respondent exhibited a

cavalier attitude towards controlled

substances from 1988 to mid-1991, but

the evidence in the record supports a

finding that Respondent has been

diligent in his efforts to correct and

control his problem and understands

the severity of the consequences should

he begin abusing controlled substances

again.

In its exceptions, the Government also

cites to David W. Bradway, M.D., 59 FR

6297 (1994), arguing that in that case the

application was denied even though the

applicant presented evidence regarding

his rehabilitation from drug abuse, his

ability to responsibly handle controlled

substances, and the unlikelihood of his

relapse into drug abuse. However, the

Acting Deputy Administrator concludes

that in that case, the underlying

circumstances of the applicant’s selfabuse were far more serious than the

circumstances surrounding

Respondent’s abuse of controlled

substances. In addition, in Bradway, it

was determined that the applicant had

‘‘not demonstrated either ethical

conduct nor trustworthy behavior to

warrant the granting of a DEA Certificate

of Registration.’’ The Acting Deputy

Administrator concludes that

Respondent has shown, through this

continued rehabilitative efforts even

though no longer required by the State

of Tennessee, that he can be trusted to

responsibly handle controlled

substances subject to the restrictions

recommended by Judge Bittner.

The Government further argues in its

exceptions that the Acting Deputy

Administrator should not credit

Respondent’s explanation that his use of

controlled substances caused him to

exercise poor judgment. The

Government contends that ‘‘[t]he

granting of a DEA registration under

such circumstances would open the

door for future litigants to misuse the

substance abuse defense in rationalizing

flagrant violations of controlled

substances laws and regulations.’’ If the

Acting Deputy Administrator accepted

the Government’s argument, no

applicant who had abuse controlled

substances in the past would ever be

granted a DEA registration regardless of

any rehabilitative efforts. Instead, the

Acting Deputy Administrator is charged

with evaluating the facts and

circumstances surrounding each

application to determine whether

registration would be inconsistent with

the public interest. In this case, the

Acting Deputy Administrator concludes

that the record supports a finding that

Respondent’s behavior was caused by

his abuse of controlled substances, and

there is no evidence of any wrongdoing

by Respondent since he entered

treatment in 1991.

The Government alternatively argues

in its exceptions that should a

registration be issued to Respondent it

should be restricted to schedules IV and

V for a three year period, thereby

allowing Respondent to demonstrate

that he can ‘‘properly handle controlled

substances in schedules with the least

potential for addiction * * *.’’ Given

Respondent’s past behavior, the Acting

Deputy Administrator appreciates the

Government’s argument. However, the

Acting Deputy Administrator does not

believe that restricting Respondent’s

registration to Schedules IV and V

would better protect the public interest,

since the drugs that Respondents abused

himself were in Schedule IV. The

Acting Deputy Administrator concludes

that the restrictions recommended by

Judge Bittner are sufficient at this time

to monitor Respondent’s handling of

controlled substances and to protect the

public interest. Therefore, the Acting

Deputy Administrator finds that it

would not be inconsistent with the

public interest at this time to grant

Respondent’s application for

registration, provided that for three

years after Respondent is granted a DEA

registration: (1) Respondent is not to

order or dispense controlled substances

except in a medical clinic or hospital

environment; (2) Respondent is to

continue his association with the

Tennessee Medical Foundation’s

Impaired Physicians Program, continue

attending Caduceus group meetings, and

continue attending Alcoholics

Anonymous or a similar program; (3)

Respondent is to continue random drug

screening at his own expense; and (4)

Respondent shall maintain a log of all

prescriptions for controlled substances

he issues, and is to submit that log for

review to the Nashville DEA office at

the end of each calendar quarter. The

log shall include at a minimum, the

name of the patient, the date the

prescription is issued, and the name,

dosage and quantity of the drug

prescribed.

Accordingly, the Acting Deputy

Administrator of the Drug Enforcement

Administration, pursuant to the

authority vested in him by 21 U.S.C. 823

and 28 CFR 0.100(b) and 0.104, hereby

orders that the application, submitted

by Joseph S. Hayes, M.D., for a DEA

Certificate of Registration in Schedules

II through V, be and it hereby is granted

subject to the above described

restrictions. This order is effective

March 10, 1997.

Dated: January 31, 1997.

James S. Milford,

Acting Deputy Administrator.

[FR Doc. 97–3084 Filed 2–6–97; 8:45 am]

BILLING CODE 4410–09–M

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
5850 Federal Register / Vol. 62, No. 26 / Friday, February 7, 1997 / Notices

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 habitforming 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]

BILLING CODE 4410–09–M

Keith A. Lasko, M.D.; Revocation of

Registration

On March 13, 1996, the Deputy

Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Keith A. Lasko, MD.,

of Meridian, Mississippi, proposing the

revocation of his DEA Certificate of

Registration BL3109940 and denial of

any pending applications for renewal of

such registration as a practitioner

pursuant to 21 U.S.C. 824(a)(3), for the

reason that he is not currently

authorized to handle controlled

substances in the State of Mississippi.

The order also advised that should no

request for a hearing be filed within 30

days, his hearing right would be deemed

waived.

The Order to Show Cause was sent to

Dr. Lasko by registered mail to his DEA

registered address, but was returned to

DEA with the notation ‘‘attempted,

unkown’’. DEA made numerous other

attempts to locate Dr. Lasko.

Investigators determined through the

American Medical Association that he

was not currently practicing in any of

the other states where he was licensed

to practice medicine. A check of drivers’

license records in a number of states

revealed that Dr. Lasko did not have a

current driver’s license in any of those

states. Earlier attempts to deliver

correspondence to Dr. Lasko at various

locations via registered mail were

unsuccessful, and Dr. Lasko did not

leave any forwarding address.

The Acting Deputy Administrator

finds that DEA has made numerous

attempts to locate Dr. Lasko and has

determined that his whereabouts are

unknown. It is quite evident that Dr.

Lasko is no longer practicing medicine

at the address listed on his DEA

Certificate of Registration. The Acting

Deputy Administrator concludes that

considerable effort has been made to

serve Dr. Lasko with the Order to Show

Cause without success. Dr. Lasko is

therefore deemed to have waived his

opportunity for a hearing. The Acting

Deputy Administrator now enters his

final order in this matter without a

hearing and based on the investigative

file. 21 CFR 1301.54 and 1301.57.

The Acting Deputy Administrator

finds that in June 1992, the Medical

Board of California filed an accusation

against Dr. Lasko alleging, among other

things, that he excessively used

diagnostic procedures; that he

committed acts of dishonesty in that he

falsely billed for diagnostic procedures;

and that he created false medical

records. The Medical Board of

California then entered a default

decision revoking Dr. Lasko’s license to

practice medicine in the State of

California effective January 22, 1992.

Subsequently, on July 24, 1992, the

Mississippi State Board of Medical

Licensure (Board) issued a summons to

Dr. Lasko ordering him to appear before

the Board and alleging that grounds

exist to take action against his license to

practice medicine in the State of

Mississippi based upon the revocation

of his California medical license. By

letter dated October 20, 1992, Dr. Lasko

informed the Board that he no longer

wishes to practice medicine in the State

of Mississippi and ‘‘am hereby revoking

my Mississippi medical license.’’

Thereafter, on November 23, 1992, the

Board issued an Order Accepting

Surrender of License finding that Dr.

Lasko’s letter ‘‘expresses a clear intent

to surrender his license to practice

medicine in the State of Mississippi.’’ A

letter in the investigative file dated

February 16, 1996, from the Board states

that its records indicate that Dr. Lasko’s

license expired as of June 30, 1992.

Consequently, the Acting Deputy

Administrator finds that in light of the

foregoing, Dr. Lasko is not currently

licensed to practice medicine, nor

authorized to handle controlled

substances, in the State of Mississippi.

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

FR 60,730 (1996); Charles L. Novosad,

Jr., M.D., 60 FR 47,182 (1995); Dominick

A. Ricci, M.D., 58 FR 51,104 (1993).

Here, Dr. Lasko is not currently licensed

to practice medicine, and therefore not

authorized to handle controlled

substances, in the State of Mississippi.

Hence, Dr. Lasko 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 CFR 0.100(b) and 0.104,

hereby orders that DEA Certificate of

Registration BL3109940, previously

issued to Keith A. Lasko, 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

March 10, 1997.