The Issue The issue for determination is whether Petitioner must reimburse Respondent an amount up to $1,676,390.45, which sum Petitioner received from the Florida Medicaid Program in payment of claims arising from Petitioner's dispensing of pharmaceuticals between July 3, 2000 and March 28, 2002. Respondent alleges that the amount in controversy represents an overpayment related to Petitioner's failure to demonstrate the availability of sufficient quantities of drugs to support its billings to the Medicaid program.
Findings Of Fact Respondent Agency for Health Care Administration ("AHCA" or the "Agency") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). Petitioner Disney Medical Equipment, Inc., d/b/a Disney Pharmacy Discount ("Disney Pharmacy"), was, at all relevant times, a Medicaid provider authorized, pursuant to contracts it had entered into with the Agency known as Provider Agreements, to receive reimbursement for covered services rendered to Medicaid beneficiaries. Exercising its statutory authority to oversee the integrity of Medicaid, the Agency directed its agent, Heritage Information Systems, Inc. ("Heritage"), to conduct an audit of Disney Pharmacy's records to verify that claims paid by Medicaid during the period from July 3, 2000 to March 28, 2002 (the "Audit Period") had not exceeded authorized amounts. Over the course of four days in May 2002, three of Heritage's auditors reviewed records on-site at Disney Pharmacy's drugstore in Hialeah, Florida; they also interviewed some of the store's personnel. Thereafter, Heritage analyzed the data it had collected using several different approaches. Each approach pointed to the conclusion that Medicaid had paid too much on claims submitted by Disney Pharmacy during the Audit Period. The total amount of the alleged overpayment differed substantially, however, depending on the analytical approach taken. The approach that yielded the largest apparent overpayment was the "prorated purchase invoice" analysis. Generally speaking, under this approach, the volume of pharmaceuticals that the provider maintained in its inventory during the Audit Period is compared to the provider's contemporaneous Medicaid claims to determine whether the provider possessed enough of the relevant pharmaceuticals to support the Medicaid claims presented. If the total amount purportedly dispensed, according to the claims made in connection with a particular drug, exceeds the amount of that drug available at the time for dispensing, then an inference of impropriety arises with regard to those claims for which product was apparently unavailable; the Agency considers amounts paid on such claims to be overpayments. To determine the quantities of certain drugs that Disney Pharmacy had kept on hand during the Audit Period, Heritage tallied up the total number of "units" of selected drugs that Disney Pharmacy had acquired, using as a database the invoices reflecting Disney Pharmacy's purchases of the drugs under review. Heritage then ascertained——again using Disney Pharmacy's records——the utilization rate of Medicaid beneficiaries for each of the pharmaceuticals under consideration. In other words, Heritage determined, for each drug at issue, the relative demand——expressed as a percentage of the total number of units of that drug dispensed to all customers during the Audit Period——attributable to Medicaid beneficiaries. Heritage found, for example, that Medicaid recipients accounted for 55.13% of Disney Pharmacy's total sales of the drug Acetylcysteine-10% solution ("Acetylcysteine") during the Audit Period. Having calculated the total amount of each drug at issue that Disney Pharmacy had acquired during the Audit Period, and having further determined for each such drug the Medicaid utilization rate, Heritage multiplied the total number of available units of each drug by the applicable utilization rate, prorating the entire supply of each drug to reflect the approximate number of units available for dispensing to Medicaid recipients specifically. For example, Disney Pharmacy's records showed that it had purchased a total of 121,440 units of Acetylcysteine during the Audit Period. Disney Pharmacy's records showed, additionally, that this drug was dispensed to Medicaid beneficiaries 55.13% of the time. Thus, the prorated quantity of Acetylcysteine available for Medicaid recipients was approximately 66,950 units (121,440 x 0.5513). The prorated number of available units of each subject drug was compared to the total number of units for which Medicaid had reimbursed Disney Pharmacy during the Audit Period. For Acetylcysteine, these figures were 66,950 and 1,076,070, respectively. If the total number of units for which Medicaid had paid on claims for a particular drug were found to exceed the amount of that drug which Disney Pharmacy apparently had on hand——as it did for Acetylcysteine——then the inventory shortfall——1,009,120 units in the case of Acetylcysteine——was multiplied by the drug's average per-unit cost to Medicaid, producing a drug-specific apparent overcharge. Thus, for example, because the average cost of Acetylcysteine was $0.65 per unit, the apparent overcharge with respect to this drug was $655,928.00. Using the foregoing approach, Heritage identified apparent overcharges in connection with 13 drugs. The sum of these drug-specific overcharges is $1,676,390.45. Two drugs—— Acetylcysteine and Ipratropium Solution ("Ipratropium")——account for nearly 93% of this grand total. Two other drugs——Albuterol- 0.83% ("Albuterol") and Metaproterenol-0.4% ("Metaproterenol")—— account for another 7.0% of the total alleged overcharge. These four drugs——whose individual overcharges, taken together, comprise approximately 99.8% of the total alleged overcharge of $1,676,390.45——are used for treating breathing disorders and typically are inhaled by the patients who use them.i There is no genuine dispute regarding the reason why Disney Pharmacy was unable to document its acquisition of Acetylcysteine, Ipratropium, Albuterol, and Metaproterenol (collectively the "Inhalation Therapy Drugs") in quantities sufficient to support its claims to Medicaid for these pharmaceuticals. During the Audit Period, Disney Pharmacy generally filled prescriptions for the Inhalation Therapy Drugs by "compounding" the prescribed medications. (Compounding is a process whereby the pharmacist mixes or combines ingredients to fashion a tailor-made medication for the patient.) Thus, Disney Pharmacy (for the most part) did not purchase the commercially available versions of the Inhalation Therapy Drugs; rather, it created its own "generic copies" of these medications, purchasing only the raw materials needed to make finished products. Medicaid reimburses for compound drugs under certain conditions, which will be spelled out below. But first: it is undisputed that Disney Pharmacy did not submit claims for compound drugs. Instead, in presenting claims to Medicaid for the Inhalation Therapy Drugs, Disney Pharmacy billed the medications under their respective National Drug Code ("NDC") numbers, as though commercially manufactured drug products had been dispensed. (An NDC is an 11-digit number, unique to each commercially available pharmaceutical, which identifies the manufacturer, product, and package size.) As a result, Medicaid paid Disney Pharmacy for mass produced products when, in fact, the pharmacy actually had dispensed its own homemade copies thereof. According to the Prescribed Drug Coverage, Limitations and Reimbursement Handbook ("Medicaid Handbook"), which authoritatively sets forth the terms and conditions under which Medicaid reimburses providers for dispensing pharmaceuticals, Medicaid may pay for a compound drug if the following criteria are met: At least one pharmaceutical is a reimbursable legend drug; The finished product is not otherwise commercially available; and The finished product is being prepared to treat a specific recipient's condition. Medicaid Handbook at 9-16.ii To present a claim for a compound drug, the provider must adhere to the following instructions: Compound drug codes must be submitted on paper Pharmacy 061 claim forms, because they are reviewed and manually priced by Medicaid. When billing for a compound drug, enter one of the following compound drug codes. More than one code is available so that more than one compound can be dispensed to a recipient on the same day without using the same number. Id. 55555-5555-55 66666-6666-66 77777-7777-77 88888-8888-88 Disney Pharmacy attempts to defend its failure to follow the unambiguous instructions for billing compound drugs by explaining that, before commencing the practice of compounding, the provider's owner, Sara Padron, made a telephone call to AHCA to ask for guidance on submitting claims for drugs created on-site. Ms. Padron testified at hearing that the AHCA employee with whom she spoke had told her to present claims for compound drugs by billing for the manufactured products that they most resembled, using the manufactured products' NDC numbers. Ms. Padron could not identify the person who purportedly gave her this plainly incorrect advice. Ms. Padron's testimony in this regard was not contradicted——although in fairness to the Agency hers was the kind of testimony that resists direct evidential challenge, forcing an opponent to stress the implausibility of the claim as a means of discrediting it. Ms. Padron's account cannot simply be dismissed as incredible, for an AHCA employee undoubtedly could give an incorrect answer to a provider's question. But even assuming that Ms. Padron reached a person whom one reasonably could suppose to be knowledgeable about Medicaid billing procedures, and further assuming Ms. Padron asked a clear question which fairly and accurately described the situation, neither of which was proved or should be taken for granted, the undersigned remains skeptical that Ms. Padron was instructed to bill for compound drugs as if billing for their commercially available counterparts: the advice is just too obviously wrong. It is not necessary, however, to accept or reject Ms. Padron's testimony concerning the "official" answer she says she received because even if Ms. Padron were told to bill for compound drugs as though manufactured products had been dispensed, no reasonable provider could have relied upon such a dubious oral representation. The statement, for starters, is an invitation to commit fraud. Common sense should inform any reasonable provider that a claim for something other than what was actually delivered will, if discovered, almost certainly be viewed as deceptive (or worse) by the payor. Additionally, the alleged statement attributed to AHCA's employee contradicts the plain instructions in the Medicaid Handbook on that very subject. No provider can reasonably rely upon verbal advice, given anonymously (or functionally so, since the advisor's name, if given, was evidently easily forgotten) over the telephone, which contravenes the clear language of the Medicaid Handbook. Disney Pharmacy's other defenses are likewise unpersuasive. Disney Pharmacy maintains that compounding the drugs in question substantially benefited the patients who received them, which is probably true——but certainly beside the point. The problem here is not with the practice of compounding per se; the problem is that Disney Pharmacy sought and received reimbursement from Medicaid for mass produced, commercially available drugs that had not actually been dispensed. For the same reason, it is irrelevant, even if likely true, that the Board of Pharmacy, which periodically inspects Disney Pharmacy, never objected to the compounding that was occurring at the premises. Again, to be clear, the problem is not that the compounding was improper, but that the Medicaid billing was improper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Disney Pharmacy to repay the Agency the principal amount of $1,676,390.45. DONE AND ENTERED this 11th day of April, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2006.
The Issue Whether disciplinary action should be taken against the license of the Respondent, Roger Allen Bowers, to practice pharmacy in, the State of Florida.
Findings Of Fact The Respondent, Roger Allen Bowers, a registered pharmacist in the State of Florida, practiced pharmacy and was the manager of the prescription department at Scotty Discount Drugs at 3620 Blanding Boulevard in Jacksonville, Florida, during the period of time from May 1, 1978, to February 10, 1979. On February 28, 1979, a Complaint and Notice to Show Cause was issued by the Petitioner Board charging Respondent with violation of Sections 465.101(1)(e) and 893.07, Florida Statutes, for permitting improper maintenance of records in that he failed to keep "on a current basis a complete and accurate record of each controlled substance, controlled by Chapter 893, Florida Statutes," at said community pharmacy. Respondent Bowers requested an administrative hearing. Mary Haddad, a pharmacist licensed in the State of Florida and employed at Scotty Discount Drugs during January, February and March of 1979, noticed that large quantities of Percocet-5 were being ordered by Respondent Bowers. Ms. Haddad felt such an order was unusual, inasmuch as she did not fill any prescriptions for this medication during her first month of employment. She checked the pharmacy Schedule II files for a one-month period and found approximately three (3) prescriptions for Percocet-5 during that period. She noticed, however, that numerous narcotic forms were signed by Respondent reordering this medication. Ms. Haddad noted on February 9, 1979, that there was one 500 stock bottle of Percocet-5 on the shelf which was about three- quarters full. She reported her findings to Owen Scott, a supervisor for Scotty Discount Drugs. Mr. Scott considered the communication from Ms. Haddad and called David Hodge, an agent for Petitioner Board, and requested an immediate audit of the pharmacy. After Mr. Hodge's report was filed with Mr. Owen, Mr. Owen terminated Respondent from the employ of Scotty Discount Drugs. David L. Hodge, the inspector-investigator for the Petitioner Board, audited the pharmacy for a period of approximately nine (9) months previous to February, 1979. The audit showed that during the said nine (9) months' period there was a shortage of 17,628 Percocet-5 tablets, 4,097 Percodan tablets, 609 Dilaudid 4 mg. tablets, and 610 Dilaudid 2 mg. tablets. The audit was introduced into evidence without objection. Mr. Hodge made copies of all the order forms for the said nine (9) months' period at Lawrence Pharmaceuticals which had been sent to said firm and were signed by Respondent Bowers. These copies were introduced into evidence without objection. The Respondent properly filled out the forms, signed them, and properly filed the forms on which the narcotics were ordered. He properly filed the prescriptions that were filled. No explanation was given for the discrepancy between the large amount of narcotics ordered by Respondent as the manager of the pharmacy and the small number of prescriptions filled for these narcotics and the absence of these narcotics in the pharmacy at the time of the audit by Mr. Hodge. There were seven (7) licensed pharmacists employed by the pharmacy managed by Respondent. The store in which the pharmacy was located remained locked until unlocked by an employee, and the pharmacy remained locked. Several people had keys to the store, and the licensed pharmacists had keys to the pharmacy. There was a spare key to the pharmacy within the store in the store manager's office under a ledge by a small door next to the pharmacy. The assistant manager of the store, an unlicensed person, knew the location of this key, as perhaps did other people, inasmuch as it was left on the ledge when not in use. Petitioner submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the license of the Respondent, Roger Allen Bowers, be revoked. DONE and ORDERED this 12th day of October, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Michael I. Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 William J. Sheppard, Esquire 215 Washington Street Jacksonville, Florida 32202 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Petitioner should be granted a Retail Pharmacy Drug Wholesale Distribution Permit, pursuant to Subsection 499.01(2)(f), Florida Statutes (2009).1
Findings Of Fact Background Petitioner holds Florida Community Pharmacy License No. PH23699 (the “pharmacy license”), pursuant to Chapter 499, Florida Statutes. The establishment is located at 1507 Park Center Drive, Suite 1L, Orlando, Florida 32835 (“establishment”), where Petitioner’s records are stored. On or about July 29, 2009, Petitioner submitted the first portions an application to Respondent for a Retail Pharmacy Wholesaler Distributor Permit, pursuant to Subsection 499.01(2)(f), Florida Statutes (“application”). On September 16, 2009, Respondent's drug agents conducted an onsite inspection of the establishment (“inspection”) for purposes of assisting in Respondent’s determination of whether to issue the permit to Petitioner. On or about November 13, 2009, Respondent notified Petitioner that Respondent intended to deny the application (“notice”), and Petitioner filed a petition for administrative review, raising disputes of material fact (“petition”). Prescription Drug Inventory and Petition as a “Retail Pharmacy” To qualify as a retail pharmacy, Petitioner must have adequate inventory on hand that would be required by the general public for a variety of medical conditions. On the date of inspection, there was inadequate inventory on hand. There were only 18 commercially-available prescription drugs. Many of the drugs were injectables, which would only fill the needs of a very specific and limited patient population. At the time of inspection, Petitioner’s on-hand inventory of prescription drugs lacked any opiate painkillers and any drugs indicated for treatment or maintenance of (i) high blood cholesterol levels, (ii) systemic bacterial infections (oral antibiotics), (iii) osteoporosis, (iv) cough (syrups), (v) viral infections, (vi) depression, and (vii) asthma. These are some of the most commonly-required drugs in the pharmacological arsenal. Petitioner’s specialization in the area of compounded prescription drugs is evidenced by Petitioner’s prescription drug inventory and the nature of the prescriptions Petitioner filled in the months leading up to inspection. Most of Petitioner’s on-hand prescription drug inventory was composed of compounded prescription drugs or ingredients to be used in compounding prescription drugs. Less than eight percent of Petitioner's prescription drugs, or about 18 items, consisted of commercially-available prescription drugs in finished dosage forms. In the two-month period before September 29, 2009, Petitioner did not dispense a single dose of commercially- available, finished-form prescription drugs. All were specially-prepared or “compounded” products tailored to the specific needs of individual patients. Petitioner, as a result of an inability to meet the most basic and commonplace prescription drug needs of the general public, lacked adequate inventory required by the general public. Petitioner served a specific and limited patient population: i.e., those patients requiring specially-compounded prescription drugs and those rare patients whose needs could not be met by commercially-available products. Petitioner's explanation as to the reason for having only 18 commercially-available prescription drugs available at the time of inspection is not persuasive; Petitioner, therefore, was not a retail pharmacy. Life Specialty Pharmacy Medical Equipment and Supplies, Inc.: Petitioner’s Unauthorized Source for Prescription Drugs Life Specialty Pharmacy Medical Equipment and Supplies, Inc. (“Life Specialty”), a separate entity from Petitioner, is under common control with Petitioner. It has the same owners, principals, and pharmacy department manager. Life Specialty holds Community and Special Parenteral/Enteral Pharmacy License No. PH22346 for an establishment located at 1507 Park Center Drive, Suite 1L, Orlando, Florida 32835. It is not authorized under Florida law to purchase, receive, own, or distribute prescription drugs. Petitioner’s prescription drug inventory at the time of inspection included certain quantities of Sarapin, a prescription drug. Life Specialty acquired and received Sarapin from a Kmart pharmacy that is no longer in business. At the time Life Specialty acquired and received the Sarapin from Kmart pharmacy, that drug was readily available from Life Specialty’s prescription drug wholesale suppliers. Life Specialty later transferred the Sarapin to Petitioner. Life Specialty lacks any permit or authorization under Part I of the Florida Drug and Cosmetic Act, Chapter 499, Florida Statutes (Act), to engage in the wholesale distribution of prescription drugs. Petitioner, nevertheless, received prescription drugs from Life Specialty, and many of these drugs were in Petitioner’s prescription drug inventory at the time of inspection, including prescription drugs compounded by Life Specialty. Those drugs included: Sarapin Ketamine Hydrochorlide USP Progesterone Micro USP Chloral Hydrate (CIV), Crystal USP 100% 125gm Testosterone Propionate Micro USP Ketamine Hydrochloride USP 100% Powder 25mg Amphotericin B USP 100% Powder 1gm Cyclobenzaprine HCl USP Recordkeeping and Pedigree Papers During the course of the inspection, Respondent requested the opportunity to review pedigree papers and other source-related records for the prescription drugs Petitioner received from Life Specialty. Specifically, Petitioner could not produce any pedigree papers for prescription drugs received from Life Specialty. Petitioner received from Life Specialty, without a valid pedigree paper, the following: Sarapin Ketamine Hydrochorlide USP Progesterone Micro USP Testosterone Propionate Micro USP Cyclobenzaprine HCl USP Recordkeeping Petitioner did not acquire all of its pedigree papers contemporaneously with the underlying transactions. Petitioner acquired many of the pedigree papers for the prescription drugs in its inventory after the Respondent's inspection. Petitioner's explanation for these failures was not credible.
Recommendation Based on the Findings of Facts and the Conclusion of Law cited above, it is RECOMMENDED that the Department of Health enter a final order, denying Petitioner's application for a permit to act as a retail pharmacy drug wholesale distributor. DONE AND ENTERED this 1st day of September, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2010.
Findings Of Fact At all times pertinent to the proceeding, Respondent held a license to practice medicine in the State of Florida issued by the Board of Medical Examiners, Department of Professional Regulation. Brief descriptions of the scheduled controlled substances at issue here are as follows: Quaalude is the manufacturer's brand name for methaqualone which is now a Schedule 1 controlled substance pursuant to 1983 Florida legislation. Prior to July 1, 1983, it was a Schedule II controlled substance. Methaqualone is a hypnotic agent useful in bringing on sleep. It is an addictive drug, with psychological and physical dependence associated with its use. The usual adult dosage of methaqualone is 150 to 360 mg. at bedtime. It is a soporific which is for short term use in treating insomnia with a stated maximum prescribing time of 2 to 3 weeks. After that approximate period, it is stated to be ineffective as a sleeping medication. Tuinal is a combination of secobarbital and amobarbital which is useful when prompt and moderately sustained hypnotic effect is required (sedation). Its use may result in psychic and physical dependence. The usual adult dosage is 50 to 200 mg. at bedtime. As in any other central nervous system depressant, tuinal's effect may be addictive. Demerol is merperidine which is a narcotic analgesic with multiple actions qualitatively similar to those of morphine. It is an opiate characterized by increasing tolerance and physical dependence. Dilaudid is hydromorphone and has the same pharmacological aspects as other opiates, including demerol. Dexedrine is a dextro-amphetamine, which is a central nervous system stimulant, a substance that is often abused and can lead to drug dependence. Under Section 458.331(1)(cc), F.S., the prescribing, ordering, dispensing, administering, supplying, selling or giving of any drug which is an amphetamine or sympathomimetic amine drug designated as a Schedule II controlled substance pursuant to Chapter 893, F.S., except for the treatment of narcolepsy and hyperkinesis, and several other diagnoses specifically listed in that statutory provision, became illegal in 1980, and is a basis for disciplinary action by the Board of Medical Examiners. Percodan is oxycodone and has the same pharmacological aspects as other opiates, including demerol and dilaudid. Preludin is phenmetrazine and is a sympathomimetic amine with pharmacologic activity similar to amphetamines such as dexadrine, described above. The above listed drugs are Schedule II controlled substances pursuant to Chapter 893, F.S., which classifies any such drug as a substance which has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psy- chological or physical dependence. . . Section 893.03(2), Florida Statutes. Between the dates of July 8, 1980, and December 18, 1981, Respondent prescribed for Clara Shires 1,900 tablets of quaaludes, 1,500 tablets of tuinal, 1,700 tablets of demerol, 1,750 tablets of dexedrine and 410 tablets of dilaudid. The prescription history relates that as to the prescriptions for quaalude and tuinal, the majority of the prescriptions were for 100 tablets each, with both drugs being prescribed the same day for the same amounts, and both prescriptions specifically directing the patient to take one tablet at bedtime. Each of the prescriptions for quaalude and tuinal were written, however, at intervals of approximately 30 - 45 days, sometimes at even more frequent intervals, for the same amounts. During this period, Respondent also prescribed dexedrine to be taken one in the morning, again with the prescriptions written for 100 tablets, and again issued at intervals substantially less than each 100 days, some prescriptions issued more frequently than once every 30 days. The demerol prescriptions were in injectable as well as tablet form, and were prescribed in 100 tablet quantities, on a fairly consistent and frequent basis. Dilaudid, another narcotic analgesic, was proscribed in conjunction therewith. Clara Shires was treated by Respondent for rheumatoid arthritis and anemia, with the arthritis being a progressive and painful disorder. He used large amounts of narcotics to make her functional. He prescribed quaalude and tuinal because they are effective hypnotics. He prescribed dexedrine to give the Patient energy, although she lost weight while using the drug. Respondent described the patient to the Department of Professional Regulation investigators during the course of their investigation in March, 1982, as an addict who he had unsuccessfully tried to withdraw from drugs a number of times. In another portion of the interview unrelated to Clara Shires, Respondent acknowledged that he wrote 100 quaalude tablet prescriptions too frequently. Given the frequency of the prescriptions for Clara Shires, the quaalude, tuinal and other prescriptions should have lasted longer between prescribing dates. Furthermore, the prescribing of these two types of hypnotic sleeping agents at the same time was of questionable propriety. Although the patient was directed to take only one pill at bedtime, she was prescribed approximately 3 pills per day over a 11 year period. A similar problem was exhibited with the dexedrine prescriptions, which instructed the patient to take one tablet a day, although a prescription for three tablets a day was issued. In light of the diagnosis of narcolepsy (inappropriate sleep disorder), which is a relatively rare disease, the prescriptions for quaalude and tuinal for a patient taking dexedrine is found to be inappropriate. 1/ Based upon Dr. Lindberg's review of the records and his opinion, Respondent utilized medically and excessive amounts of the various drugs for the patient. For example, the patient's lack of appetite and Respondent's diagnosis of malnutrition are findings expected with use of the drugs dexedrine and dexamyl. It should also be noted that only after the enactment of Section 458.331(1)(cc), F.S., did Respondent diagnose the patient's condition on the prescriptions as narcolepsy, whereas previously the prescription was listed as being for "pep." Many of the scheduled controlled substances prescribed by Respondent were not recorded on the patient charm. Specifically, with respect to the hospitalization of October 16, 1980, hospital records maintained by Respondent did not reveal the extent of his prescribing of scheduled controlled substances and, indeed, he wrote prescriptions for scheduled controlled substances to be filled at community pharmacies while the patient was still hospitalized, thereby effectively concealing the patient's true treatment regimen. A further charting deficiency was noted for July 8, 1980, where Respondent wrote duplicate prescriptions for quaaludes and demerol, and another prescription for tuinal and dexedrine, with none recorded on the patient chart. The first note in the medical chart of Clara Shires concerning the prescription for dexedrine being other than for "pep" is the notation of May 21, 1981, that the patient had been diagnosed narcoleptic. Narcolepsy is a spontaneous sleep disorder wherein the patient falls into a "R.E.M." sleep immediately which is diagnosable only in a sleep laboratory (where R.E.M. could be determined) . Respondent first diagnosed narcolepsy in May, 1981, after several years of prescribing this drug. The only correlation between the dexedrine and the sleeping medications being prescribed at the same time is to wake the person with the "upper", a highly inappropriate medical justification for dexedrine, but a common "street practice." If the patient indeed had narcolepsy, the quaalude and tuinal sleep medications were highly inappropriate and without medical justification. Between the dates of July 14, 1980, and September 19, 1980, Respondent prescribed 1,300 quaalude tablets for Paul Shires. His prescription profile relates that he obtained a prescription approximately every 30 days for 100 tablets of 300 mg. quaalude with the specified directions on the prescription to take one at bedtime as needed for sleep. Respondent began treating this patient in 1974. He previously had a myocardial infraction, had angina pectoris, diabetes mellitis and hyperlipidemia, which caused a great deal of pain. Respondent found that the patient slept comfortably by using quaaludes. In the interview of Respondent by Petitioner's investigators, Dr. Stoner stated that this patient was an addict. The expert testimony of Respondent's witnesses established that there was no medical justification for the prolonged and excessive utilization of methaqualone for this patient. Between July, 1980, and December, 1981, Respondent prescribed 2,000 tablets of methaqualone and 2,000 tablets of dilaudid for the patient Thomas Lardiere. The prescribing profile reveals that approximately every 25 to 30 days, Respondent concurrently prescribed 100 tablets of each medication to Lardiere throughout this period. Lardiere first consulted Respondent in 1977. He then had a total disability rating from the Social Security Administration and suffered spinal stenosis with a prior unsuccessful laminectomy operation for this disorder. He was ambulatory but in extreme pain. Respondent prescribed methaqualone to enable the patient to sleep at night, and to relieve him of anxiety from recurrent pain. Dilaudid was also prescribed for pain. Respondent stated to the Petitioner's investigator that both Lardiere and his wife were addicts. Furthermore, Lardiere had been arrested for a narcotics violation, and this was known to Respondent. Respondent made no tests to detect whether or not Lardiere was taking the prescribed medications or whether he was diverting them. Between March 18, 1981,and December 24, 1981, Respondent prescribed 800 tablets of methaqualone and 715 tablets of dilaudid for Steven Kennedy. The prescribing profile reveals that approximately every 20 to 30 days, Respondent prescribed 100 tablets of each medication to the patient over the course of this period. Kennedy first consulted Respondent in early 1981 with severe pain in the right arm (causalgia). Respondent prescribed quaalude for sleep and dilaudid for the chronic pain. A review of Respondent's medical records and the prescriptions at issue here establish that Respondent initially prescribed percodan after the patient related to him that he had previously needed one to two per day for pain. Respondent also prescribed 100 quaaludes. On the second visit, Kennedy stated that he got no relief from the percodan and asked for dilaudid, which Respondent then prescribed in the largest tablet available (4 mg). Between July 21, 1980, and January 8, 1982, Respondent prescribed 2,300 methaqualone tablets and 1,900 percodan tablets for the patient Jennifer Bischoff. The prescriptions reveal that approximately every 25 to 35 days, Respondent provided a prescription of 100 tablets of each drug to the patient, with directions to take one tablet at bedtime as needed for sleep. Jennifer Bischoff was 24 years old when she became Respondent's patient. She had had a hysterectomy at age 21 which precipitated an early menopausal stage and emotional difficulties. Respondent prescribed quaaludes and percodan for headaches. She had already tried aspirin and fiornal before she came to Respondent and those drugs did not injure her, and were beneficial. According to the patient records, Respondent had been informed that this patient was on probation for illegal quaalude possession. As with other patients, the prescriptions were too frequent for a patient who was directed to take only one tablet at bedtime for sleep, but provided enough tablets over the two-year period to average nearly 3 tablets per night. The records of this patient contained no evidence of consultations with other physicians, such as neurologists, concerning the chronic headaches. Headache is a non-fatal self-limiting disorder. In view of this and because of the danger of utilizing the addictive Schedule II controlled substance percodan, such prescriptions were of questionable medical propriety. Between July, 1980,and December, 1981, Respondent prescribed for the patient Robert Andrews 1,500 quaaludes, 1,600 dilaudid tablets and 1,400 desoxyn tablets. The prescribing profile demonstrates that every 25 to 30 days the Respondent prescribed 100 tablets of each drug named above for this patient. Respondent treated Andrews, a 36-year old patient, for pain in his left ankle, both knees, and for narcolepsy. He prescribed dilaudid for the pain, quaalude for rest at night and anxiety. The desoxyn was prescribed for the narcolepsy. Respondent stated to Petitioner's investigator that this patient was addicted and it occurred to him that some of the medications might be sold. The patient records indicated that on his first visit to Respondent in January, 1980, the patient wanted to lose and regulate his weight. He was taking amphetamines and was given quaaludes for sleep. Narcolepsy was written down on the patient record with a question mark next to the word. The patient record indicates that the patient sleeps often in the daytime and watches his diet. However, there was no investigation of the sleep patterns of the patient to document a finding of narcolepsy, nor did the records substantiate a diagnosis of narcolepsy. Respondent's prescribing of dilaudid, a highly addictive and dangerous drug, for a nonfatal orthopedic condition in the knees and ankle, was medically unjustified. Further, the three drugs prescribed, given the frequency, amounts, types and durations of the prescribing, constituted a failure of Respondent to practice medicine with an acceptable level of care. Between July, 1980, and December, 1981, Respondent prescribed 2,950 dilaudid tablets, 800 quaalude tablets and 400 tuinal tablets to the patient B. J. Anderson. The prescribing history demonstrates that approximately every 7 to 20 days, Respondent wrote 100 tablet prescriptions of dilaudid for this patient, and approximately every 30 to 40 days, he prescribed at least 100 quaalude and/or tuinal tablets. Anderson was a 40-year old male patient of Respondent's who was seriously handicapped due to a motorcycle accident. The dilaudid was prescribed for the pain resulting from causalgia of the right hand and other pain, while the quaaludes and tuinal were for nighttime sedation and hypnosis. The patient records established that on the first visit of this patient to Respondent, he not only noted the physical disability but formed the stated medical impression that the individual was drug dependent. The patient, on his initial visit to Respondent's office, was receiving 1 to 2 dilaudid tablets a day for pain, which rapidly increased in frequency under Respondent's care. Between July, 1980, and December, 1981, Respondent prescribed 1,600 tuinal tablets (to be taken "one at bedtime as needed for sleep") and 1,500 percodan tablets for the patient Ellen Sarondes. The prescribing history demonstrates that this patient was receiving prescriptions for tuinal and percodan approximately every 30 days. This patient was a 52-year old female who had been taking tuinal for 14 years and was suffering from a kidney disease when she consulted Respondent. She had suffered withdrawal pains from not taking tuinal. Respondent believed that it was medically acceptable to maintain this dependency, and prescribed the percodan for pain. Between March and May, 1981, Respondent prescribed 400 quaaludes and 300 preludin tablets for the patient Eugene DiGeronimo. Thee prescribing history reflects that 100 quaalude tablets were prescribed every 28 days, with two prescriptions for 100 each of quaalude prescribed on May 13, 1981. On each of these same days, 100 preludin were also prescribed by Respondent. The patient was obese and consulted Respondent for treatment of his weight problem. Respondent prescribed the quaaludes because the patient could not sleep at night. He prescribed preludin as an appetite suppressant and because it made the patient more alert during the daytime hours. However, Respondent wrote this patient a registered letter telling him that he was using too many drugs, after his pharmacist/uncle called the Respondent. Although the patient records revealed that Respondent was prescribing preludin for weight control, the prescription of March, 1981, listed the diagnosis for this same prescription as "narcolepsy." However, there was nothing in the patient records to substantiate this diagnosis. The frequency by which preludin were prescribed was far greater than the directions for usage provided by Respondent. A patient taking the number of preludin tablets being taken by DiGeronimo (225 mg per day) would have difficulty sleeping in the opinion of Petitioner's expert witness, accounting for the methaqualone prescription during the same time period. Again, the dosage level of quaaludes was far in excess of the express directions of the physician. A diagnosis of narcolepsy, if in fact one was made by Respondent, would be inconsistent medically with these prescriptions for large amounts of sleeping medication. Between July 11, 1980, and December 31, 1981, Respondent prescribed 2,100 tuinal tablets and 6,612 dilaudid tablets for the patient David Markarian. The prescribing history reflects that every 2 to 15 days, Respondent prescribed 100 dilaudid tablets and approximately every 20 to 28 days, prescribed 100 tuinal tablets for this patient. Markarian was 30 years old and suffered from injuries sustained in a motorcycle accident. Upon consulting Respondent, he was paretic (weak in the limbs) and Respondent prescribed dilaudid so the patient could function and be relieved of the pain. According to Respondent, the patient was drug dependent. Earlier, Respondent stated to Petitioner's investigator that this patient was an addict. Review of the medical records revealed nothing to justify the tuinal prescriptions. Furthermore, the tuinal was being taken and prescribed in direct contravention of Respondent's own written directions over a one and one-half year period. Respondent's directions were to take one pill at bedtime for sleep. However, the patient was supplied with almost 31 pills per day. The medical records also indicate the patient, at one time, sought referral to a methadone clinic for his addiction. On his referral to a pain clinic, however, Respondent did not mention the large amount of drugs being prescribed to this patient. (During the 45-day period from August 10 through October 3, 1980, the patient received approximately 15 tablets of dilaudid a day.) Between July 9, 1980, and December 23, 1981, Respondent prescribed 3,400 dexedrine tablets to the patient Joan Elliott. The prescribing profile indicates that the patient was to take one tablet 4 times a day. Respondent initially testified at hearing that this 50-year old woman was suffering from narcolepsy or pickwickian syndrome and that these disorders are related. However, on cross-examination, he stated that after his initial testimony, he had learned that narcolepsy and pickwickian syndrome are distinct, the first being a central nervous system disorder, whereas the latter is caused by pressure on the diaphragm and the lack of oxygen and obstruction to the airways. He further admitted that although no one in his family had narcolepsy, he had prescribed dexedrine for his wife who did not suffer from narcolepsy, but on the prescription written by him, he listed the diagnosis as narcolepsy. None of the subject patients testified in this proceeding nor were they examined by Petitioner's expert witness. Therefore, no finding of actual harm as a result of Respondent's treatment can be made. Furthermore, it was not demonstrated that Respondent profited from the excess drugs he prescribed or that such drugs were illegally resold or distributed. Much of the evidence Petitioner has urged with respect to Physician desk Reference drug effectiveness must be disregarded. The testimony of Petitioner's and Respondent's medical witnesses established that the drugs at issue here may have longer periods of effectiveness with individual patients than the periods set forth in this reference source. Respondent established that drug dependency in a patient suffering from chronic, disabling pain may be medically acceptable where no other alternative exists. This does not, however, explain or mitigate that evidence which demonstrated that Respondent habitually prescribed drug amounts far in excess of the dosages he established. Respondent demonstrated that he enjoys an excellent reputation in the medical community. He has had a long and successful medical career apparently unmarred by previous complaints or disciplinary proceedings.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Petitioner enter a final order reprimanding Respondent, fining him $2,500 and restricting his practice against prescribing, dispensing or administering scheduled controlled substances. DONE and ORDERED this 4th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1984.
Findings Of Fact The Board of Pharmacy is the state agency in Florida charged with the regulation of the practice of pharmacy in this state. By stipulation, at all times material to the allegations herein, Respondent was a pharmacist in Florida having been issued license Number TS 0017388. On or about December 13, 1985, Respondent dispensed 20 Empirin #3 tablets with codeine to Sandra Robinson, a dental assistant to Dr. J. T. Flannigan, pursuant to a prescription written by Dr. Flannigan that same day. On January 8, 1986, Respondent again dispensed 20 Empirin #3 with codeine to Ms. Robinson pursuant to another prescription written by Dr. Flannigan that same day. Empirin #3 with codeine is a brand name of a medicinal drug defined by Section 465.003(7), Florida Statutes, containing codeine, a controlled substance, in sufficient quantity to be listed in Schedule III, Chapter 893, Florida Statutes. On January 14, February 3 and 26, March 10, and November 11, 1986, Respondent again honored prescriptions written on those dates for Empirin #3 with codeine, in the amounts of 20, 20, 30, 30, and 20 tablets respectively, to Marsha Villani, Dr. Flannigan's office manager. At all times relevant to the allegations in the Complaint, Respondent was prescription department manager for Jake's Health Mart, a community pharmacy as described in Section 465.018, Florida Statutes, as well as sole shareholder and owner of the facility. Ms. Villani, Ms. Norris, and Ms. Laxen, all, at the time in issue, presented the prescriptions to Respondent and received the substance indicated from him under a scheme devised by Dr. Flannigan who suffered from a bad back. The prescriptions were written and given to the women by Flannigan with the understanding that they would have them filled and then deliver the drugs to him. Ms. Villani worked for Dr. Flannigan from July, 1984 to April, 1988. During that period, Flannigan also treated her as a patient and, at various times, prescribed medicine for her for relief of pain from a broken foot and a dislocated shoulder. Over the period of time she worked for him, he also gave her prescriptions for drugs containing controlled substances issued in her name which were really for him. Many of these prescriptions were taken by Ms. Villani to Respondent's store where some were filled by Respondent, personally. Others were filled by other pharmacists who worked for him. It is her recollection that during the time she was doing this, she discussed what she was doing with Respondent because she was nervous about it since she knew it to be improper. She claims to have told Respondent on many occasions that the prescriptions were not for her use and discussed the possible repercussions of her actions with him several times. When she mentioned her concerns about Dr. Flannigan's continued drug use and his use of her as a courier, Respondent allegedly was very supportive and indicated it was nothing to be concerned about. After a period of time, during which Respondent never failed to honor the invalid prescriptions, on one occasion he did refuse to honor a prescription and told Ms. Villani to tell Flannigan to call him. At the time, she felt this might be Respondent's way of handling the situation, but she found, thereafter, that it was because he had been contacted by a Department investigator who was looking into Flannigan's activities. On cross examination, Ms. Villani indicated she believed other pharmacists working for the Respondent also knew what was going on because she also told them of the scheme. In this, her testimony is inconsistent with that given on direct wherein she indicated she did not discuss what she was doing regarding Flannigan's prescriptions with any other pharmacist. She also indicates that Respondent's brother, Pete, who worked at the pharmacy, filled some of the prescriptions for her and that she told him what was going on as well. Ms. Norris worked for Dr. Flannigan from October, 1984 through February, 1986 and, in addition to working with him, was a patient in 1985. At that time, he prescribed Percodan and an antibiotic. During the period of time she worked for him, he gave her several prescriptions for Empirin #3 with codeine which she was to have filled and then transfer the drug to him. Ms. Norris took those prescriptions to the Respondent for filling, but usually did not tell him who the pills were actually for. However, on one instance in December, 1985, she took a prescription for Empirin #3 with codeine in and when the Respondent asked her if the prescription was for her throat, she indicated they were not for her even though her name was indicated as patient on the prescription form. Nonetheless, the Respondent filled the prescription. In January, 1986, when she took another prescription in, Respondent asked her if it was for her throat and she indicated it was. Ms. Laxen worked for Dr. Flannigan as a dental assistant over two different periods, from March, 1984 through July, 1985, and again from October, 1987 through January, 1988. During those periods, she was not treated by him as a patient, however, he gave her prescriptions for drugs which she was to have filled and return to him during the period before she left in July, 1985. These prescriptions, which were written in her name, were filled by Respondent and on at least one occasion, when Respondent asked her if the prescription was for her, she indicated it was not. He nonetheless filled it. Though she had received other prescriptions of that nature from Flannigan which she had filled by Respondent and his associates previously, she had not discussed any of the details with Respondent. In fact, she is not sure which prescription is the one she discussed with Respondent. The entire situation was not comfortable for her and she preferred not to do it. Under the circumstances shown here, since no substance is indicated and no actual date is shown, Ms. Laxen's testimony is relevant only to corroborate the allegation that Respondent would fill prescriptions knowing that the name appearing thereon was not the actual individual for whom the substance was destined. Respondent does not deny knowing Ms. Villani or Ms. Norris but does not recall having met Ms. Laxen. He cooperated fully with the Department's investigator, Ms. Gossett, and even suggested ways in which she could get additional information. Most of the prescriptions in question presented by Ms. Villani, Ms. Norris, and Ms. Laxen are what are known as "third party prescriptions" paid for by an insurance company with the presenter paying only a $2.00 co-payment. Under the terms of the agreements he has with the various insurance companies, Mr. Beckel receives only the wholesale cost of the drug he provides plus a service fee of $3.00. As a result, there is very little profit in this type of prescription and he claims he would not place his license in jeopardy for the small amount of profit that might be realized from supplying Dr. Flannigan's drug needs. Consistent with that thesis, Respondent claims not to have known that he was filling false prescriptions when the investigator first came in. In September, 1987, at the time of the investigation, Ms. Gossett told Respondent that the prescriptions given by Flannigan to his employees were bad and that he should fill no more of them. He agreed. About an hour later, Ms. Villani came in with one of them and he asked her about it. At that time she admitted that the prescription, though written to her, was not for her, and at that point, he refused to honor it and requested that she have Dr. Flannigan call him and he would take care of it. Respondent is adamant in insisting, however, that he found out what Flannigan was doing, and received the admission from Ms. Villani that the prescription she was offering was not for her, only once. This was after he was advised of the situation by the Department investigator. He denies Villani's claim that she told him on several occasions that the prescriptions she presented were not for her. When Dr. Flannigan came to see Respondent at his request, only then did he admit what he had done. After that, Respondent would not fill any prescriptions written by Flannigan to any of his employees. He continues to fill other Flannigan prescriptions to bona fide patients. Regarding the prescriptions presented by Ms. Norris, Respondent admits that he would have asked the question about her throat if he knew what her medical profile was. However, he strongly contends that if, as she states, she advised him that the prescription was not for her, he would have asked her more, including who it was for and for what purpose it was written. If, in that case, she did not have a satisfactory answer, he would not fill the prescription. He further contends that had he known the drugs were for Flannigan, he would not have filled the prescription Ms. Norris gave him. He repeatedly asserts he stood to gain nothing by providing Flannigan with controlled drugs through this scheme. When it was suggested by Petitioner's counsel that a valid reason would be to maintain Dr. Flannigan's good will because of the volume of prescriptions he writes, Respondent astutely responded that Dr. Flannigan does not write enough prescriptions totally, throughout his practice, for him to risk his license on the potential for future business and this is accepted. The last prescription Respondent filled for Ms. Villani which is alleged in the Complaint was presented on November 11, 1986. This was at least several months before the conversation he had with her in September, 1987, in which Ms. Villani admitted that the prescription was not for her but was for Dr. Flannigan. He is sure that prior to that prescription, and all during the time he honored the prescriptions which form the substance of the complaint against him, Ms. Villani never told him the prescriptions she had him fill were for Flannigan. He recalls seeing her in the store often and has had many conversations with her, but, characterizing her as somewhat "spacey and illogical in conversation", he denies ever having knowingly filled a prescription for her which was intended for Flannigan. In addition, he contests her assertion that his brother, Peter, filled a prescription for her since Peter is not a pharmacist and, though he works in the store and may have filled other orders for Villani for non-controlled medical supplies, he is not permitted to work in the pharmacy and fill prescriptions. Turning to the issue of an economic motive for filling the illegal prescriptions, and relating it to his prior comment about the volume of Flannigan's prescription business not justifying Respondent's risk of his license to get it, examination of his records indicated to Respondent that over the period of their relationship, Dr. Flannigan's prescriptions in the past year have amounted to approximately 3 to 4 thousand dollars valuation. In that same year, Respondent's gross sales in the pharmacy were 1.8 million dollars. Therefore, Flannigan accounts for a very small percentage of the overall business, and while he might have made some profit filling the bad prescriptions, the amount involved was not nearly big enough to justify risking his license. In addition, in February, 1987, Respondent opened a second store on South MacDill Avenue, in Tampa. From that point on, he spent a majority of his time at that store, remaining there at least five days a week during the normal business day. He admits he was in his main store approximately 30 minutes out of every day, performing administrative functions such as checking mail, signing checks, and the like. Rarely, during that time, did he work in the pharmacy there. Based on the above, the evidence appears to be in equipoise. On the one hand, three employees of Dr. Flannigan have indicated that at various times they presented false prescriptions to Respondent for controlled substances intended for Flannigan which Respondent filled knowing that the ultimate receiver was not the individual whose name appeared on the prescription. On the other hand, Respondent unequivocally and frankly denies knowledge of the situation at the time the prescriptions were presented and asserts that when he discovered the true situation, he immediately declined to fill any more prescriptions of this nature. This equipoilent situation must be evaluated in light of the surrounding evidence. On one side is the testimony of the three individuals which, while it is certain as to what Respondent may have been told, is uncertain as to exact times the conversations were held. This is not to state that these witnesses do not, at this point, truly believe what they say, and it is recognized that, as counsel for Petitioner points out, they jeopardize their position by admitting to what might be classified as criminal behavior. On the other side, Respondent was unequivocal in denying any knowledge of the true nature of the questioned prescriptions. He also presented the testimony of three individuals, all of whom are responsible, significant individuals in the community, who are familiar with his reputation for truth and veracity in the community. All three, Dr. Caspar, Mr. Quigley, and Mr. Brynjolffson, one a physician and the others financial leaders in the community, indicate his reputation in that regard is excellent. Two, Quigley and Brynjolffson, related Respondent has been asked to be a bank director in their organization and as a result thereof, has undergone a strenuous and comprehensive background investigation by the Federal Bureau of Investigation and been determined to be completely free of misconduct or disqualification. Dr. Caspar also indicated that in addition to Respondent's excellent reputation for truth and veracity, he has a reputation for being a tough pharmacist who calls and questions any odd prescription. Taken together, and considering the evidence as a whole, evaluating and measuring the relative probabilities and improbabilities of the testimony, it must be concluded that the evidence is insufficient to clearly and convincingly establish that at the time Respondent filled the prescriptions for controlled substances alleged in the Administrative Complaint, he knew the prescriptions were false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner enter a Final Order dismissing both Counts I and II of the Amended Administrative Complaint against the Respondent. RECOMMENDED this 31st day of July, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6270 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted. &. 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. & 10. Rejected as unproven. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. - 8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. Accepted. & 13. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 17. Accepted and incorporated herein. 18. Accepted and incorporated herein. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 730 South Sterling, Suite 201 Tampa, Florida 33609 Terrence Pyle, Esquire Post Office Box 3126 Apollo Beach, Florida 33570-3126 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rod Presnell Executive Director Board of Pharmacy 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact During an audit conducted in early August, 1975 by an agent for the Board of Pharmacy a substantial shortage of Dilaudid, Quaalude, and Tuinal was noted between the record of the amounts of these controlled drugs received and dispensed. Since no running inventory is required to be maintained the auditor commenced his audit with crediting Halcals with having none of these controlled drugs on hand January 1, 1975 and thereafter checking the prescriptions for drugs dispensed against the invoice of drugs received subsequent to January 1. In looking through the prescriptions numerous prescriptions appeared to the investigator to be forged and a subsequent check with the purported issuer disclosed that many of the prescriptions on file were in fact forged prescriptions. The Respondent stipulated that many of the prescriptions on file at Halcals were forged. No deduction was taken for the forged prescriptions, yet the audit showed more than 1600 tablets of the above based drugs had been received than could be accounted for by the prescriptions on file. Further, the audit revealed that approximately 80 percent of the forged prescriptions had been filled out by Respondent; and, also, that of the prescriptions audited, Steinberg filled 80 percent of the prescriptions for those controlled drugs found short on the inventory. Section 893.07 Florida Statutes requires every person dispensing controlled substances (e.g. pharmacists) to maintain on a current basis a complete and accurate record of each substance received and sold, delivered or otherwise disposed of by him. During the course of the audit Respondent acknowledged that on one occasion he "refilled" a prescription for 50 tablets of Dilaudid without recording same when the purchaser told him the original tablets given him tasted like saccharin. Testifying in his own behalf Respondent told of at least one theft in the pharmacy where drugs were stolen. He had no idea what happened to the missing drugs. Each pharmacist on duty is required to date and file all prescriptions and to keep the records of all invoices of controlled substances received. No running inventory is required; therefore, none is kept. Considerable evidence was presented that Respondent filled numerous prescriptions for the controlled drugs noted in the audit which he knew, or should have known, were forged. For filling many of these prescriptions Respondent received "tips". In his testimony Respondent recounted the situation which frequently occurred viz. that at frequent intervals A would present a prescription to Respondent and as soon as Respondent filled this prescription several other prescription holders immediately followed with similar prescriptions. Respondent further testified that he had no reason to suspect anything was wrong with these prescriptions. No charges were preferred against Respondent respecting the filling of any of those forged prescriptions, so all evidence with respect thereto is irrelevant to these proceedings and is disregarded by the hearing officer.
