Joseph L. Fink, BSPharm, JD
A pharmacist who does not attend his revocation hearing later appeals the decision against him.
Issue of the Case
When a board of pharmacy has commenced proceedings to revoke a pharmacist’s license to practice in the state, and the pharmacist declines to attend the hearing on the matter, may the board proceed with the revocation and will that administrative action withstand judicial review?
Facts of the Case
The Department of Health in a state in the Northwest launched an investigation regarding prescription dispensing and billing practices at a pharmacy and one of the pharmacists practicing there voluntarily contacted the agency to provide information. He met with officials from both the state agency and the US Department of Health and Human Services (HHS), describing the fraudulent practices and medications involved. However, he did not implicate himself in the scheme.
During further investigation it came to light that this pharmacist was potentially involved in the prescription fraud schemes. This information was referred to the board of pharmacy and the board approved an investigation of his activities. Later, he agreed to meet with agency and HHS investigators again, and during this session he was presented with information that implicated him in the scheme. The agency’s investigator presented the pharmacist with a packet explaining the investigation, informing him of his rights, and pointing out that any written statement he made could be used in disciplinary proceedings. The pharmacist signed a document entitled “Respondent’s Written Statement Notice” informing him that:
“You may consult with an attorney, at your expense, prior to providing a written statement. Your statement may be used in a hearing if disciplinary action is deemed necessary regarding this matter.”
Five days later the pharmacist again met with the investigators where he reviewed an 11-page summary of his oral statement. He reviewed and modified that document, signed the statement at the end, and initialed on each page this statement: “I have received no threats, promises or coercion in preparing this statement. I declare under penalty of perjury under the law of (this state) that the foregoing is true and correct and I will so testify.”
The pharmacist was charged with unprofessional conduct. He denied the charges and requested a hearing. During the prehearing discovery process, he refused to appear at a deposition session despite having been served with a subpoena, claiming that federal prosecutors had granted him immunity. However, he was unable to produce any evidence supporting the existence of the immunity agreement. He subsequently made a motion to suppress all oral and written statements he had made to the investigators. That motion was denied.
There were a variety of other hearingrelated motions and activities, with the pharmacist prevailing on none of them. The board held a hearing and the pharmacist refused to attend and participate. Six weeks later, the board ordered revocation of his license to practice in the state, appending an order that he could not apply for reinstatement for 20 years.
Additionally, the pharmacist was told that if he wished to ask the board to vacate the order he must do so within 7 days. Two weeks later, he filed an action in the local state court requesting that his case go directly to the court of appeals for judicial review. The local court denied that request and subsequently affirmed the decision of the board.
The pharmacist filed an appeal with the state court of appeals, seeking review of the lower court’s decision as well as the action of the board.
The Court’s Ruling
The decisions of the board of pharmacy and the lower court were upheld on appeal.
The Court’s Reasoning
The court began by emphasizing 2 dual purposes of disciplinary proceedings— to protect the public and to protect the standing of professions in the eyes of the public. It also emphasized that the burden of challenging the decisions rested fully with the pharmacist.
The board did have authority under state law to enter a default judgment against the pharmacist when he failed to appear at the hearing and participate. Once such a judgment was entered he had to move to vacate it within 7 days, which he did not do. Therefore, he did not exhaust all administrative remedies available to him, a prerequisite for judicial review. Accordingly, the court ruled in favor of the agency and upheld the ruling of the lower court. The appellate court also concluded that the board, in fact, did have clear and convincing evidence to support the allegation that the pharmacist engaged in unprofessional conduct when pursuing the prescription fraud scheme.
As a final note, the pharmacist asked the US Supreme Court to review his case, and the nation’s highest court declined to do so.
Dr. Fink is professor of pharmacy law and policy and Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.