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GIRARD PRESCRIPTION CENTER AND GOLD-BRICK COMPANIES v. COMMONWEALTH PENNSYLVANIA (07/19/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 19, 1985.

GIRARD PRESCRIPTION CENTER AND GOLD-BRICK COMPANIES, INC., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT

Appeal from the Order of the Department of Public Welfare in case of Appeal of: Girard Prescription Center and Gold-Brick Companies, Inc., File No. 22-82-7.

COUNSEL

James C. Schwartzman, with him, Michael B. L. Hepps, Schwartzman & Hepps, for petitioners.

Bruce G. Baron, Assistant Counsel, for respondent.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 90 Pa. Commw. Page 489]

The petitioner, Girard Prescription Center, Inc. (Girard) is a provider-pharmacy under the Medical Assistance Program and is owned entirely by the

[ 90 Pa. Commw. Page 490]

    petitioner, Gold-Brick Companies, Inc. The petitioners appeal the order of the Hearings and Appeals Unit of the Department of Public Welfare (DPW), sustaining DPW's proposed suspension of Girard from participation in the Medical Assistance Program for a period of two years.*fn1

On September 2, 1982, DPW notified the petitioners that it was suspending them as a provider pharmacy in the Medical Assistance Program for a period of two years. On March 28, 1984, a hearing attorney for DPW issued an adjudication in which he found that on three separate occasions an employee of Girard, who was not a licensed pharmacist nor a pharmacy intern, filled, packaged, sold and dispensed prescriptions out of the presence of and not under the direct, immediate supervision of a licensed pharmacist. In each instance, undercover agents for the Board, posing as medical assistance recipients, made the purchases which Girard later billed to DPW.

On appeal to this Court, the petitioners contend that:

1) the specific grounds upon which DPW issued the Basis for Termination are not, as a matter of law, violations upon which DPW has authority to terminate or suspend a provider agreement;

2) the words "immediate personal supervision" found in Section 8(2), of the Pharmacy Act,*fn2 are unconstitutionally vague;

[ 90 Pa. Commw. Page 4913]

) suspension of a pharmacy from the Medical Assistance Program for violating section 8(2), 63 P.S. § 390-8(2), requires a finding of mens rea on the part of the owners of the pharmacy; and

4) the penalty of two years suspension from the Medical Assistance Program is unduly harsh and is not supported by substantial evidence.

DPW may impose sanctions, including the suspension or termination of the provider agreement, if the pharmacy has provided services outside the scope of the customary standards of pharmaceutical practice. Section 1121.81(a) of 55 Pa. Code provides:

Provider misutilization:

A provider determined to have billed for services inconsistent with Medical Assistance Program regulations, to have provided services outside the scope of customary standards of pharmaceutical practice, or to have otherwise violated the standards in the provider agreement, is subject to the sanctions described in Chapter 1101*fn3 (relating to general provisions).

DPW argues that when Girard permitted one of its unlicensed and untrained employees to practice pharmacy, Girard's conduct went prohibitively beyond the customary standards of pharmaceutical practice. We agree.

Section 8(2) of the Pharmacy Act, 63 P.S. § 390(8)(2) prohibits:

     any person not duly licensed as a pharmacist, pursuant to section 3 hereof, to engage in the

[ 90 Pa. Commw. Page 492]

    practice of pharmacy, including the preparing, compounding, dispensing, selling or distributing at retail to any person any drug, except a pharmacy intern under the immediate personal supervision of a pharmacist. . . .

Furthermore, 49 Pa. Code § 27.12*fn4 sets forth in detail the respective duties of pharmacists, pharmacy interns

[ 90 Pa. Commw. Page 493]

    and "authorized personnel" of a pharmacist. This latter section, coupled with section 8(2) of the Pharmacy Act, creates a clear standard of pharmaceutical practice which, if violated, would be a basis for DPW to impose sanctions. The petitioners do not contest the hearing attorney's findings that an unlicensed employee of Girard, who was not a pharmacy intern, under the direct supervision of a registered pharmacist, filled and dispensed prescriptions. Therefore, we hold that such conduct was in violation of the customary standard of pharmaceutical practice and sanctionable by DPW.

The petitioners next contend that the requirement of section 8(2) of the Pharmacy Act, that the pharmacy intern be under the "immediate personal supervision" of a pharmacist when dispensing prescriptions, denies them due process because the term "immediate personal supervision" is unconstitutionally vague. The petitioners' argument is misguided. While section 8(2) of the Pharmacy Act does permit a pharmacy intern under the immediate personal supervision of a licensed pharmacist to practice pharmacy, there is no evidence in the record, nor do the petitioners assert, that the Girard employee who practiced pharmacy was actually a pharmacy intern. On the contrary, the hearing attorney found that Girard's employee was not an intern but an unlicensed pharmacist's assistant. Consequently, we need not address the petitioners' constitutional challenge to the term "immediate personal supervision."

[ 90 Pa. Commw. Page 494]

The petitioners next argue that DPW may not terminate a pharmacy's provider agreement for acts of an employee not in the knowledge of the pharmacy's owners. Section 1121.81 of 55 Pa. Code permits DPW to impose sanctions on a provider pharmacy which has provided services outside the scope of customary pharmacy practice. There is no element of scienter included in the regulation and we will decline from engrafting one where none is required by law. A provider pharmacy can only provide services through the actions of its employees. It is reasonable then, for DPW to hold the provider pharmacy accountable for the services it provides to DPW recipients.

The petitioners' last contention is that the two-year suspension of petitioner Girard from the Medical Assistance Program is unduly harsh. The imposition of sanctions by DPW on a provider pharmacy is left largely to the discretion of DPW.*fn5 This court may not disturb the exercise of that discretion absent proof of fraud, bad faith or manifest and flagrant abuse of discretion. Nolf v. Department of Public Welfare, 69 Pa. Commonwealth Ct. 398, 452 A.2d 574 (1982). Here, where DPW had the authority pursuant to 55 Pa. Code § 1101.77(a)(1), to terminate Girard's provider agreement permanently, and no fraud or bad faith has been alleged, the imposition of a two-year suspension of Girard's provider agreement was not an abuse of discretion.

Accordingly, we affirm.

[ 90 Pa. Commw. Page 495]

Order

The order of the Department of Public Welfare, dated March 26, 1984, File No. 22-82-7, affirming the suspension of Girard Prescription Center, Inc. from the Medical Assistance Program for a period of two years is affirmed.

Disposition

Affirmed.


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