Pharmacy Law: Board of Pharmacy Reciprocal Sanctions Policy

ISSUE OF THE CASE

When a pharmacist is licensed to practice in 2 states and then has an adverse action regarding licensure in 1 of the states, may the other state take adverse action based on what occurred in the first state?

FACTS OF THE CASE

A pharmacist who held a license in one state (state A), based on having successfully passed the licensure examination, moved to another state (state B) and obtained licensure there by reciprocity. A family tragedy occurred, and on the anniversary of the event, the pharmacist became intoxicated and had to be treated for alcohol poisoning. She initiated contact with the state’s pharmacist recovery network (PRN) and entered into a monitoring contract on a voluntary basis.

The following year, the board of pharmacy in state B suspended her license because she had failed to honor her commitment to comply with the provisions of the PRN monitoring contract. The board imposed as a condition for reinstatement that the PRN of the state express support for termination of the suspension and endorse the restoration of her ability to practice. The suspension order also specified that only the PRN of state B could monitor her recovery process.

Unable to practice pharmacy and thereby support herself in state B, she returned to state A, where she secured employment as a pharmacist. She voluntarily enrolled in the PRN of state A and actively participated in therapy.

Despite these initiatives on her part, the board of pharmacy in state A initiated proceedings to suspend her license to practice there because of the action of the board of pharmacy in state B in suspending her license to practice. In the view of the board in state A, per its Pharmacy Practice Act, the board had authority to take such disciplinary action and impose an enforced suspension of the pharmacist’s license.

The matter was referred to an administrative law judge (ALJ) who conducted the disciplinary proceedings. He conducted an evidentiary hearing focused exclusively on the appropriate sanction to be imposed. That led him to recommend a 5-year probated suspension, meaning that the pharmacist would need to comply with a period of good behavior under supervision but would not be subject to license suspension during that time. The ALJ concluded that the mitigating factors in her cases outweighed the aggravating factors. The board in state A disagreed and made the pharmacist’s suspension of licensure there run concurrently with the suspension in state B. This was based on the board’s previously articulated policy that a pharmacist with an active suspension in another state cannot practice pharmacy in state A.

Feeling that the action of the board was arbitrary and capricious because it was based on an unwritten “reciprocal sanctions” policy, the pharmacist took the matter to state court for review of the action of the administrative agency. Another motivation was that the orders of the boards in both states bore requirements that she participate in or complete several tasks in person, such as attend meetings and be present for screenings for alcohol and drugs. The state district court reversed the decision of the board and sent the matter back to the agency for further action. The board did not agree with the decision at that level of the state court system and appealed to the state court of appeals.

THE COURT’S RULING

The appellate court decided that the board’s enforced suspension of her license to run concurrently with the suspension in state B resulted from an improper application of a “rule” because the reciprocal sanctions “rule” was not properly adopted by the board under the state’s Administrative Procedures Act.

THE COURT’S REASONING

The court noted that the board of pharmacy had formally promulgated rules setting forth guidelines to be considered in determining sanctions for violations of the Pharmacy Practice Act. It was noted that the “ultimate purpose of disciplinary sanctions is to protect and inform the public, deter future violations, offer opportunities for rehabilitation, if appropriate, punish violators, and deter others from violations.” The guidelines were also intended to “promote consistent sanctions for similar violations.”

The court emphasized that it was undisputed that the board had authority under the Pharmacy Practice Act to impose the discipline and enforce suspension of the pharmacist’s license. But in doing so, the actions of the board must conform to the state’s Administrative Procedures Act. The board did not dispute the fact that in the present case it had employed what it described as a “nonbinding policy, practice, or precedent of imposing reciprocal sanctions.” The board further conceded that it had not adopted the policy, practice, or precedent in accordance with the formal rule making procedures specified in the state’s Administrative Procedures Act. That oversight proved to be fatal for the board’s decision. The court ruled that the “rule” was invalid and should not have been applied in the matter pertaining to this pharmacist. The matter was sent back to the board for reconsideration of the sanctions under rules that had been adopted in a fashion consistent with the state’s Administrative Procedures Act.

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.