September 22

The Pencak Report, Fall 2015

How to Improve Pharmacy Quickly and Easily

I have a new idea that I don’t think anybody before me has considered. Many of you already know that I have represented pharmacies and pharmacists in most of the 50 states. Each state has different laws and you need to be licensed in every state to practice pharmacy there. After doing this for a long time I realized there really is no justification for having separate state pharmacy practice rules, laws and licenses.

What I propose is having one pharmacist license that would allow all pharmacists to practice in any of the 50 states. We would begin by grandfathering in all present pharmacists into the national license and new pharmacists would take a competence and law exam based upon the new standard of care. All 50 states would have the same pharmacy practice rules and all new pharmacists would take the identical pharmacy competence exam and pharmacy law exam.

Why is this a great idea? Think about it and you will find even more advantages than I outline below. Here are some benefits of a national pharmacist license:

  1. Every pharmacist would be free to move to the state that suits them in terms of climate and job market.
  2. Some states have too many pharmacists and other states have too few, so maldistribution of pharmacists would be cured by natural market forces.
  3. Pharmacists’ incomes might grow.
  4. The chain gods would be pleased because they could instantly staff the stores where they are having difficulties finding pharmacists.
  5. Pharmacists out of a job in Michigan or Ohio might choose to work in Hawaii or Oklahoma, etc.
  6. The practice of pharmacy should really be a national standard as in contemporary times there is no real difference between properly dispensing prescriptions in Oklahoma versus Michigan or New York.
  7. If you own a couple pharmacies on a borderline of a contiguous state, you could easily migrate from your two stores in Michigan to fill a niche in Ohio or in Indiana for example by opening pharmacies there.
  8. The public would benefit by having sufficient pharmacists and pharmacies where there are not enough currently.
  9. All pharmacists would know what the law is and not run into hidden traps because a state they are mail ordering to or otherwise doing business occasionally in, might cause you to have legal problems because you don’t know the quirks of an individual state’s licensing rules.
  10. National standard of care and better policing would be easier to comply with.
  11. Freedom to travel.
  12. Less oversight costs.

I am certain that you can think of other benefits to a national pharmacist’s license.

Quick Fix to Increase Pharmacist’s Pay

Many of you know that I was extremely successful in suing one of the biggest pharmacy chain stores for failing to pay pharmacists overtime for hours over 40. I’d like to sue them all now because they are abusing pharmacists by not paying them overtime. You may ask why don’t I? That’s because former President Bush “W” signed an amendment to the Fair Labor Standards Act (FLSA) exempting pharmacists from overtime pay requirements.

In truth, pharmacists working for chains are not salaried professionals, they are hourly employees. The easy answer is to repeal the amendment to the FLSA and remove pharmacists from overtime pay exclusion. This is the perfect time to push for that change because the politicians have a big election year coming up and they would be more receptive. Nah, they won’t change for us.

While we are on that subject, I would like to see our elected officials, congressmen, senators, governors and Supreme Court justices be required to wear NASCAR style coveralls with patches on their coveralls that show which billionaires and corporations directly sponsor them. To encourage the politicians and the Supreme Court to suffer the indignity of wearing coveralls identifying their secret owners, we could allow them to be paid for displaying their sponsor’s patch. The politicians would have even more money and you and I would be able to know in advance who controls them before we bring a request for a bill or file a case.

Too Much Education

There are too many colleges of pharmacy and the course lasts too long. There is an overabundance of pharmacists right now because there are too many colleges of pharmacy. And right now pharmacy has become a less attractive profession because the ratio to the cost of a pharmacy education debt to a pharmacist salary is 1 to 1. That means for example, that the pharmacist might be making $125,000.00 a year but he owes for his education the same amount of money plus accumulating interest.

It is much more desirable to enter a profession where the income greatly outweighs your student debt. Further, it is unnecessary to spend six years in college to be a pharmacist. You could eliminate at least one year and possibly two for an entry level pharmacist program. You are free to pursue advanced degrees in pharmacy if you wish.

So Now You Are a CPhT!

Congratulations! Now, the down side—because you have a license, the State can take it away from you. Therefore, pharmacy technicians should start reading my blog reports and get to know my name because now that you have a license you now have a whole range of duties and expectations that you never had before. You will now be a target for lawsuits and police.

Don’t Do This

Here is my list of don’ts:

  1. If you work for a big corporation do not lie to protect the corporation. A lot of corporations expect or demand that you lie when there is a lawsuit involving the wrongful termination of a pharmacist. If you think about this… even if you don’t mind committing perjury in order to save the company, ask yourself if you are willing to lie, will there come a day when the corporation gets rid of you because you’ve grown old or your health has a downturn? Won’t the other employees then tell lies to save the corporation when you’re the person suffering an unjust termination? From a moral standpoint, lying to protect big business is obviously wrong but you can also be charged criminally for perjury.
  2. Don’t agree to arbitration in lieu of jury trials. Arbitration is a stacked deck of cards in favor of the casino, the big corporation. A judge and jury is more likely to give you justice.
  3. Do not ever answer potentially incriminating questions by anyone without first consulting an attorney. Remember, the Fifth Amendment protects the innocent as well as the guilty. In this case, I am your only friend and advisor that cannot be compelled to inform on you.
  4. Do not text or email anyone ever about any sensitive situations. Remember, all telephone calls are routinely recorded and surveilled. Your smart phone can put you in an orange jumpsuit.
  5. Do not use public Wi-Fi at Starbucks or hotels and conference locations because lawyers, pharmacists and doctors can have identity theft as well as stolen protected client information. Starbucks, hotels and conference locations are especially prime target locations for hackers.
  6. Do not put any of your private information on your IPhone and carry it with you everywhere you go. Don’t use your thumbprint to lock your device because the police can easily access it at a traffic stop and use your prints to run amok.
  7. While the U.S. Supreme Court recognized that modern cell phones contain extremely private data and require protection from police intrusion by virtue of a search warrant, know this. It is relatively easy for police officers to get search warrants.
  8. I recommend having a 2nd cell phone that you only use as a telephone and not store critical data in there when traveling.
  9. If you are asked questions by state or federal authorities of any kind don’t answer questions without an attorney’s advice. You will only talk yourself into trouble. You won’t charm police with your cooperation. Leave cobra charming to a mongoose.
  10. Whether you are driving or a passenger in a car that is stopped by the police, never let the police know that you are a health professional. If you are a pharmacist or a nurse, if you don’t need to, don’t carry your license in your wallet or leave your hospital ID or parking pass in plain view. Cops will maliciously call your employer to get you fired. True example, driver boyfriend driving with a little too much EtOH, nurse passenger sober; cop calls her hospital about incident, she is fired! Trust me, this happens frequently.

Do This

  1. Do have a relationship with an attorney like me so you can call whenever you are stopped by the police on the highway, in your home or at work. It is unsafe interacting with the police on your own.
  2. If you are working in a dangerous pharmacy, demand a uniformed, armed security guard for the protection of you and the other employees. CVS can afford it.
  3. If your employer does not allow you to carry a firearm, consider purchasing modern, discreet bullet resistant clothing. Our president, athletes, executives and others are wearing business and leisure clothing that is highly bullet resistant and you can’t even notice it unless you know what to look for. There is every reason to expect even more armed robberies of pharmacies as there are less and less jobs for unskilled Americans.
  4. Do update you professional license address with the Board. And it is very important to check your mail regularly. If there is a Complaint that you fail to file an answer to you will be defaulted.

Biggest Deficiency in Worldwide Colleges of Pharmacy

I’m in a unique position as a lawyer representing pharmacists who were educated at colleges of pharmacy across the planet. In some countries the pharmacy colleges do not teach any ethics to its students. In American colleges of pharmacy ethics are poorly taught to students. I am certain that I could develop a curriculum to teach pharmacy ethics in an intense but short program that would equip pharmacists to avoid legal entanglements for the rest of their lives.

There is a lot more to professional ethics than simply saying do what’s good for the patient. There are many more sophisticated issues involving financial arrangements as well as issues of work productivity versus discrimination against protected workers as well as voluntary, romantic relationships between peers, patients and supervisors. Not all sexual relationships between the above are grounds for lawsuits but if you don’t know how the game is played, you can be victimized. There is a world of difference between demanding sex from an employee in return for favorable job treatment and two people falling in love with each other. I have seen many examples of both. One example is a meritorious lawsuit and big trouble. The other example has led to people I know who have been happily married for 20 or more years.

MTM Certification

I note with amazement that various groups are offering expensive and time consuming seminars for pharmacists to become certified to be paid for MTM. MTM as most of you know is Medical Therapy Management. What did you graduate from the College of Pharmacy for? Obviously, you were already abundantly qualified to perform MTM without the additional cost of seminars and certifications. To me it is an insult to pharmacists that some federal bureaucrat thinks pharmacists need an 8 hour course to learn how to provide MTM! Nurses are already being paid to perform MTM. This is another example of our profession’s failure to communicate our education, mission and qualifications. MTM is the raison d’etre of the profession of pharmacy.

March 26

Of Pharmacists Forced to Vaccinate, Arbitration

If a pharmacist can’t vaccinate patients can your pharmacy employer fire you? I have personally handled a few cases where pharmacists are unable to vaccinate patients. Thus far, I requested reasonable accommodations on behalf of the pharmacist and the employer has properly granted those requests. For example, a pharmacist may have a fear of injecting people or causing pain to others, or physically the pharmacist is unable to manage a crisis where a
patient has an anaphylactic shock.

On January 18, 2015, a New York District Court in a jury trial awarded $2.6 million to a pharmacist fired by Rite-Aid because he could not vaccinate customers. The case is Stevens v. Rite-Aid Corp et al, No. 6:13-cv-00783 (N.D.N.Y Jan. 18, 2015). In a nutshell, the plaintiff pharmacist had been working for Eckerd Pharmacy since 1977 and when Rite-Aid acquired Eckerd in 2007 he became a Rite-Aid employee. Four years later Rite-Aid required pharmacists to become trained to vaccinate customers, etc. Stevens had physician documentation that he has trypanophobia, an intense and irrational fear of needles. Instead of making a reasonable accommodation for Stevens’ problem with vaccination, Rite-Aid just fired him.

First, the pharmacist requested an EEOC investigation where Rite-Aid admitted that they fired Stevens simply because he refused to administer flu shots. Rite-Aid claimed that a needle phobia is not a disability per the ADA and therefore they could fire Stevens who had been a faithful pharmacy manager for years. The EEOC concluded that trypanophobia qualified as a disability and there was reasonable cause to believe Rite-Aid discriminated against Stevens’ disability by denying him reasonable accommodations and firing him in willful violation of the ADA. To make a long story short, that allowed him to go for a jury trial and the jury found in favor of Stevens. You can look this case up on the internet for all of the details. But what is important is that this gives hope to many pharmacists who have handicaps and phobias that hinder them from vaccinating people but does not interfere with their ability to work as pharmacists. Further, the most important lesson to learn is that a jury gave the pharmacist justice. If this pharmacist had signed a waiver with his employer of a right to a jury trial and instead opted for arbitration it is my considered opinion, that he would have lost the arbitration. This case demonstrates why employee pharmacists should not in my opinion, give up their valuable right to a jury trial and agree to binding arbitration for grievances with their employer.

When an employee or consumer must litigate, the big corporation has a huge advantage in arbitration; that is because the plaintiff is a common citizen who has little (and sometimes no money) and an injustice has been done by a fortune 500 corporation which has vast reserves of money and clout. Think about it from the perspective of the arbitrator. Generally, the plaintiff and the corporation agree upon an arbitrator. But the reality of it is, the corporation always gets favorable treatment from the arbitrator because the arbitrator knows that that the corporation is repeat business for him. If the arbitrator finds in favor of the little guy the corporation will never hire him again. It is in the arbitrator’s financial interest to side with the mega-corporation every time. Think of arbitration as a casino and the arbitrator is a slot machine.

January 5

Health Professionals Completing Applications

Today health professionals are required to certify the accuracy of answers to many applications for licenses from state and federal government, applications for contracts with insurance companies, PBM’s, wholesalers, and various boards of specialty certifications, etc. Many of the key questions are poorly worded and sometimes ambiguous.

You cannot believe the number of health professionals seriously harmed when the answers to application questions—particularly those regarding prior disciplinary history or criminal record—are answered inaccurately. The consequences when a health professional misreads a question and in good faith answers it erroneously are enormous including: loss of license, loss of board certification, loss of Medicare certification, insurance contracts, and the list goes on and on. This situation becomes particularly burdensome when you are licensed in more than one state. If you have any complications in your professional history or you are not certain about how to answer a question, call me at (586) 598-4650 and we will complete the document together.

It is bad enough when the busy health professional skims through the questions and answers and makes declarations and certifications on his own but it is even more dangerous when you delegate the answering of the questions to other persons who may not complete the forms carefully enough. It is not a defense that someone else filled in the questions when the health professional signs that they have read and answered the questions truthfully and accurately.

Along the same lines, be certain that all of the boards in all of the states know your most reliable mailing address. Many times, the Board of Pharmacy or Medicine sends a formal complaint or other very serious document to the address they have on file. If it is an old address or the mail goes to a location where you don’t check your mail frequently, disasters occur. That disaster is you are defaulted on the complaint which leads most frequently to an immediate revocation of your license. Many times the default cannot be overturned. That means that whatever explanation or defense you have to the allegations will not be heard and they will be treated as the truth and you will be punished accordingly. All because you didn’t get your complaint on time in the mail or more recklessly, you decide to ignore it hoping…“it will go away if I ignore this”. They won’t ignore you and you will lose in a major fashion.

Like it or not, you have to stay on top of correspondence from various state boards and you have to address matters in a timely and professional manner. Despair and procrastination does not help. Ignoring problems always results in disasters.

In short and plain language, spending a few dollars on an attorney such as me to assist you with completing important applications and certifications is money extremely well spent. Additionally, if you get correspondence or a phone call from a state regarding your professional license, this is not amateur time and you really need an attorney with specialized knowledge. What you say or don’t say will be held against you. The ideal response is to contact me before you say or do anything. What you say to authorities will likely be exactly the wrong thing or it will be intentionally misconstrued or misrepresented in reports. Life does not give you rehearsals or do-overs.

It has always been thus but today it is more important than ever for you to use your constitutional right to an attorney and your right to silence. Remember that the Fifth Amendment right to remain silent protects the innocent as well as the guilty. Don’t hang yourself with your own tongue.

November 4

New Pharmacist Duty

A federal district court in Utah held that pharmacists have a duty to counsel patients when they offer advice or recommendations about non-prescription drugs – OTCs. The duty owed by pharmacists is to offer advice in conformance with what a reasonable, prudent pharmacist would do in the same circumstances. If you are interested in reading the case – Whiting ex rel. Estate of Theron Daniel Whiting, No. 2:12-CV-288 DN (D. Utah June 24, 2014). This case is not binding precedent yet.

The gist of the case is that a wife called a pharmacist and asked whether her husband could take Sudafed. The wife didn’t explain the husband’s complete medical history; specifically that he suffered from “prostate trouble”. The Sudafed allegedly exacerbated the husband’s prostate trouble causing difficulty urinating, bladder distension, and burst blood vessels in the bladder.

While the court’s ruling is not binding precedent yet, it is certainly well reasoned. Contrary to what businesses pound into the public’s head, it is exceptionally difficult to win a professional malpractice case and the damages are generally much less than they ought to be. In most states there are caps on professional malpractice damages and even if a jury awards 42 million dollars, the judge quietly reduces the actual judgment to a fraction of that with a stroke of his pend.

If you want to avoid this kind of lawsuit, don’t make any recommendations. If you want to advise patients about OTCs then use the same care that a reasonably competent pharmacist would use.