On The Docket
David B. Brushwood, BSPharm, JD
HHS has the authority to exclude pharmacists who have been convicted of controlled substance violations from working in any facility that receives payment from Medicare, Medicaid, or any other federally funded health care program.
Background
According to the court report from a recent case, a pharmacist began to divert opioids from pharmacy stock to his own use. Following DEA discovery of this unlawful activity, the pharmacist voluntarily surrendered his license, and he “admitted himself to an addiction treatment facility.” The pharmacist was charged in federal court with one felony count of “acquiring a controlled substance by misrepresentation, deception, or subterfuge.” He entered a plea of guilty and was sentenced to 3 years of probation. Just over a year later, the probation was terminated.
The state board of pharmacy reinstated the pharmacist’s license, subject to a 3-year supervised probationary period.
The pharmacist received a letter from HHS excluding him from participation in all federally funded health care programs for a period of 7 years. The pharmacist appealed this decision to an HHS appellate board, and the decision was upheld. From this ruling, the pharmacist filed an appeal in federal court.
Rationale
The pharmacist contended that the conduct to which he had pled guilty was not within the scope of the HHS exclusion law because the conduct was not related to theft or fraud.
The court quoted language from the law requiring HHS to exclude:
“Any individual or entity that has been convicted of an offense under federal or state law, in connection with the delivery of a health care item or service or with respect to any act or omission in a health care program operated by or financed in whole or in part by any federal, state, or local government agency, or a criminal offense consisting of a felony relating to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct.”
The pharmacist contended that while he had admitted to conduct involving misrepresentation, deception, and subterfuge, his conduct was not related to fraud or to any other offense listed in the exclusion law.
The court disagreed with the pharmacist. The court concluded that there was “a nexus or common-sense connection between fraud and the pharmacist’s felony conviction.” The court referenced a prior case affirming HHS exclusion of “a pharmacist convicted of theft when he took prescription medication from his employer for his personal use.”
The pharmacist also challenged the length of his exclusion due to what the HHS contended were aggravating factors. The exclusion exceeded the 5-year minimum mandatory length. The court again disagreed with the pharmacist, noting that the time during which opioids had been diverted for self-use by the pharmacist exceeded 1 year and that the voluntary surrender of his pharmacist license was “in effect, a license revocation.” These two factors were considered by the court to be aggravating factors that supported the additional 2 years of exclusion.
The court affirmed the HHS decision to exclude the pharmacist from working at any facility receiving funding from any federal health care program.
Takeaways
A diagnosis of OUD can adversely affect a pharmacist’s reputation. On the other hand, the pharmacy profession has developed recovery networks that provide compassionate support for many pharmacists who suffer from OUD.
Federal law is not so forgiving. Pharmacists who are recovering from OUD will want to put their criminal convictions and their license suspensions behind them and move forward with their careers. Yet they will often discover that they cannot relegate their prior conduct to the past.
Almost every pharmacy receives some sort of funding from federal sources. Federal exclusion is a huge barrier to future employment for a pharmacist who has been convicted of controlled substance violations.
Before entering a guilty plea to a violation of controlled substance laws, pharmacists should discuss the implications of HHS exclusion with their attorneys. ■