Lately many of my clients have been plagued with extremely aggressive, to the point of rude visits by persons called OIG inspectors doing a Medicaid audit. However, these audits are unlike any audit you have ever had before. The OIG inspectors who are not pharmacists and are not educated in pharmacy medicine, science or statistics come into the pharmacy and demand to be admitted to the dispensing area.
In my opinion, they have no authority to enter your pharmacy but in fact, are prohibited by law from doing so. Under Michigan law, only a pharmacy board inspector, the DEA or a police task force concentrating on drug investigations can enter a pharmacy. As many of you know, if you are not a pharmacist but own a pharmacy you are only supposed to be in the area where there are drugs when a licensed pharmacist is with you.
Additionally, the auditors act in a very intimidating manner, often refusing to talk to counsel, including me. They assert that they are entitled to have a drug utilization report (DUR) dating back as far as seven years for all prescriptions including cash, HAP, Blue Cross, etc. However, in my opinion the language and interpretation of the regulations only allow Medicaid auditors to examine records required to be kept by law in the provision of services to Medicaid patients. In other words, they are not entitled to information about HAP, cash, Caremark, etc., its prescription or DUR.
Further, they want to know who your employees are, past and present as well as their telephone numbers and personal data. Along with this they want you to tell them who all of your drug inventory suppliers are. What pharmacist remembers every wholesaler or provider of inventory for a year let alone several? Further, many of the wholesalers you might have dealt with on occasion are now out of business and their records are irretrievable.
What is their game? Very easy. I surmise, to put small pharmacies in Dearborn out of business through intimidation or simply to take money from a pharmacy that it cannot afford.
The legitimate standard for the audit industry is batch sampling with a random selection of prescriptions. What these OIG auditors want to do is unscientific, unfair and discriminatory. They want to just state that for example over seven years a pharmacy may have billed $2,000,000.00 for Medicaid prescriptions. However, with the wholesalers that pharmacy recalls (assuming they cooperate accurately) the audit may total inventory purchases of say $1,200,000.00. So they want the pharmacy to pay 800,000.00! That sounds like simple math but it is not proof of fraudulent billings and is grossly discriminatory and unfair.
On Tuesday, September 13, 2016 I cross examined these auditors under oath and learned much. Asking one auditor under oath how many audits he did, and he said 25. I asked of those 25 how many of the pharmacies were corporations owned by people with Arabic surnames? Answer was all 25. I asked them whether they are auditing CVS, Rite Aid, Walgreen, etc., in the same fashion and they said no. You can guess why they don’t want to screw with the big drug chains right?
Even if you are not Arabic or a hospital pharmacist you should care. We are all brother and sister pharmacists and we must support each other. If you are being plagued by these so-called OIG Medicaid audits please call me and we can discuss what to do about this. In the meantime, I would imagine that affected pharmacies would be marshalling their forces to launch a discrimination lawsuit in addition to other torts and causes of action, I would love to file this lawsuit!
Believe me all of my pharmacists complain that it is extremely hard to make an honest living with the low reimbursements from insurance companies and these hyper aggressive supposed Medicaid audits are taking what little pleasure is left in the profession as well as the dignity and wellbeing of the pharmacist and employees.
I fear for the future because I’m probably one of the last attorneys left that stands up for smaller people and businesses and the large law firms would just as soon play baseball with the State to maintain their comfortable lifestyles.
Best wishes to all.

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. www.pharmacylawpro.com

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.