Does Having an Inactive License Mean That a Board Cannot Apply Sanctions?

ISSUE OF THE CASE

A pharmacist licensed in one state voluntarily surrendered his license to practice there, and that information became known to licensure authorities in another state where he held an inactive license. Can the board in that second state revoke his inactive license within its jurisdiction?

FACTS OF THE CASE

A pharmacist in a mid-Atlantic state was fired from a hospital, and this came to the attention of the board of pharmacy. The termination was based on his diversion of a variety of controlled substances. In addition, he had on occasion diluted medications intended for patients so he could divert them for his own use. He voluntarily surrendered his license to practice, and the board ordered that he cease and desist practicing pharmacy, pending meeting rehabilitation and monitoring requirements.

This action came to the attention of the board of pharmacy in a neighboring state where the pharmacist also held a license. However, that license had been inactive for more than 10 years. Nonetheless, that board began action to suspend, revoke, or otherwise restrict his license in that state, based on the disciplinary action meted out by the board of the neighboring state. The pharmacist responded to the proposed action against his inactive license by submitting a letter to the board requesting that his license remain on inactive status.

The board scheduled a hearing, but the pharmacist did not attend. The board made a submission to the hearing officer of the order to show cause that listed the facts that had come to its attention. It also submitted the response letter from the pharmacist.

The hearing officer recommended that the license to practice be indefinitely suspended until the first state had restored the license there to non-probationary, unrestricted status. His reasoning was that the citizens of the second state deserved as much protection as those of the first state. He also noted that the pharmacist had been subject to a number of licensure sanctions by the board over the prior 13 years.

The board received the report of the hearing officer, adopting his findings of fact and conclusions of law. However, the board modified his recommendation of an indefinite suspension of licensure to the more severe penalty of revocation. The board viewed the diversion of drugs by a pharmacist as extremely serious and emphasized that its responsibility related to discipline of professionals it licenses is multifaceted. The penalty is a deterrent and has a punishment component, with the appropriate sanction derived from the specifics of each case. The board emphasized its duty to protect the public as well as the integrity of the profession, leading it to impose a more stringent sanction than the hearing officer had recommended.

The pharmacist sought court review. He saw the revocation order as excessive and not supported by substantial evidence, especially because his license was inactive and he did not plan to return to the state to practice pharmacy.

THE RULING

The court affirmed the decision of the board to revoke the inactive license in the second state.

THE COURT’S REASONING

The court began by emphasizing that its role was to determine whether the administrative agency had abused its discretion, committed an error of law, or violated the pharmacist’s constitutional rights. The board’s decision must be supported by substantial evidence, with “substantial” defined as “that relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”

The court then turned its attention to the specific wording of the state’s pharmacy practice act, seeing a provision that specifically assigned the board the power to revoke a license if it found “proof satisfactory to it that the pharmacist…has had a license to practice pharmacy suspended, revoked, or refused, or received other disciplinary action by the proper pharmacist licensing authority of another state, territory, or country.”

The board is not bound by the decision of the hearing officer. The state’s highest court ruled that where, as in this case, the pharmacist was given a full and fair opportunity to present arguments and evidence to the hearing officer, there is no right to additional notification and another hearing before the board imposes a more severe sanction.

The overarching conclusion was that given the pharmacist’s licensure history in the state in conjunction with his substance abuse issues, the disciplinary action taken against him by the board of pharmacy in the neighboring state, the lack of mitigating evidence, and the state’s interest in protecting its citizens, the board had not committed an error. The revocation was upheld.

Joseph L. Fink III, BSPharm, JD, DSc (Hon), FAPhA, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.