Pharmacists are essential to public health, as the COVID pandemic made clear, with pharmacists getting prescriptions and vaccinations to patients despite the possibility of infection. However, to provide essential services and medications to patients, pharmacists must maintain their licenses and ability to fill prescriptions. This is particularly true in South Dakota, which is facing an impending shortage of pharmacists. However, the reality is that some pharmacists face discipline that can lead to the devastating loss of their professional license. The basis for this discipline may be drug or alcohol abuse, criminal charges or convictions, diversion of medications, or something as simple as failing to keep records properly. Whatever the basis, these disciplinary actions are not to be taken lightly and require immediate attention and legal assistance.
If you are a pharmacist in South Dakota facing a challenge with your license, it is crucial to act swiftly. The experienced team at the Lento Law Firm is here to help. With a proven track record in defending the licenses of numerous physicians, pharmacists, and other medical professionals, we are well-equipped to handle your case. The earlier in the process that the Lento Law Firm Professional License Defense Team is involved, the better. Call the Lento Law Firm today at 888-535-3686 or provide your details online, and we will contact you.
Board of Pharmacy Discipline Powers
The South Dakota Board of Pharmacy wields significant authority, handling all licensure issues for pharmacists and pharmacies in the state. Its broad powers to take action against pharmacists make it a formidable entity, underscoring the need for professional legal defense.
Disciplinary Powers of the Board
The SD Board of Pharmacy may take the following disciplinary actions against a pharmacist:
- Revoke a license.
- Suspend a license indefinitely.
- Suspend a license for a definite period.
- Refuse to issue a license.
- Refuse to renew a license.
- Reprimand a Pharmacist
Grounds for the Discipline of a Pharmacist
In South Dakota, the following are grounds for the discipline of a pharmacist:
- The license application contained false or fraudulent information.
- The first ground for discipline is filing a license application with false information.
- The licensee is guilty of a crime involving moral turpitude.
The SD code does not set forth what crimes involve moral turpitude, except for drug crimes. Crimes involving the use or sale of controlled substances will result in disciplinary issues. Contact counsel as quickly as possible if you find yourself with any drug charge. Apart from drug crimes, any felony conviction and many misdemeanor convictions can create license issues. If in doubt, contact an experienced licensed defense attorney.
- The licensee is addicted to the use of alcohol or narcotic drugs to such an extent as to render them unfit to practice pharmacy with reasonable skill and safety.
If you were charged with DUI or some offense based on public drunkenness, consult a professional license attorney as soon as possible.
- The licensee permitted or engaged in the unauthorized sale of controlled drugs.
If you face any controlled substance investigation or charge, contact an experienced licensed defense attorney immediately. This type of allegation will nearly always result in action by the Board.
- The licensee made or filed false records or reports.
Most people find it difficult to believe how often professional license issues are caused by poor record keeping. This is not minor and can present serious licensing issues, especially for those in health professions. In addition to poor record keeping, a licensee can face discipline for any type of false filing or fraud.
- The licensee is incompetent or negligent and has failed to follow professional standards.
If a civil settlement is reported to a national database or a complaint is made by a member of the public, the Board may impose discipline under a failure to comply with professional standards. Allegations of unprofessional conduct may come down to factual disputes. Make sure you are documenting issues properly.
- Failing a drug test by testing positive for a controlled substance.
South Dakota is the only state that bases felony charges on the ingestion of controlled substances. Because of the way South Dakota charges those who test positive for illicit drugs, it is vital to seek a licensed defense attorney if you test positive.
Medicare or Medicaid Fraud
In Nebraska in 2023, a pharmacist faced federal charges for filling name-brand prescriptions with generic replacement drugs without informing patients. This case did not involve allegations of specific harm to patients, but the pharmacist pleaded guilty to a felony count in federal court. The Nebraska Board of Pharmacy suspended her license and barred her from seeking reinstatement for at least two years.
The Nebraska federal court sentenced the pharmacist to two months in prison and three years of probation and ordered restitution of over half a million dollars to US Medicare and over $25,000 to Nebraska Medicaid. The court also imposed a $5,000 civil penalty.
Although this pharmacist had a long history of serving small communities in Nebraska, she still lost her license. South Dakota has a provision similar to Nebraska barring the replacement of name-brand drugs with generic equivalents without the patient's permission. Most seriously, any false billing to Medicare or Medicaid can result in the permanent loss of a pharmacy license. Use great caution when providing information on generic drugs, and never engage in fraudulent filings for reimbursement from Medicare or Medicaid.
Complaint Process
Step One: Investigation
The Board of Pharmacy may initiate an action based on a complaint, criminal charge, or other reason. Prior to deciding whether to begin disciplinary proceedings, the Board may investigate the allegation against a licensee.
Step Two: Notice of a Contested Case
The Board must send a notice of contested action and hearing to the pharmacist in the case. This notice must contain.
- The time and place of the hearing
- The legal authority on which the charge is based.
- A statement of the laws or rules involved.
- A statement of facts as to the licensee violation at issue.
- The action proposed by the Board.
- A summary of due process rights, that these rights are waived if not asserted in a timely way.
- The statement may require the pharmacist to request a hearing before the Officer of Hearing Examiners.
Step Three: Answer
The licensee pharmacist will have the right to file an answer to the complaint. This is an opportunity to present evidence and argue issues of fact and conclusions of law or policy. If there is no genuine issue of fact, the Board may enter an opinion and order before any hearing, referred to as “judgment as a matter of law” in South Dakota rules.
Step Four: Informal Resolution/Settlement Discussions
The Board and the licensee may negotiate and come to an agreement to settle the charges in the complaint. The licensee may negotiate for a lesser charge or penalty than that proposed by the Board. The parties may engage in informal dispute resolution, such as mediation. In other instances, the Board may ask the licensee to sign a Consent Agreement or Consent Order. This Consent Order may involve drug or alcohol treatment or additional training. The pharmacist should consult an experienced attorney before signing any Consent Order or other settlement agreement. Consent Orders involve the loss of appeal and due process rights and should be entered into only with counsel's advice.
Step Four: Hearing
At the Hearing, the licensee pharmacist will present documents and witness testimony defending their license. The hearing officer may enter judgment as a matter of law or may find and dismiss any claim or defense if it is legally insufficient.
A licensee pharmacist may appear in person, through counsel, or both. The licensee or their attorney must be given all evidence prior to the hearing and have the right to examine and cross-examine witnesses.
Step Five: Proposed Findings, Conclusions, and Decision
After hearing all evidence, the hearing officer will write proposed findings of fact and conclusions of law and provide a proposed decision to the Board. The Board may adopt this decision, reject it, or modify it. The licensee may appeal any Board action.
Step Six: Final Order
The Board may adopt the proposed order or change or modify it. The Board may also provide that the proposed order becomes final in a certain period if they take no further action. In either case, the Board will enter a Final Order and must provide notice to the licensee.
Step Seven: Appeal
The licensee may take an appeal of the final order to the Circuit Court by filing a timely Notice of Appeal.
Step Seven: Ongoing Compliance
A disciplinary proceeding may involve certain probationary terms or a suspension pending educational activities or addiction treatment. A licensee may even need to apply for reinstatement of their license. Whatever the terms, you may have questions or need further advice, so representation may be ongoing for a time after disciplinary proceedings. The emphasis should always be on protecting your license and your reputation.
Order of Proceeding
Many medical professionals wonder if a due process hearing will be like a trial. It will look like a trial in many ways, but it will be much more informal. The hearing will take place in a conference room rather than a courtroom, and the hearing officer will not wear a robe. However, the hearing officer will decide what evidence is material and place witnesses under oath. The Board will typically be represented by an attorney or investigator employed by the Board. Typically, this is the order of such a Hearing:
- The hearing officer will welcome and introduce the parties and explain procedures.
- The attorney for the Board will make opening statements outlining the charges against the pharmacist.
- The pharmacist (or their attorney) will make an opening statement, presenting their defenses and version of events. This statement should mirror the answer filed by the pharmacist.
- The attorney for the Board will present evidence and call witnesses.
- The pharmacist (or their attorney) will cross-examine Board witnesses.
- The pharmacist (or their attorney) will present evidence and testimony of their witnesses.
- The attorney for the Board may cross-examine the pharmacist's witnesses.
- The attorney for the Board may rebut any evidence the pharmacist presents.
- Each side may make a closing statement.
Following the hearing, each side will present proposed findings of fact and conclusions of law to the hearing officer. This is typically done in writing.
Why You Should Hire the Lento Law Firm
The Lento Law Firm Professional License Defense Team is made up of some of the country's most experienced licensed defense lawyers. They have represented countless medical professionals, including doctors, pharmacists, and other medical professionals.
The Lento Law Firm can defend your South Dakota Pharmacist license if you work in Sioux Falls, Rapid City, Pierre, or anywhere in South Dakota.
How Does the Lento Law Firm Defend You?
The Lento Law Firm Professional License Defense Team will be with you every step of the way as you defend your pharmacist license and your good name and reputation. The Lento Law Firm will:
- Review the charges and allegations against you and advise you on different courses of action and probable outcomes.
- Draft an Answer to the charges in the Notice.
- Negotiate with the Board and represent your interests by seeking early dismissal of the complaint.
- Guide you through the informal resolution of your charge and advise you as to whether to sign a Consent Order or other settlement of your case.
- Represent you at the Hearing, including opening and closing statements, examination of witnesses, cross-examining agency witnesses, and all other hearing tasks.
- Present arguments of any mitigating factors to reduce any discipline the Board may propose.
- Advise you on appeals of the charges.
- Assist you with any ongoing compliance issues.
If you began this process representing yourself, the Lento Law Firm can still help, but it is imperative to call and secure counsel as quickly as possible. The Lento Law Firm Professional License Defense Team will lead the defense of your license. Call us today at 888-535-3686 or submit your details online, and we will contact you.
