As a working pharmacist, your professional license is the key to your income—and for that reason, it may be your most prized possession. You've paid a high price for that license with 6-8 years of schooling and at least two grueling licensing exams (the NAPLEX and MPJE). You've worked hard for your current success. That's why it can be so devastating when a complaint to the State Board of Pharmacy puts your pharmacist's license in jeopardy. A simple mistake, misunderstanding, or misstep could cause your entire career—not to mention all your hard work—to hang in the balance.
The good news is that you don't have to take this lying down. You have options for defending your professional license, and the more you understand how the disciplinary process works, the better equipped you will be to mount an effective defense. At times like these, one of the most important things you can do is to hire an attorney who has experience with professional license defense cases. Joseph D. Lento has helped many pharmacists and other healthcare professionals who face disciplinary action from their licensing boards in New Jersey. The Lento Law Firm has provided the following information to help you understand what's at stake when your pharmacist's license comes under fire—and what steps you should take when it happens.
What types of offenses can put a pharmacist's license in jeopardy?
Pharmacists are entrusted with the dispensation of medications for patients, and as such, they are held to extremely high standards of excellence in their profession. Most issues that can result in a license being suspended or revoked have to do with violating these principles in some way. Common examples include:
- Incompetence. Accuracy is absolutely critical for a pharmacist. Patients' well-being depends on the pharmacist's ability to provide the right prescription medications at the right dosages. Miscalculating dosages, miscalculating the number of doses, or giving a patient the wrong prescription can all do great harm—so mistakes made in this area can definitely cause a pharmacist's license to be questioned. Other examples of incompetence might include failing to offer proper patient counseling regarding a prescription; failing to detect a doctor's error in prescribing medication; or failing to account for a patient's known allergies or possible interactions with other medications they are taking.
- Fraud. Overcharging patients for medications, substituting cheaper drugs for more expensive ones, billing insurance for brand-name drugs while dispensing the generic version…these are all examples of fraudulent practices for which a pharmacist's license may be suspended or revoked.
- Sloppy record-keeping. Pharmacists are entrusted with controlled substances and are therefore expected to keep accurate inventories. If an audit shows a discrepancy between your inventory and what you've dispensed, it suggests you may be pilfering medications for your own consumption or purposes, and it can endanger your license.
- Criminal convictions. Being convicted of certain crimes can put your pharmacist's license in danger—even if the crime has nothing to do with your profession. (DUI is one example.) You may also lose your license if you fail to report to the board when you've been convicted of a crime.
- Mishandling patient records. Patient privacy is protected by law. For that reason, HIPAA violations can cause the board to suspend or revoke your license.
- Allowing employees to perform tasks beyond their qualifications. Some pharmacists make the mistake of allowing their technicians or cashiers to do things with medications that they aren't licensed to do. Aside from the fact that any mistakes would be attributed to you, allowing unqualified people to do these tasks can put your license at risk.
Am I guaranteed to lose my pharmacist's license for these or other violations?
No. Depending on the circumstances, the Board of Pharmacy in your state may opt to invoke other sanctions besides revoking your pharmacist's license. Some examples:
- Suspending your license. You are prohibited from pharmacy work for a specified length of time pending review.
- Fines. The board may require you to pay a fine (also known as a “civil penalty”).
- Restitution. If your mistake or misconduct caused someone to incur a loss, the board might require you to cover the damages.
- Continuing education requirement. If the board deems that the violation occurred due to a gap in your education, it may require you to take continuing education courses as a requisite for keeping your license.
- Treatment program requirement. For issues like substance abuse (for drug/alcohol offenses), the board may mandate that you go through a treatment program as a requirement for keeping your license.
- Reprimand/censure. The board may issue a public reprimand or censure that appears on your public record.
An important point of note: Even sanctions that don't result in a loss of your license can have dramatically negative results for your career as a pharmacist because they show up on your public record. When potential employers or customers view these records and see that you were disciplined, it can harm your credibility or prevent you from being hired.
What does the disciplinary process for pharmacists look like?
Each state has a different process by which its Board of Pharmacy conducts discipline, including suspending or revoking a pharmacist's license. Generally speaking, however, the disciplinary process follows a similar path. Here's an example of what it might look like for you.
The Complaint
Any disciplinary investigation begins with a formal complaint against you alleging some sort of misconduct. This complaint can come from a patient/customer, a colleague, an employer, an insurance provider, or another interested party. The Board of Pharmacy is required to investigate any and all valid complaints against licensed pharmacists in their state.
Review of the Complaint
The Board of Pharmacy will review the complaint to verify that it falls within their jurisdiction and merits further investigation.
Investigation
Once the complaint has been reviewed and verified, the board will launch an investigation to see whether the complaint has merit. This process may last for months and may include an audit of your practice, a subpoena of records, and a request from you to respond in writing to the complaint. If the investigation turns up little evidence to validate the complaint, the board may close the matter at this point—or it may opt to move forward.
Option for Consent Order
If the Board of Pharmacy finds ample evidence of a violation, it may offer you the option of negotiating a Consent Order as an alternative to a formal hearing. A Consent Order is a legally binding agreement between you, the Board of Pharmacy, and the state in which you agree to submit to a prescribed course of disciplinary action. In many cases, you may be able to negotiate to keep your license active through this process, but even if the sanction involves suspension or revocation of your license, a Consent Order may be preferable to going through a formal hearing—especially if the evidence against you is significant, and especially if you hope to have your license reinstated at some point.
Hearing
If the board decides to move forward, it will call a formal hearing in which you will appear and answer to the complaints against you, either in front of the board or in front of an Administrative Law Judge. Both sides may have legal representation to argue the case.
Board action. At the conclusion of the hearing, if the board finds that you have committed a violation of your pharmacist licensure, it will then make a determination and impose one or more sanctions against you—ranging from a formal reprimand all the way to having your license suspended or revoked.
Appeal. You have the right to appeal any adverse decision of the board to the appellate courts for your state. Appeals courts will only review the case for procedural errors and rarely overturn the board's decision.
Bear in mind that at almost any point in this process, the board has the option of dismissing or resolving the complaint without having to go into a formal hearing or imposing sanctions. This is where it is beneficial to have an experienced professional license attorney in your corner. In many cases, a good attorney can act early in the process to mitigate the penalties and keep your license intact—or by providing sound evidence in your defense, to have the complaint dismissed.
Why do I need an attorney if the Board of Pharmacy is investigating me?
Many pharmacists make the mistake of trying to act in their own defense when their license is under investigation. They naively assume the board will listen to them and side with them if they just “explain what happened”—especially if the complaint stems from a simple misunderstanding. The problem with this thinking is that the Board of Pharmacy's goal is to protect the public from bad actors. In other words, the board is not on the side of the pharmacist. Thus, saying or doing the wrong thing in an investigation can actually work against you.
Here's why it's advisable to hire an attorney to defend your pharmacist's license, rather than trying to handle it yourself.
- The Board of Pharmacy understands its own disciplinary process better than you do. This immediately puts you at a disadvantage when your license is in question.
- A complaint against a pharmacist constitutes a legal matter, not just a professional one. Your pharmacist's license constitutes a legal agreement with the state to abide by the rules of that state—so by definition, a violation of the rules constitutes a broken legal agreement, subject to legal remedies. Since you likely haven't studied law, you're better off in the hands of a lawyer in that situation.
Bottom line: When your pharmacist's license is challenged, you're in a legal battle—and therefore, your best approach is to hire an attorney to represent your interests. Doing so greatly improves your chances of a more favorable outcome.
This complaint is due to a simple misunderstanding. Why can't I just resolve it informally with the board?
Remember, the Board of Pharmacy is not there to protect you, but the public. The board is there to regulate you. And once a formal complaint has been filed against you, the board's job is to investigate that claim to the fullest extent—to scrutinize your actions to be certain you aren't endangering public safety. At this point, any attempt to “explain the situation” could backfire because they are technically looking for evidence against you. For this reason, it's in your better interests never to respond to a complaint without the advice of an attorney.
Do I have to respond to the complaint or cooperate with the investigation? What happens if I don't?
You are expected to cooperate with any investigation by the State Board of Pharmacy. In the eyes of the board, failing to respond to the complaint is essentially treated as an admission of guilt. If you choose to ignore the complaint completely or refuse to cooperate, the board may rule summarily against you and impose the most severe penalty applicable—which is most likely a suspension or revocation of your license. Thus, a cooperative approach is the best possible path to keeping your license intact.
Will hiring an attorney make me appear defensive to the board?
No. State licensing boards deal with attorneys all the time, and since a license investigation is technically a legal matter, they anticipate interacting with your attorney. Hiring a lawyer doesn't make you look defensive or suggest to the board that you are guilty of the claim; rather, it suggests that you take the claim seriously.
What kind of attorney should I hire?
Any duly licensed attorney is legally allowed to represent you in a professional license investigation—but not every attorney is suited for this type of case. Different lawyers have different areas of concentration, and if a certain attorney has no experience in administrative law or professional license cases, he/she probably won't be a good fit. For your best chances of success, you should look for an attorney with specific knowledge and experience in license defense—someone who has argued negotiated in front of licensing boards, preferably with a track record of success.
How can a professional license attorney help me?
A good professional license attorney can greatly improve your chances of a positive or more lenient outcome of the investigation. Your attorney will perform a case evaluation, conduct a separate investigation, review the facts, evaluate the validity of the complaint, gather evidence in your defense, and give you the best advice for how to move forward and how to respond. A good attorney will also be able to negotiate with the board for the best possible terms, and if the matter proceeds to a hearing, defend you aggressively, if needed.
Am I required to allow an investigator from the Board of Pharmacy to enter my home or place of business? Am I required to answer his/her questions?
No to both questions. If an investigator shows up unannounced, you do not have to allow them to enter, and you don't have to answer any questions at that time. In fact, we highly discourage it. While you're expected to cooperate with an investigation in general, this tactic is sometimes used to throw the pharmacist off their guard and cause them to say or do something that can be used against them. If an investigator approaches you, politely ask for their information and let them know your attorney will contact them—and end the conversation.
Can I continue to work as a pharmacist while I'm under investigation?
With severe allegations, the Board of Pharmacy may issue an emergency injunction that temporarily suspends your license and prohibits you from working. However, if the board does not do this, you are allowed to continue working as a pharmacist until the board states otherwise. Remember, there are many possible outcomes to an investigation, and in many cases, your license will not be suspended or revoked.
Do I have to disclose to my employer or my customers that I am under investigation?
In most cases, you won't have a requirement to disclose to your customers/patients that you're under investigation—nor is there a mandate from the board to disclose this information to employers. However, some pharmacies and healthcare facilities have company policies in place that require you to let them know of any formal complaints or investigations against you. Consult your employer's documentation to find out their policies, and if in doubt, ask your attorney.
How soon should I hire an attorney once I'm notified of a complaint?
Ultimately, the sooner, the better. Some pharmacists mistakenly assume they don't need to hire an attorney unless the matter goes to a formal hearing. Unfortunately, by that point, the board already has ample reason to believe you have violated the terms of your license, so you're starting the process on a defensive footing. Hiring an attorney early on allows the attorney to get involved even during the investigation stage, not only to help determine an effective defense strategy but also to negotiate for a more lenient outcome, possibly avoiding the hearing stage altogether. The sooner you get an attorney involved, the better your chances of an outcome that minimizes the penalties and allows you to keep your license.
As a pharmacist, your entire career hinges on the status of your license, which means allegations of wrongdoing can put your professional future in jeopardy. “Going it alone” is effectively gambling with your future. Hiring legal counsel now can save your career later.
Attorney Joseph D. Lento has a track record of success in professional license cases, and he has helped many pharmacists navigate the complex disciplinary process to achieve better outcomes and save their licenses. Don't take chances with your career. Contact the Lento Law Firm at (888) 535-3686 today to discuss your case and explore your options.
