Board’s License Revocation Hearing Is Conducted Without Pharmacist Participating

Issue of the Case

When a disciplinary action review committee proceeds with a hearing but the pharmacist who was the focus of the matter was not present, should that be grounds for overturning the resulting revocation of a license to practice pharmacy?

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Facts of the Case

This case arose in a mid-Atlantic state and began to unfold when a pharmacist entered a guilty plea and, as a result, was convicted of attempting a criminal sale of a prescription-controlled substance. Two years later, she was sent a letter by appropriate officials at the state licensure agency informing her that she had been charged with professional misconduct and that disciplinary penalties that could affect her licensure as a pharmacist were under consideration. The notice informed her that the matter would be subject to a hearing. She was also informed that she had an opportunity to submit a brief to the committee outlining her position and that she had a right to appear in person at the hearing, a right to call witnesses on her behalf, and a right to have legal counsel for the matter.

The initial hearing date was pushed back 2 months by the administrative committee that would be conducting the hearing, and that decision was communicated to her. Following that, her attorney requested additional time to prepare because the pharmacist was feeling “very ill” and was “not up to being able to appear” for the proceedings. The state’s Office of Professional Discipline objected to that request because the original criminal matter in the court system had been delayed 3 years due to her “dilatory actions.” The administrative committee, however, sided with the pharmacist, and the requested delay was granted.

When the requested delay was being considered by the review committee, a member of the panel stated on the record that any successor committee that took up the matter should “pay great attention to the record of adjournment requests and the challenge of engaging with [the pharmacist], both during the litigation phase in the court system and during the professional discipline phase.” That member of the review committee also stated that “except in the case of extraordinary circumstances, no further adjournments should be granted.”

Nonetheless, on the date of the now-rescheduled hearing, the pharmacist informed the committee that the attorney who had been representing her up to that point had discontinued his representation of her and that she had been informed of that just 2 days prior. Based on that turn of events, the committee granted the pharmacist an extension so that she could arrange for new legal counsel. The committee emphasized that this adjournment was not based on health issues and that the pharmacist would have “ample time” to address her health issues prior to the hearing.

As might be anticipated, 9 days before the again rescheduled hearing, the pharmacist requested an extension because she was not feeling well and had not yet lined up an attorney to represent her. This request was denied by the committee, but she was informed that the hearing would proceed using video-conference technology. Receiving that notification, the pharmacist requested an adjournment the next day after having been so notified, citing the same reasons. That request was also denied.

The hearing was held on a date now 5 years after the judicial matter and 3 years after the initial notice from the administrative agency. At the hearing, licensure officials presented the original detailed indictment leading to the court proceedings, the transcript of her entering her plea of guilty, the sentencing decision of the court, and a certification of disposition by the judge. The pharmacist submitted a reply brief prepared by her former attorney, but she did not participate. The committee considered all of that and concluded that she was guilty of professional misconduct and recommended a revocation of her pharmacy practice license. The pharmacist sued, seeking to have a court overturn that revocation order.

The Court's Ruling

The court upheld the decision of the licensure agency.

The Court's Reasoning

The pharmacist’s principal argument was that her due process rights had been violated because of the denial of a request for further rescheduling and for proceeding with the hearing without her present. The court pointed out that due process rights do not require presence of the accused; rather, they require that the individual be notified and given an opportunity to respond. Those expectations were met.

She also argued on appeal that the penalty of revocation of licensure was excessive. The court disagreed, pointing out that an administrative penalty “falls within the discretion of the reviewing agency” and should not be overturned unless it shocks one’s sense of fairness.

An important takeaway from this case is that one should assign a high priority to responding to communications from licensure agencies. Also, it is a common misconception that due process requires one to be present for proceedings. That is not so; the requirement is that one be presented with an opportunity to participate.

About the Author

Joseph L. Fink III, JD, DSC (HON), BSPharm, FAPhA, is a professor emeritus of pharmacy law and policy and the former Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.