NOTE:   The following Minutes are provided for informational purposes only.

If you would like to obtain an official copy of these Minutes, please contact

the State Board of Pharmacy at 614/466-4143 for instructions and fee.

 

 

 

STATE BOARD OF PHARMACY; 77 SOUTH HIGH STREET, ROOM 1702; COLUMBUS, OHIO 43215-6126

Tel:  614/466-4143                         Fax:  614/752-4836                      Email:  exec@bop.state.oh.us

 

 

Minutes Of The Meeting

Ohio State Board of Pharmacy

October 4, 5, 6, 2004

 

MONDAY, OCTOBER 4, 2004

 

  8:00 a.m.     ROLL CALL

 

The State Board of Pharmacy convened in Room West-B&C, 31st Floor, Vern Riffe Center for Government and the Arts, 77 South High Street, Columbus, Ohio with the following members present:

 

Lawrence J. Kost, R.Ph. (President); Suzanne R. Eastman, R.Ph. (Vice-President); Elizabeth I. Gregg, R.Ph.; Nathan S. Lipsyc, R.Ph.; Kevin J. Mitchell, R.Ph.; Dorothy S. Teater, Public Mem­ber; and James E. Turner, R.Ph.

 

Also present were William T. Winsley, Executive Director; Timothy Benedict, Assistant Executive Director; William McMillen, Licensing Administrator; Mark Keeley, Legislative Affairs Administrator; Robert Cole, Compliance Supervisor; David Rowland, Legal Affairs Administrator; and Sally Ann Steuk, Assistant Attorney General.

  8:06 a.m.

Mr. Rowland announced that the following settlement agreement in the matter of Delbert G. Brown, R.Ph. had been signed by all parties and was now effective:

 

R-2005-049

SETTLEMENT AGREEMENT WITH THE STATE BOARD OF PHARMACY

(Docket No. D-040714-003)

 

In The Matter Of:

 

DELBERT G. BROWN, R.Ph.

1425 Pleasant Hill Road

Waverly, Ohio 45690

(R.Ph. No. 03-3-10478)

 

This Settlement Agreement is entered into by and between Delbert G. Brown and the Ohio State Board of Pharmacy, a state agency charged with enforcing the Pharmacy Practice Act and Dangerous Drug Distribution Act, Chapter 4729. of the Ohio Revised Code.

 

Delbert G. Brown voluntarily enters into this Agreement being fully informed of his rights afforded under Chapter 119. of the Ohio Revised Code, including the right to representation by counsel, the right to a formal adjudication hearing on the issues contained herein, and the right to appeal.  Delbert G. Brown acknowledges that by entering into this agreement he has waived his rights under Chapter 119. of the Revised Code.

 

Whereas, the Board is empowered by Section 4729.16 of the Ohio Revised Code to suspend, revoke, place on probation, refuse to grant or renew an identification card or enforce a monetary penalty on the license holder for violation of any of the enumerated grounds therein.

 

Whereas, Delbert G. Brown is licensed to practice pharmacy in the State of Ohio.

 

Whereas, on or about July 14, 2004, pursuant to Chapter 119. of the Ohio Revised Code, Delbert G. Brown was notified of the allegations or charges against him, his right to a hearing, his rights in such hearing, and his right to submit contentions in writing.  Delbert G. Brown requested a hearing; it was scheduled and continued.  The July 14, 2004, Notice of Opportunity for Hearing contains the following allegations or charges:

 

(1)  Records of the State Board of Pharmacy indicate that Delbert G. Brown was originally licensed in the State of Ohio on July 30, 1973, pursuant to examination, and is currently licensed to practice pharmacy in the State of Ohio.  Records further reflect during the relevant time periods stated herein, Delbert G. Brown was the Respon­sible Pharmacist at Fruth Pharmacy #16, 101 James Road, Waverly, Ohio, pursuant to Sections 4729.27 and 4729.55 of the Ohio Revised Code and Rule 4729-5-11 of the Ohio Administrative Code.

 

(2)  Delbert G. Brown did, on or about April 14, 2003, misbrand a drug, to wit: when Delbert G. Brown received a prescription for clonidine 0.2 mg, Rx #6566070, he dispensed clonazepam 2 mg, which had not been prescribed by the physician.  The patient was subsequently hospitalized.  Such conduct is in violation of Section 3715.52(A)(2) of the Ohio Revised Code.

 

Delbert G. Brown neither admits nor denies the allegations stated in the Notice of Oppor­tunity for Hearing letter dated July 14, 2004; however, the Board has evidence sufficient to sustain the allegations and hereby adjudicates the same.

 

Wherefore, in consideration of the foregoing and mutual promises hereinafter set forth, and in lieu of a formal hearing at this time, Delbert G. Brown knowingly and voluntarily agrees with the State Board of Pharmacy to the following:

 

(A)  Delbert G. Brown agrees to the imposition of a monetary penalty of five hundred dollars ($500.00), and payment of the monetary penalty is due and owing within thirty (30) days from the effective date of this Agreement.  Checks should be made payable to the “Treas­urer, State of Ohio“ and mailed with the enclosed forms to the State Board of Pharmacy, 77 South High Street, 17th Floor, Columbus, Ohio 43215-6126.

 

(B)  In addition to any and all other continuing education requirements, Delbert G. Brown agrees to attend, within 6 months of the effective date of this agreement, two hours (0.2 CEUs) additional hours of Board-approved continuing pharmacy education for preventing prescription errors in a retail pharmacy.

 

If, in the judgment of the Board, Delbert G. Brown appears to have violated or breached any terms or conditions of this Agreement, the Ohio State Board of Pharmacy reserves the right to, at any time, revoke probation, modify the conditions of probation, and reduce or extend the period of probation, and/or the Board may institute formal disciplinary proceedings for any and all possible violations or breaches, including but not limited to, alleged violation of the laws of Ohio occurring before the effective date of this Agreement.

 

Delbert G. Brown acknowledges that he has had an opportunity to ask questions concerning the terms of this agreement and that all questions asked have been answered in a satis­fac­tory manner.  Any action initiated by the Board based on alleged violation of this Agreement shall comply with the Administrative Procedure Act, Chapter 119. of the Ohio Revised Code.

 

Delbert G. Brown waives any and all claims or causes of action he may have against the State of Ohio or the Board, and members, officers, employees, and/or agents of either, aris­ing out of matters which are the subject of this Agreement.  Delbert G. Brown waives any rights of appeal pursuant to Chapter 119. of the Ohio Revised Code.

 

This Settlement Agreement shall be considered a public record, as that term is used in Sec­tion 149.43 of the Ohio Revised Code, and shall become effective upon the date of the Board Presi­dent’s signature below.

/s/         Delbert Brown

 

/d/      9–24–04

 

Delbert G. Brown, R.Ph., Respondent

 

Date of Signature

 

/s/         Lawrence J. Kost

 

/d/      10–4–04

 

Lawrence J. Kost, President, Ohio State Board of Pharmacy

 

Date of Signature

 

/s/         Sally Ann Steuk

 

/d/      10–4–04

 

Sally Ann Steuk, Ohio Assistant Attorney General

 

Date of Signature

 

  8:08 a.m.

Mrs. Gregg moved that the Board go into Executive Session for the purpose of the investi­gation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code and for the purpose of conferring with an attorney for the Board re­garding pending or imminent court action pursuant to Section 121.22(G)(3) of the Revised Code.  The motion was seconded by Mr. Lipsyc and a roll call vote was conducted by President Kost as follows: Eastman-Yes, Gregg-Yes, Lipsyc-Yes, Mitchell-Yes, Teater-Yes, and Turner-Yes.

  8:09 a.m.

Board Member Gregory Braylock arrived and joined the Executive Session in progress.

10:05 a.m.

R-2005-050    The Executive Session ended and the meeting was opened to the public.  Mr. Turner moved that the Board approve the settlement offer that was presented in the matter of Dennis White as long as Mr. White accepts the amendments made by the Board.  The motion was seconded by Mr. Braylock and approved by the Board (Aye-7/Nay-0).

 

R-2005-051    Ms. Eastman then moved that the Board agree to the request from the Akron Center for Choice that they be allowed to withdraw their application for a license as a Terminal Dis­tributor of Dangerous Drugs.  The motion was seconded by Mr. Lipsyc and approved by the Board (Aye-7/Nay-0).

 

R-2005-052    Ms. Eastman then moved that the Board refuse the settlement offer submitted in the matter of John Tekulve, R.Ph.  The motion was seconded by Mrs. Gregg and approved by the Board (Aye-7/Nay-0).

10:08 a.m.

The Board took a brief recess.

10:15 a.m.

R-2005-053    The meeting resumed.  The Board reviewed the response received from the Ohio Depart­ment of Job and Family Services (ODJFS) to the Board’s letter regarding the issue of man­dated tablet splitting for Ohio Medicaid recipients.  After discussion, it was the con­sensus of the members present that, since ODJFS had chosen to ignore the recom­men­da­tions of the Board in this matter, there did not seem to be much further action the Board could take at this time.  The Board members reiterated the position approved at the Sep­tember, 2004, meeting regarding their extreme concern for the safety of the patients if this policy is implemented.

 

The Board was then joined by Mr. Keeley for a discussion of the proposed new and changed rules to be considered for approval.

11:30 a.m.

The Board recessed for lunch.

  1:15 p.m.

The Board reconvened in Room West-B&C, 31st Floor, Vern Riffe Center for Government and the Arts, 77 South High Street, Columbus, Ohio with the following members present:

 

Lawrence J. Kost, R.Ph. (President); Suzanne R. Eastman, R.Ph. (Vice-President); Gregory Braylock, R.Ph.; Elizabeth I. Gregg, R.Ph.; Nathan S. Lipsyc, R.Ph.; Kevin J. Mitchell, R.Ph.; Dorothy S. Teater, Public Mem­ber; and James E. Turner, R.Ph.

 

R-2005-054    The Board continued the discussion of the proposed new and changed rules.  At the conclusion of reviewing all the proposed changes, Mrs. Gregg moved that the Board approve the filing of the following rules as amended.  The motion was seconded by Mr. Braylock and approved by the Board (Aye-7/Nay-0).

 

 

OAC (Ohio Administrative Code) Chapter 4729-3  (PHARMACY INTERNSHIP)

4729-3-01

Definitions.

4729-3-02

Registration as a pharmacy intern.

4729-3-03

Application for registration as a pharmacy intern.

4729-3-04

 

Pharmacy intern identification card renewal.

 

 

OAC Chapter 4729-5  (PHARMACY PRACTICE)

4729-5-01

Definitions.

4729-5-11

Responsible person.

4729-5-13

Prescription format.

4729-5-15

Prescriber.

4729-5-18

Patient profiles.

4729-5-19

Serial numbering of prescriptions.

4729-5-21

Manner of processing a prescription.  [Proposed New]

4729-5-24

Prescription copy.

4729-5-27

Recordkeeping.  [To Be Rescinded/part of Proposed New 5-27]

4729-5-27

Record keeping.  [Proposed New]

4729-5-28

Computerized recordkeeping systems.  [To Be Rescinded/part of Proposed New 5-27]

4729-5-30

Manner of issuance of a prescription.  [To Be Rescinded/part of Proposed New 5-30]

4729-5-30

Manner of issuance of a prescription.  [Proposed New]

4729-5-35

 

Automated drug delivery systems.

 

 

OAC Chapter 4729-9  (DANGEROUS DRUGS)

4729-9-21

 

Drugs compounded in a pharmacy.

 

 

OAC Chapter 4729-15  (NUCLEAR PHARMACIES)

4729-15-01

Definitions.

4729-15-03

 

Minimum standards for a nuclear pharmacy.  [Proposed New]

 

 

OAC Chapter 4729-17  (INSTITUTIONAL FACILITIES)

4729-17-01

Definitions.

4729-17-09

 

Drug orders for patients of an institutional facility.

 

 

OAC Chapter 4729-19  (STERILE PRODUCT PRESCRIPTIONS)

4729-19-01

Definitions.

4729-19-02

Prescriptions for sterile products.

4729-19-04

 

Minimum standards for compounding parenteral or sterile product prescriptions.

 

 

OAC Chapter 4729-21  (MEDICAL GASES)

4729-21-06

 

Sales of medical oxygen to S.C.U.B.A. divers.  [Proposed New]

 

 

OAC Chapter 4729-22  (RETAIL SELLERS OF OXYGEN)

4729-22-04

 

Prescriber's order.

 

 

OAC Chapter 4729-29  (CONSULT AGREEMENTS)

4729-29-02

 

Pharmacist as agent.

 

 

OAC Chapter 4729-35  (DRUG REPOSITORY PROGRAM PROGRAMS)

4729-35-08

Recordkeeping Record keeping.

 

R-2005-055    Mr. McMillen presented a request for approval as a provider of continuing pharmacy education (CPE) from the Pharmacy Foundation of Ohio/Columbus.  After discussion, Mrs. Gregg moved that the Board approve the Pharmacy Foundation of Ohio as a Board approved in-state provider of CPE.  The motion was seconded by Mr. Braylock and approved by the Board (Aye-7/Nay-0).

 

Mr. Braylock reported that there had been no meeting of the Nursing Board’s Committee on Prescriptive Governance.

 

There was no Medical Board Prescribing Committee report for this month.

  1:35 p.m.

The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of John Tekulve, R.Ph., Cincinnati.

  2:55 p.m.

The hearing ended and the record was closed.  The Board took a brief recess.

  3:05 p.m.

The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of Morganna E. Allen, R.Ph., Marion.

  3:55 p.m.

The hearing ended and the record was closed.

  4:00 p.m.

Mrs. Gregg moved that the Board go into Executive Session for the purpose of the investi­gation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Ms. Eastman and a roll call vote was conducted by President Kost as follows: Braylock-Yes, Eastman-Yes, Gregg-Yes, Lipsyc-Yes, Mitchell-Yes, Teater-Yes, and Turner-Yes.

  5:05 p.m.

R-2005-056    The Executive Session ended and the meeting was opened to the public.  Mr. Braylock moved that the Board deny the settlement offer made in the matters of Barberton Citizens Hospital and Paul Woodruff, R.Ph. and that the hearings be held as scheduled.  The motion was seconded by Mr. Mitchell and approved by the Board (Aye-4/Nay-3).

 

R-2005-057    Mr. Braylock then moved that the Board adopt the following Order in the matter of John Tekulve, R.Ph.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-040205-056)

 

In The Matter Of:

 

JOHN PAUL TEKULVE, R.Ph.

3773 Frances Avenue

Cincinnati, Ohio 45211

(R.Ph. No. 03-3-21594)

 

INTRODUCTION

 

THE MATTER OF JOHN TEKULVE CAME FOR HEARING ON OCTOBER 4, 2004 BEFORE THE FOLLOWING MEMBERS OF THE BOARD: LAWRENCE J. KOST, R.Ph.; (presiding); GREGORY BRAYLOCK, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ELIZABETH I. GREGG, R.Ph.; NATHAN S. LIPSYC, R.Ph.; KEVIN J. MITCHELL, R.Ph.; DOROTHY S. TEATER, PUBLIC MEMBER; AND JAMES E. TURNER, R.Ph.

 

JOHN TEKULVE WAS REPRESENTED BY ERIC J. PLINKE AND THE STATE OF OHIO WAS REPRE­SENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

State’s Witnesses

 

1.  Richard Haun, Ohio State Board of Pharmacy

 

Respondent's Witnesses

 

1.  John Paul Tekulve, R.Ph., Respondent

 

State's Exhibits

 

1.  Notice of Opportunity For Hearing letter  [02-05-04]

1A-1B.  Procedurals

1C.  Addendum Notice  [06-30-04]

1D.  Amendment Notice  [07-15-04]

1E-1F.  Procedurals

2.  Notarized Statement of John Paul Tekulve, R.Ph.  [01-08-04]

3.  Statements of John Tekulve  [01-07-04]

4.  Wal-Mart Stores, Inc. Restitution Note Issued to John P. Tekulve  [01-07-04]

5.   Journal/Judgment Entry, State of Ohio vs. John P. Tekulve, Case No. CRB 0400025, Butler County Area III Court  [05-17-04]

6.  Two State Board of Pharmacy Orders in re John Paul Tekulve, R.Ph.  [09-13-01 and 05-14-98]

 

Respondent's Exhibits

 

A.  Treatment Progress Report from Richard L. Baum, Ed.D.  [09-27-04]

B.  Letter from James F. Liebetrau, R.Ph.  [not dated]

C.  Letter from Matthew E. Fisher, R.Ph.  [09-23-04]

D.  Copy of Day Reporting Theft Program Completion Certificate for John Tekulve  [07-08-04]

E.  Journal/Judgment Entry, State of Ohio vs. John P. Tekulve, Case No. CRB 0400025, Butler County Area III Court  [05-17-04]

F.  Copy of Money Order Receipt, No. 08144467227, made payable to Wal Mart Stores, Inc.  [08-11-04]; United States Postal Service Certified Mail Return Receipt for Article No. 7003 2260 0006 9546 1926  [08-11-04]

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the follow­ing to be fact:

 

(1)  Records of the State Board of Pharmacy indicate that John Paul Tekulve was originally licensed by the State of Ohio as a pharmacist on October 16, 1996, pursuant to examination, and is currently licensed to practice pharmacy in Ohio.  Further, the Board previously disciplined John Tekulve on May 14, 1998.

 

(2)  John Paul Tekulve did, from on or about February, 2003, through December, 2003, with purpose to deprive, knowingly obtain or exert control over property of Wal-Mart beyond the scope of the express or implied consent of the owner, to wit: John Paul Tekulve admittedly stole over $500.00 worth of merchan­dise from his employer.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(3)  On May 17, 2004, John Paul Tekulve was found guilty of one (1) count of Theft, a misdemeanor of the first degree under Section 2913.02 of the Ohio Revised Code.  State of Ohio vs. John P. Tekulve, Case No. CRB 0400025, Butler County Area III Court.

 

CONCLUSIONS OF LAW

 

(1)  The State Board of Pharmacy concludes that paragraphs (2) and (3) of the Find­ings of Fact constitute being guilty of gross immorality as provided in Division (A)(1) of Section 4729.16 of the Ohio Revised Code.

 

(2)  The State Board of Pharmacy concludes that paragraphs (2) and (3) of the Find­ings of Fact constitute being guilty of dishonesty and unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

(3)  The State Board of Pharmacy concludes that paragraph (3) of the Find­ings of Fact constitutes having been convicted of a misdemeanor related to, or committed in, the practice of pharmacy as provided in Division (A)(4) of Section 4729.16 of the Ohio Revised Code.

 

DECISION OF THE BOARD

 

Pursuant to Section 4729.16 of the Ohio Revised Code, and after consideration of the record as a whole, the State Board of Pharmacy adjudicates the matter of John Paul Tekulve as follows:

 

(A)  On the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Phar­macy hereby revokes the pharmacist identification card, No. 03-3-21594, held by John Paul Tekulve effec­tive as of the date of the mailing of this Order.  Further, the Board suspends the revocation and hereby suspends for six months the pharmacist identi­fication card, No. 03-3-21594, held by John Paul Tekulve and such suspension is effective as of the date of the mailing of this Order.

 

(1)  John Paul Tekulve, pursuant to Rule 4729-9-01(F) of the Ohio Admini­strative Code, may not be employed by or work in a facility licensed by the State Board of Pharmacy to possess or distribute dangerous drugs during such period of suspension.

 

(2)  John Paul Tekulve, pursuant to Section 4729.16(B) of the Ohio Revised Code, must return his identification card and license (wall certificate) to the office of the State Board of Pharmacy within ten days after receipt of this Order unless the Board office is already in possession of both.  The identi­fication card and wall certificate should be sent by certified mail, return receipt requested.

 

(B)  On the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Phar­macy hereby imposes a monetary penalty of two thousand five hundred dollars ($2,500.00) on John Paul Tekulve and payment of the monetary penalty is due and owing within thirty days of the mailing of this Order.  The remit­tance should be made payable to the "Treasurer, State of Ohio” and mailed with the enclosed form to the State Board of Pharmacy, 77 South High Street, Room 1702, Columbus, Ohio 43215-6126.

 

(C)  John Paul Tekulve must enter into a new contract, signed within thirty days after the effective date of this Order, with an Ohio Department of Alco­hol and Drug Addiction Services (ODADAS) treatment provider or a treat­ment provider acceptable to the Board for a period of not less than five years and six months and submit a copy of the signed con­tract to the Board office before his pharmacist iden­tification card is issued.  The con­tract must provide that:

 

(1)  Random, observed urine drug screens shall be conducted at least once each month for the first year and then at least once every three months for the re­maining four years.

 

(a)  The urine sample must be given within twelve hours of notifi­cation.  The urine drug screen must include testing for creatinine or specific gravity of the sample as the dilu­tional standard.

 

(b)  Alcohol must be added to the standard urine drug screen and documentation provided to show inclusion in the test panel.  A Breathalyzer may be used to test for alco­hol, but the test must be conducted by an appropriately certified indivi­dual within twelve hours of notification.

 

(c)  Results of all drug and alcohol screens must be nega­tive.  Refusal of a drug screen or a diluted urine screen is equivalent to a positive result.  Any positive results, includ­ing those that may have resulted from ingestion of food, but ex­clud­ing false positives that resulted from medication legitimately prescribed, indicate a viola­tion of the contract.

 

(2)  The intervener/sponsor shall provide copies of all drug screen reports to the Board in a timely fashion.

 

(3)  Attendance is required a minimum of three times per week at an Alco­holics Anony­mous, Narcotics Anonymous, and/or similar support group meeting.

 

(4)  The program shall immediately report to the Board any viola­tions of the con­tract and/or lack of cooperation.

 

(D)  John Paul Tekulve must submit quarterly progress reports to the Board (due January 10, April 10, July 10, and October 10 of each year of proba­tion) that include:

 

(1)  The written report and documentation provided by the treat­ment pro­gram pursuant to the contract, and

 

(2)  A written description of John Paul Tekulve's progress towards recov­ery and what John Paul Tekulve has been doing during the previous three months.

 

(E)  John Paul Tekulve must continue counseling with a licensed psychiatrist or psychologist.  The psychiatrist or psychologist must provide directly to the Board office semi-annual reports and also a final report at the end of probation or treat­ment, whichever comes first.

 

(F)  John Paul Tekulve must obtain, within six months from the effective date of this Order, one hour (0.1 CEU) of Board approved continuing phar­macy education  in jurisprudence, which may not also be used for license renewal.  Documentation of successful completion must be submitted to the Board office.

 

(G)  On the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Phar­macy hereby places John Paul Tekulve on probation for five years effective upon reinstatement of his identification card.  The terms of proba­tion are as follows:

 

(1)  The State Board of Pharmacy hereby declares that John Paul Tekulve’s pharmacist identification card is not in good standing and thereby denies the privilege of being a pre­ceptor and training pharmacy interns pursuant to para­graph (D)(1) of Rule 4729-3-01 of the Ohio Administrative Code.

 

(2)  John Paul Tekulve may not serve as a responsible pharmacist.

 

(3)  John Paul Tekulve may not destroy, assist in, or witness the de­struc­tion of controlled substances.

 

(4)  John Paul Tekulve must abide by the contract with his treat­ment pro­vider and must immediately report any violation of the contract to the Board.

 

(5)  John Paul Tekulve must not violate the drug laws of Ohio, any other state, or the federal government.

 

(6)  John Paul Tekulve must abide by the rules of the State Board of Phar­macy.

 

(7)  John Paul Tekulve must comply with the terms of this Order.

 

(8)  John Paul Tekulve’s license is deemed not in good standing until suc­cess­ful com­ple­tion of the probationary period.

 

(9)  Any violation of probation may result in a Board hearing to consider alter­na­tive or additional sanctions under Section 4729.16 of the Ohio Re­vised Code.

 

John Paul Tekulve is hereby advised that the Board may at any time revoke probation for cause, modify the conditions of probation, and reduce or extend the period of probation.  At any time during this period of probation, the Board may revoke probation for a violation occurring during the probation period.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Ms. Eastman and approved by the Board (Aye-7/Nay-0).

 

R-2005-058    Mr. Braylock next moved that the Board adopt the following Order in the matter of Morganna E. Allen, R.Ph.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-030423-072)

 

In The Matter Of:

 

MORGANNA E. ALLEN, R.Ph.

2298 Brooklyn Road

Columbus, Ohio 43229

(R.Ph. No. 03-2-23624)

 

INTRODUCTION

 

THE MATTER OF MORGANNA E. ALLEN CAME FOR HEARING ON OCTOBER 4, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: LAWRENCE J. KOST, R.Ph. (presiding); GREGORY BRAYLOCK, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ELIZABETH I. GREGG, R.Ph.; NATHAN S. LIPSYC, R.Ph.; KEVIN J. MITCHELL, R.Ph.; DOROTHY S. TEATER, PUBLIC MEMBER; AND JAMES E. TURNER, R.Ph.

 

MORGANNA E. ALLEN WAS REPRESENTED BY J. C. RATLIFF AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

State’s Witnesses

 

1.  Christopher K. Reed, Ohio State Board of Pharmacy

 

Respondent's Witnesses

 

1.  Morganna Elizabeth Allen, R.Ph., Respondent

 

State's Exhibits

 

1.  Notice of Opportunity For Hearing letter  [04-23-03]

1A-1N.  Procedurals

2.  Rite Aid Pharmacy #256 Customer History Report for Morganna E. Allen  [01-01-00 to 12-18-02]

3.  Notarized Statement of Dr. Jacob Dagani  [12-19-02]

4.  Notarized Statement of Dr. Timothy Garner  [02-05-03]

5.  Rx #124649  [06-25-01]

6.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #124649  [06-25-01]

7.  Rx #146409  [02-06-02]

8.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #146409  [03-04-02]

9.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #146409  [04-01-02]

10.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #146409  [06-20-02]

11.  Rx #154436  [04-26-02]

12.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #154436  [04-26-02]

13.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #161928  [07-19-02]

14.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #161928  [08-16-02]

15.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #161928  [09-07-02]

16.  Rx #164043  [08-09-02]

17.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #164043  [08-09-02]

18.  Rx #164060  [08-09-02]

19.  Rx #167189 and Rx #167190  [09-13-02]

20.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #167189 and Rx #167190  [09-13-02]

21.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #167189  [11-27-02]

22.  Rx #170246  [10-16-02]

23.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #170246  [10-16-02]

24.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #170246  [11-11-02]

25.  Rx #171254, Rx #171256 and Rx #171257  [10-28-02]

26.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #171254  [10-28-02]

27.  Rite Aid Customer History Report for Store Technician #1  [03-01-01 to 01-03-03]

28.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #165346  [08-25-02]

29.  Rite Aid Customer History Report for Store Technician #2  [01-01-00 to 12-19-02]

30.  Rite Aid Pharmacy Patient Counseling/Eligibility Form for Rx #125057  [06-29-01]

31.  Rite Aid Pharmacy Aging Will-Call Report  [10-28-02 through 10-29-02]

32.  Statement of Morganna E. Allen  [12-03-02]

33.  Notarized Statement of Sarah Whitehead  [01-29-03]

34.  State of Ohio vs. Morgana (sic) E. Allen, Case No. 04-CR-47, Marion County Common Pleas Court Indictment  [02-13-04]; Entry of Guilty Plea  [08-16-04]; and Judgment Entry of Sen­tencing  [09-24-04]

 

Respondent's Exhibits

 

A-J.  Ten letters of Support  [08-21-04 to 09-24-04]

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the follow­ing to be fact:

 

(1)  Records of the State Board of Pharmacy indicate that Morganna E. Allen was originally licensed by the State of Ohio as a pharmacist on July 27, 1999, pursuant to examination, and is currently licensed to practice pharmacy in Ohio.

 

(2)  Morganna E. Allen did, on or about the following dates, intentionally create and/or knowingly possess false or forged prescriptions, to wit: Morganna E. Allen created the following twenty-one false prescriptions for herself without authoriza­tion from a prescriber:

 

Rx

Drug

Strength

Date

Qty

124649

spironolactone hydrochlorothiazide

25 mg

06/25/01

30

146409

Necon

1/35-28

02/06/02

28

146409-refill

Necon

1/35-28

04/01/02

28

146409-refill

Necon

1/35-28

04/26/02

28

146409-refill

Necon

1/35-28

05/27/02

28

146409-refill

Necon

1/35-28

06/20/02

28

154436

methylprednisolone

4 mg

04/26/02

21

159457

Diflucan

150 mg

06/20/02

2

161928

Necon

1/35-28

07/19/02

28

161928-refill

Necon

1/35-28

08/16/02

28

161928-refill

Necon

1/35-28

09/07/02

28

164043

presdnisone

20 mg

08/09/02

30

164060

erythromycin

333 mg

08/09/02

30

167189

albuterol Inhaler

 

09/13/02

1

167189-refill

albuterol Inhaler

 

11/27/02

1

167190

Cephalexin

500 mg

09/13/02

40

170246

Necon

1/35-28

10/16/02

28

170246-refill

Necon

1/35-28

11/11/02

28

171254

Accu-Chek Active Care Kit

 

10/28/02

1

171256

Accu-Chek Test Strips

 

10/28/02

25

171257

Softclix Lancets

 

10/28/02

25

 

Such conduct is in violation of Section 2925.23 of the Ohio Revised Code.

 

(3)  Morganna E. Allen did, on or about August 25, 2002, intentionally create and/or knowingly possess a false or forged prescription, to wit: Morganna E. Allen created prescription #165346 for ibuprofen 600 mg for a store technician without authori­zation from a prescriber.  Such conduct is in violation of Section 2925.23 of the Ohio Revised Code.

 

(4)  Morganna E. Allen did, on or about August 25, 2002, sell a dangerous drug at retail when the conduct was not in accordance with Chapters 4729. and 4731. of the Ohio Revised Code, to wit: pursuant to false prescription #165346, Morganna E. Allen sold ibuprofen 600 mg to a store technician without authorization from a pre­scriber.  Such conduct is in violation of Section 4729.51(C) of the Ohio Revised Code.

 

(5)  Morganna E. Allen did, on or about June 29, 2001, intentionally create and/or knowingly possess a false or forged prescription, to wit: Morganna E. Allen created prescription #125057 for Veetids 500 mg for a store technician without authoriza­tion from a prescriber.  Such conduct is in violation of Section 2925.23 of the Ohio Revised Code.

 

(6)  Morganna E. Allen did, on or about June 29, 2001, sell a dangerous drug at re­tail when the conduct was not in accordance with Chapters 4729. and 4731. of the Ohio Revised Code, to wit: pursuant to false prescription #125057, Morganna E. Allen sold Veetids 500 mg to a store technician without authorization from a pre­scriber.  Such conduct is in violation of Section 4729.51(C) of the Ohio Revised Code.

 

(7)  Morganna E. Allen did, on or about  June 29, 2001, and/or again on or about August 25, 2002, knowing that she was committing or facilitating a fraud, cause to be presented to an insurer claims for payment which were false and/or deceptive, to wit: Morganna E. Allen caused insurance companies to pay for prescription #125057 and prescription #165346 for employees that did not have insurance cov­erage for these prescriptions.  Such conduct is in violation of Section 2913.47 of the Ohio Revised Code.

 

(8)  Morganna E. Allen did, on or about January 1, 2001, through December 3, 2002, with purpose to deprive, knowingly obtain or exert control over store mer­chandise belonging to Rite Aid beyond the express or implied consent of the owner, to wit: Morganna E. Allen admittedly stole an Accu-chek Active Care Kit, 100 Accu-chek Test Strips, 100 Softclix Lancets, cosmetics, soft drinks, candy, and cigarettes from her employer.  Such conduct is in violation of Section 2913.02 of the Ohio Re­vised Code.

 

CONCLUSIONS OF LAW

 

(1)  The State Board of Pharmacy concludes that paragraphs (2) through (8) of the Find­ings of Fact constitute being guilty of a felony and gross immorality as provided in Division (A)(1) of Section 4729.16 of the Ohio Revised Code.

 

(2)  The State Board of Pharmacy concludes that paragraphs (2) through (8) of the Find­ings of Fact constitute being guilty of dishonesty and unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

(3)  The State Board of Pharmacy concludes that paragraphs (2) through (6) of the Findings of Fact constitute being guilty of willfully violating, conspiring to violate, attempting to violate, or aiding and abetting the violation of provisions of Chapters 2925. and 4729. of the Revised Code as provided in Division (A)(5) of Section 4729.16 of the Ohio Revised Code.

 

DECISION OF THE BOARD

 

Pursuant to Section 4729.16 of the Ohio Revised Code, and after consideration of the record as a whole, the State Board of Pharmacy adjudicates the matter of Morganna E. Allen as fol­lows:

 

(A)  On the basis of the Findings of Fact and the Conclusions of Law set forth above, the State Board of Pharmacy hereby suspends until December 1, 2004, the pharma­cist identification card, No. 03-2-23624, held by Morganna E. Allen effective as of the date of the mailing of this Order.  Morganna E. Allen, pursuant to Rule 4729-9-01(F) of the Ohio Administrative Code, may not be employed by or work in a facility licensed by the State Board of Pharmacy to possess or distribute dangerous drugs during such period of suspension.

 

(B)  On the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Pharmacy hereby imposes on Morganna E. Allen a monetary penalty of one thousand dollars ($1,000.00) due and owing on or before May 1, 2005.  The monetary penalty should be made payable to the “Treasurer, State of Ohio” and mailed with the enclosed form to the State Board of Pharmacy, 77 South High Street, Room 1702, Columbus, Ohio 43215-6126.

 

(C)  On the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Pharmacy hereby places Morganna E. Allen on probation for two years beginning December 1, 2004 with the following conditions:

 

(1)  Morganna E. Allen must obtain two hours (0.2 CEUs) of Board approved continuing pharmacy education in jurisprudence, which may not also be used for license renewal.  Documentation of successful completion must be submit­ted to the Board office before May 1, 2005.

 

(2)  Morganna E. Allen may not dispense prescriptions for herself.

 

(3) The State Board of Pharmacy hereby declares that Morganna E. Allen's phar­macist identification card is not in good standing and thereby denies the privi­lege of being a preceptor and training pharmacy interns pursuant to para­graph (D)(1) of Rule 4729-3-01 of the Ohio Administrative Code.

 

(4)  Morganna E. Allen may not serve as a responsible pharmacist.

 

(5)  Morganna E. Allen must not violate the drug laws of Ohio, any other state, or the federal government.

 

(6)  Morganna E. Allen must abide by the rules of the State Board of Phar­macy.

 

(7)  Morganna E. Allen must comply with the terms of this Order.

 

Any violation of probation may result in a Board hearing to consider alternative or additional sanctions under Section 4729.16 of the Ohio Revised Code.

 

Morganna E. Allen is hereby advised that the Board may at any time revoke probation for cause, modify the conditions of probation, and reduce or extend the period of probation.  At any time during this period of probation, the Board may revoke probation for a violation occurring during the probation period.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Ms. Eastman and approved by the Board (Aye-7/Nay-0).

  5:15 p.m.

The Board meeting was recessed until Tuesday, October 5, 2004.

 

 

TUESDAY, OCTOBER 5, 2004

 

  9:00 a.m.     ROLL CALL

 

The State Board of Pharmacy convened in Room West-B&C, 31st Floor, Vern Riffe Center for Government and the Arts, 77 South High Street, Columbus, Ohio with the following members present:

 

Lawrence J. Kost, R.Ph. (President); Suzanne R. Eastman, R.Ph. (Vice-President); Robert P. Giacalone, R.Ph.; Elizabeth I. Gregg, R.Ph.; Nathan S. Lipsyc, R.Ph.; Kevin J. Mitchell, R.Ph.; Dorothy S. Teater, Public Mem­ber; and James E. Turner, R.Ph.

  9:06 a.m.

The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of creating a record in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of Richard W. Johnson, R.Ph.

  9:08 a.m.

Mr. Braylock arrived and joined the meeting in progress.

  9:20 a.m.

The record in the matter of Richard W. Johnson, R.Ph. was closed.  The Board took a brief recess.

  9:35 a.m.

Mr. Keeley discussed with the Board a set of draft rules from the Ohio Department of Health (ODH) regarding the mandatory reporting by pharmacists of unusual purchasing patterns that might indicate a potential of bioterrorism activities.  After a discussion of the rules and the requirements of the existing law, the Board members had no changes to suggest.  No further action was required.

 

Mr. Keeley then discussed his Legislative report with the Board.

 

R-2005-059    Mr. Keeley next presented a request for Board approval of an electronic prescribing system from Nextgen Electronic Prescribing.  After discussion, Mr. Giacalone moved that the Board find the Nextgen system approvable pending final inspection of the installed product.  The motion was seconded by Mrs. Gregg and approved by the Board (Aye-8/­Nay-0).

 

Mr. Benedict and Mr. Lipsyc presented the Probation Report.  There were no issues re­quiring official action by the Board.

 

After a discussion of the draft minutes from the September, 2004, meeting, Mrs. Gregg moved that the September, 2004, minutes be approved as amended.  The motion was seconded by Mr. Lipsyc and approved by the Board (Aye-8/Nay-0).

 

R-2005-060    Mr. Winsley then asked for Board approval to run for election to the Executive Committee of the National Association of Boards of Pharmacy (NABP) at the NABP Annual Meeting in May, 2005.  Under the new election procedures, it is first necessary to get District approval at the NABP/AACP District IV meeting in November.  After discussion, Mr. Lipsyc moved that the Board approve the candidacy of Mr. Winsley for the NABP District IV Executive Committee seat and that he be granted the time necessary to fulfill the functions of that role should he be elected.  The motion was seconded by Mr. Turner and approved by the Board (Aye-8/Nay-0).

10:18 a.m.

The Board took a brief recess.

10:37 a.m.

The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of Lesley Zimmerman Kennedy, R.Ph., Cincinnati.

11:17 a.m.

The hearing ended and the record was closed.

11:18 a.m.

Mrs. Gregg moved that the Board go into Executive Session for the purpose of the investi­gation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Mr. Braylock and a roll call vote was conducted by President Kost as follows: Braylock-Yes, Eastman-Yes, Giacalone-Yes, Gregg-Yes, Lipsyc-Yes, Mitchell-Yes, Teater-Yes, and Turner-Yes.

11:40 a.m.

R-2005-061    The Executive Session ended and the meeting was opened to the public.  Mrs. Gregg moved that the Board adopt the following Order in the matter of Lesley Zimmerman Kennedy, R.Ph.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-040704-063)

 

In The Matter Of:

 

LESLEY ZIMMERMAN KENNEDY, R.Ph.

845 East Foothill Boulevard

Glendora, California 91741

(R.Ph. No. 03-1-17455)

 

INTRODUCTION

 

THE MATTER OF LESLEY ZIMMERMAN KENNEDY CAME FOR HEARING ON OCTOBER 5, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: LAWRENCE J. KOST, R.Ph.; (presiding); GREGORY BRAYLOCK, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; ELIZABETH I. GREGG, R.Ph.; NATHAN S. LIPSYC, R.Ph.; KEVIN J. MITCHELL, R.Ph.; DOROTHY S. TEATER, PUBLIC MEMBER; AND JAMES E. TURNER, R.Ph.

 

LESLEY ZIMMERMAN KENNEDY WAS NOT REPRESENTED BY COUNSEL AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

State’s Witnesses

 

1.  None

 

Respondent's Witnesses

 

1.  Lesley Zimmerman Kennedy, R.Ph., Respondent

 

State's Exhibits

 

1.  Reinstatement Hearing Request letter from Lesley Z. Kennedy  [04-05-04]

1A-1B.  Procedurals

2A.  State Board of Pharmacy Order in re Lesley Zimmerman Kennedy, R.Ph.  [04-09-03]

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

13. 

14. 

15. 

16. 

17. 

18. 

19. 

20. 

21. 

22. 

 

Respondent's Exhibits

 

A.  Calendar pages for October 2002 to October 2004

B.  C.P.E. Report Form of Lesley Z. Kennedy  [09/18/04]; Continuing Pharmaceutical Education Credits and Certificates  [01-24-04 to 09-18-04]

C.  Support Group Attendance Records  [03-23-03 to 09-24-04]

D.  Letter from Michael R. Handleton, M.D.  [09-24-04]; Foothill Family Practice Medical Group, Inc. Medical Record for Lesley Kennedy  [09-21-04]; Compass Vision Drug Panel  [not dated]; Compass Vision Licensee Summary Report for Lesley Kennedy  [06-11-03 to 09-01-04]; Drug Testing Custody and Control Forms  [06-11-03 to 09-14-04]

E.  Copy of PRO Pharmacist’s Recovery Contract for Lesley Zimmerman Kennedy  [05-16-03]

F. 

 

FINDING OF FACT

 

After having heard the testimony, observed the demeanor of the witness, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds that Lesley Zimmerman Kennedy has complied with the terms set forth in the Order of the State Board of Pharmacy, Docket No. D-021104-025, effective April 9, 2003.

 

DECISION OF THE BOARD

 

On the basis of the Finding of Fact set forth above, and after consideration of the record as a whole, the State Board of Pharmacy hereby approves the reinstatement of the pharmacist identification card, No. 03-1-17455, held by Lesley Zimmerman Kennedy to practice phar­macy in Ohio and places Lesley Zimmerman Kennedy on probation for five years beginning on the effective date of this Order, with the following conditions:

 

(A)  Lesley Zimmerman Kennedy must enter into a new contract, signed within thirty days after the effective date of this Order, with a California Department of Alcohol and Drug Addiction Services treatment provider or a treatment provider acceptable to the Board for a period of not less than five years and submit a copy of the signed contract to the Board office before her pharmacist identification card is issued.  The contract must provide that:

 

(1)  Random, observed urine drug screens shall be conducted at least once each month for the first year and then at least once every three months for the remaining four years.

 

(a)  The urine sample must be given within twelve hours of notifica­tion.  The urine drug screen must include testing for creatinine or specific gravity of the sample as the dilutional standard.

 

(b)  Opiates and synthetic opiates must be added to the standard urine drug screen.

 

(c)  Results of all drug screens must be negative.  Any positive results, including those that may have resulted from ingestion of food, but excluding false positives that resulted from medication legitimately prescribed, indicate a violation of probation.

 

(d)  Refusals of urine screens or diluted urine screens are equiva­lent to a positive result and indicate a violation of probation.

 

(2)  The intervener/sponsor shall provide copies of all drug screen reports to the Board in a timely fashion.

 

(3)  Attendance is required a minimum of three times per week at an Alco­holics Anonymous, Narcotics Anonymous, and/or similar support group meeting.

 

(4)  The program shall immediately report to the Board any violations of the contract and/or lack of cooperation.

 

(B)  Lesley Zimmerman Kennedy must submit quarterly progress reports to the Board (due January 10, April 10, July 10, and October 10 of each year of probation) that include:

 

(1)  The written report and documentation provided by the treatment pro­gram pursuant to the contract, and

 

(2)  A written description of Lesley Zimmerman Kennedy's progress towards recovery and what Lesley Zimmerman Kennedy has been doing during the previous three months.

 

(C)  Other terms of probation are as follows:

 

(1) The State Board of Pharmacy hereby declares that Lesley Zimmerman Kennedy's pharmacist identi­fication card is not in good standing and thereby denies the privilege of being a preceptor and training pharmacy interns pursuant to paragraph (D)(1) of Rule 4729-3-01 of the Ohio Admini­strative Code.

 

(2)  Lesley Zimmerman Kennedy may not serve as a responsible pharmacist.

 

(3)  Lesley Zimmerman Kennedy may not destroy, assist in, or witness the destruction of controlled substances.

 

(4)  Lesley Zimmerman Kennedy must abide by the contract with her treat­ment provider and must immediately report any violation of the contract to the Board.

 

(5)  Lesley Zimmerman Kennedy must not violate the drug laws of Ohio, any other state, or the federal government.

 

(6)  Lesley Zimmerman Kennedy must abide by the rules of the State Board of Pharmacy.

 

(7)  Lesley Zimmerman Kennedy must comply with the terms of this Order.

 

(D) Any violation of probation may result in a Board hearing to consider alternative or additional sanctions under Section 4729.16 of the Ohio Revised Code.

 

Lesley Zimmerman Kennedy is hereby advised that the Board may at any time revoke proba­tion for cause, modify the conditions of probation, and reduce or extend the period of pro­bation.  At any time during this period of probation, the Board may revoke probation for a violation occurring during the probation period.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Mr. Braylock and approved by the Board (Aye-8/Nay-0).

 

R-2005-062    Mr. Giacalone then moved that the Board adopt the following Order in the matter of Richard W. Johnson, R.Ph.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-040805-009)

 

In The Matter Of:

 

RICHARD W. JOHNSON, R.Ph.

19205 Shawnee Avenue

Cleveland, Ohio 44119

(R.Ph. No. 03-3-03936)

 

INTRODUCTION

 

THE MATTER OF RICHARD W. JOHNSON CAME FOR CONSIDERATION ON OCTOBER 5, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: LAWRENCE J. KOST, R.Ph. (presiding); SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph., ELIZABETH I. GREGG, R.Ph.; NATHAN S. LIPSYC, R.Ph.; KEVIN J. MITCHELL, R.Ph., DOROTHY S. TEATER, PUBLIC MEMBER; AND JAMES E. TURNER, R.Ph.

 

RICHARD W. JOHNSON WAS NOT PRESENT NOR WAS HE REPRESENTED BY COUNSEL AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

State’s Witnesses

 

1.  James Reye, Ohio State Board of Pharmacy 

 

Respondent's Witnesses

 

None

 

State's Exhibits

 

1.  Notice of Opportunity For Hearing letter  [08-05-04]

1A.  Procedural

2.  Notarized Statement of Richard W. Johnson  [06-24-04]

3.  Ohio State Board of Pharmacy Brief in the matter of Richard Wilbur Johnston  [not dated]

 

Respondent's Exhibits

 

None

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witness, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the follow­ing to be fact:

 

(1)  On August 5, 2004, Richard W. Johnson was notified by letter of his right to a hearing, his rights in such hearing, and his right to submit any contentions in writing.

 

(2)  As demonstrated by return receipt dated August 9, 2004, Richard W. Johnson received the letter of August 5, 2004, informing him of the allegations against him and his rights.

 

(3)  Richard W. Johnson has not responded in any manner to the letter of August 5, 2004, and has not requested a hearing in this matter, therefore the matter was refer­red to the Board for consideration.

 

(4)  Records of the State Board of Pharmacy indicate that Richard W. Johnson was originally licensed by the State of Ohio as a pharmacist on February 6, 1945, pursuant to examination, and is currently licensed to practice pharmacy in Ohio.  Records further reflect that Richard W. Johnson was previously disciplined by the Board.

 

(5)  Richard W. Johnson did, from November, 2003, through May 19, 2004, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of CVS, beyond the express or implied consent of CVS, to wit: Richard W. Johnson admittedly stole approximately 40 unit doses of Viagra 100 mg tablets.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

CONCLUSION OF LAW

 

The State Board of Pharmacy concludes that paragraph (5) of the Find­ings of Fact consti­tutes being guilty of dishonesty and unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

DECISION OF THE BOARD

 

Pursuant to Section 4729.16 of the Ohio Revised Code, and after consideration of the record as a whole, the State Board of Pharmacy adjudicates the matter of Richard W. Johnson as fol­lows:

 

(A)  Based on the foregoing Findings of Fact and Conclusion of Law, the State Board of Pharmacy hereby reprimands Richard W. Johnson for his conduct in this matter.

 

(B)  On the basis of the Findings of Fact and Conclusion of Law set forth above, the State Board of Pharmacy hereby imposes on Richard W. Johnson a monetary penalty of one hundred fifty dollars ($150.00) due and owing within thirty days of the issu­ance of this Order.  The monetary penalty should be made payable to the “Treas­urer, State of Ohio” and mailed with the enclosed form to the State Board of Phar­macy, 77 South High Street, Room 1702, Columbus, Ohio 43215-6126

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Mrs. Gregg and approved by the Board (Aye-6/Nay-1/­Abstain-1[Braylock]).

 

R-2005-063    Mr. Giacalone moved that the Board summarily suspend the license to practice pharmacy belonging to Ronald Heath Stevens, R.Ph. (03-3-21936) due to the fact that a continua­tion of his professional practice presents a danger of immediate and serious harm to others.  The motion was seconded by Mr. Braylock and approved by the Board (Aye-8/­Nay-0).

 

R-2005-064    Mrs. Gregg then moved that the Board summarily suspend the license to practice phar­macy belonging to Bradley Allen Schwartz, R.Ph. (03-2-26247) due to the fact that a con­tinuation of his professional practice presents a danger of immediate and serious harm to others.  The motion was seconded by Mr. Braylock and approved by the Board (Aye-8/­Nay-0).

11:47 a.m.

The Board recessed for lunch.

  1:30 p.m.

The Board convened in Room South-A, 31st Floor, Vern Riffe Center for Government and the Arts, 77 South High Street, Columbus, Ohio, for the purpose of meeting with the candidates for licensure by reciprocity with the following members present:

 

Lawrence J. Kost, R.Ph. (President); Suzanne R. Eastman, R.Ph. (Vice-President); Gregory Braylock, R.Ph.; Robert P. Giacalone, R.Ph.; Elizabeth I. Gregg, R.Ph.; Nathan S. Lipsyc, R.Ph.; Kevin J. Mitchell, R.Ph.; Dorothy S. Teater, Public Mem­ber; and James E. Turner, R.Ph.

 

R-2005-065    Following presentations by Board members and self-introductions by the candidates for licensure by reciprocity, the following candidates participated in a discussion of phar­macy laws and rules with Mr. McMillen and were then presented with their pharmacist identification cards.

 

SHARON MARIE BAKER

03-2-26554

INDIANA

NABEELA SAFDAR GILL

03-2-26501

INDIANA

DANIEL CHRISTOPHER LANE

03-2-26564

NORTH CAROLINA

SHARON BETH LEGG MILLER

03-2-26541

GEORGIA

JOSEPH BARRY NEMETH

03-2-26563

NEW JERSEY

MARTIN M. NJOKU

03-2-26505

WEST VIRGINIA

IRINA SILVER

03-2-26393

MARYLAND

AUTUMN LYN STEWART

03-2-26555

PENNSYLVANIA

ROBERT CARL STOVER

03-2-26561

TENNESSEE

TIMOTHY WAYNE SYLVESTER

03-2-26557

MICHIGAN

JAMES ALAN WEHMEYER

03-2-26559

INDIANA

  2:06 p.m.

The Board reconvened in Room West-B&C.  The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of Richard J. Berning, R.Ph., Batavia.

  3:00 p.m.

The hearing ended and the record was closed.  The Board took a brief recess.

  3:10 p.m.

Mrs. Gregg moved that the Board go into Executive Session for the purpose of the investi­gation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Mr. Braylock and a roll call vote was conducted by President Kost as follows: Braylock-Yes, Eastman-Yes, Giacalone-Yes, Gregg-Yes, Lipsyc-Yes, Mitchell-Yes, Teater-Yes, and Turner-Yes.

  3:18 p.m.

R-2005-066    The Executive Session ended and the meeting was opened to the public.  Ms. Eastman moved that the Board adopt the following Order in the matter of Richard J. Berning, R.Ph.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-031208-039)

 

In The Matter Of:

 

RICHARD J. BERNING, R.Ph.

4000 St. Rt. 132

Batavia, Ohio 45103

(R.Ph. No. 03-3-11901)

 

INTRODUCTION

 

THE MATTER OF RICHARD J. BERNING CAME FOR HEARING ON TUESDAY, OCTOBER 5, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: LAWRENCE J. KOST, R.Ph.; (presiding); GREGORY BRAYLOCK, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; ELIZABETH I. GREGG, R.Ph.; NATHAN S. LIPSYC, R.Ph.; KEVIN J. MITCHELL, R.Ph.; DOROTHY S. TEATER, PUBLIC MEMBER; AND JAMES E. TURNER, R.Ph.

 

RICHARD J. BERNING WAS REPRESENTED BY JAMES LINDON AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

State’s Witnesses

 

1.   Kevin J. Kinneer, Ohio State Board of Pharmacy

 

Respondent's Witnesses

 

1.  Richard J. Berning, R.Ph., Respondent

 

State's Exhibits

 

1.  Notice of Opportunity For Hearing letter  [12-09-03]

1A-1F.  Procedurals

2.  License lapse notification letter to Richard J. Berning  [09-05-03]

3.  Renewal Application for Pharmacist License of Richard J. Berning  [09-10-03]; C.P.E. Report Form  [09-10-03]; Copy of Power-Pak C.E. Statement of C.P.E. Credit  [10-01-03]

4.  CVS Pharmacy #5431 Prescription Register report  [09-17-03]

5.  CVS Pharmacy #5431 Prescription Register and Edited Prescriptions reports  [09-21-03]

6.  CVS Pharmacy #5431 Prescription Register report  [09-22-03]

7.  CVS Pharmacy #5431 Prescription Register and Edited Prescriptions reports  [09-25-03]

8.  CVS Pharmacy #5431 Prescription Register report  [09-26-03]

9.  CVS Pharmacy #5431 Prescription Register report  [09-27-03]

10.  CVS Pharmacy #5431 Prescription Register and Edited Prescriptions reports  [09-30-03]

 

Respondent's Exhibits

 

A.  Richard Berning Timeline  [09-04-03 to 10-01-03]

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the follow­ing to be fact:

 

(1)  Records of the State Board of Pharmacy indicate that Richard J. Berning was ori­ginally licensed by the State of Ohio as a pharmacist on August 4, 1976, pursuant to examination, and is currently licensed to practice pharmacy in Ohio.

 

(2)  Richard J. Berning did, on or about September 17, 2003, while not a pharmacist, dispense or sell dangerous drugs or otherwise engage in the practice of pharmacy, to wit: after allowing his license to practice pharmacy to lapse, and after having been warned against practicing pharmacy without a license, Richard J. Berning dis­pensed prescriptions as indicated on the daily dispensing log sheet.  Such conduct is in viola­tion of Section 4729.28 of the Ohio Revised Code.

 

(3)  Richard J. Berning did, on or about September 21, 2003, while not a pharmacist, dispense or sell dangerous drugs or otherwise engage in the practice of pharmacy, to wit: after allowing his license to practice pharmacy to lapse, and after having been warned against practicing pharmacy without a license, Richard J. Berning dis­pensed prescriptions as indicated on the daily dispensing log sheet.  Such conduct is in viola­tion of Section 4729.28 of the Ohio Revised Code.

 

(4)  Richard J. Berning did, on or about September 22, 2003, while not a pharmacist, dispense or sell dangerous drugs or otherwise engage in the practice of pharmacy, to wit: after allowing his license to practice pharmacy to lapse, and after having been warned against practicing pharmacy without a license, Richard J. Berning dis­pensed prescriptions as indicated on the daily dispensing log sheet.  Such conduct is in viola­tion of Section 4729.28 of the Ohio Revised Code.

 

(5)  Richard J. Berning did, on or about September 25, 2003, while not a pharmacist, dispense or sell dangerous drugs or otherwise engage in the practice of pharmacy, to wit: after allowing his license to practice pharmacy to lapse, and after having been warned against practicing pharmacy without a license, Richard J. Berning dis­pensed prescriptions as indicated on the daily dispensing log sheet.  Such conduct is in viola­tion of Section 4729.28 of the Ohio Revised Code.

 

(6)  Richard J. Berning did, on or about September 26, 2003, while not a pharmacist, dispense or sell dangerous drugs or otherwise engage in the practice of pharmacy, to wit: after allowing his license to practice pharmacy to lapse, and after having been warned against practicing pharmacy without a license, Richard J. Berning dis­pensed prescriptions as indicated on the daily dispensing log sheet.  Such conduct is in viola­tion of Section 4729.28 of the Ohio Revised Code.

 

(7)  Richard J. Berning did, on or about September 27, 2003, while not a pharmacist, dispense or sell dangerous drugs or otherwise engage in the practice of pharmacy, to wit: after allowing his license to practice pharmacy to lapse, and after having been warned against practicing pharmacy without a license, Richard J. Berning dis­pensed prescriptions as indicated on the daily dispensing log sheet.  Such conduct is in viola­tion of Section 4729.28 of the Ohio Revised Code.

 

(8)  Richard J. Berning did, on or about September 30, 2003, while not a pharmacist, dispense or sell dangerous drugs or otherwise engage in the practice of pharmacy, to wit: after allowing his license to practice pharmacy to lapse, and after having been warned against practicing pharmacy without a license, Richard J. Berning dis­pensed prescriptions as indicated on the daily dispensing log sheet.  Such conduct is in viola­tion of Section 4729.28 of the Ohio Revised Code.

 

CONCLUSIONS OF LAW

 

(1)  The State Board of Pharmacy concludes that paragraphs (2) through (8) of the Find­ings of Fact constitute being guilty of dishonesty and unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

(2)  The State Board of Pharmacy concludes that paragraphs (2) through (8) of the Find­ings of Fact constitute being guilty of willfully violating, conspiring to violate, attempt­ing to violate, or aiding and abetting the violation of provisions of Chapter 4729. of the Revised Code as provided in Division (A)(5) of Section 4729.16 of the Ohio Revised Code.

 

DECISION OF THE BOARD

 

Pursuant to Section 4729.16 of the Ohio Revised Code, and after consideration of the record as a whole, the State Board of Pharmacy hereby adjudicates the matter of Richard J. Berning as follows:

 

(A)  On the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Pharmacy hereby imposes a monetary penalty of one thousand dollars ($1,000.00) on Richard J. Berning and payment of the monetary penalty is due and owing within thirty days of the mailing of this Order. The remittance should be made payable to the “Treasurer, State of Ohio” and mailed with the enclosed form to the State Board of Pharmacy, 77 South High Street, Room 1702, Columbus, Ohio 43215-6126.

 

(B)  On the basis of the Findings of Fact and Conclusions of Law set forth above, the State Board of Pharmacy hereby places Richard J. Berning on pro­bation for two years from the effective date of this Order with the following condi­tions:

 

(1)  Richard J. Berning must obtain, within two years from the effective date of this Order, two hours (0.2 CEUs) of Board approved continuing pharmacy edu­cation in Jurisprudence, which may not also be used for license renewal.  If proof of successful completion is not sub­mitted to the Board office before the end of the probation period, Richard J. Berning will remain on probation until this condition is achieved.

 

(2)  Richard J. Berning will be audited for two continuing pharmacy educa­tion cycles.

 

(3)  Richard J. Berning's license is deemed not in good standing until suc­cess­ful com­ple­tion of the probationary period.

 

(4)  Richard J. Berning must not violate the drug laws of Ohio, any other state, or the federal government.

 

(5)  Richard J. Berning must abide by the rules of the State Board of Phar­macy.

 

(6)  Richard J. Berning must comply with the terms of this Order.

 

(7)  Any violation of probation may result in a Board hearing to consider alter­native or addi­tional sanctions under Section 4729.16 of the Ohio Revised Code.

 

Richard J. Berning is hereby advised that the Board may at any time revoke pro­bation for cause, modify the conditions of probation, and reduce or extend the period of pro­bation.  At any time during this period of probation, the Board may revoke probation for a violation occurring during the probation period.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Mr. Turner and approved by the Board (Aye-6/Nay-2).

 

R-2005-067    The Board then considered a request for an exemption from OAC Rule 4729-5-10 (Pick-up station) received from the following sites:

 

Teregen Labs (02-1235150)

Numerous additional Physician Offices noted on the letter of request

 

After discussion, Mrs. Gregg moved that the Board approve the request.  The motion was seconded by Mr. Braylock and approved by the Board (Aye-8/Nay-0).

 

R-2005-068    The Board next considered a request for an exemption from OAC Rule 4729-5-10 (Pick-up station) received from the following sites:

 

Medic Pharmacy Services (02-1283700)

Central Admixture Pharmacy Services (02-1312700)

 

After discussion, Mr. Giacalone moved that the Board approve the request.  The motion was seconded by Mr. Braylock and approved by the Board (Aye-7/Nay-0/Abstain-1[Lipsyc]).

  3:30 p.m.

The meeting was recessed until Wednesday, October 6, 2004.

 

 

WEDNESDAY, OCTOBER 6, 2004

 

  8:56 a.m.     ROLL CALL

 

The State Board of Pharmacy convened in Room West-B&C, 31st Floor, Vern Riffe Center for Government and the Arts, 77 South High Street, Columbus, Ohio with the following members present:

 

Lawrence J. Kost, R.Ph. (President); Gregory Braylock, R.Ph.; Robert P. Giacalone, R.Ph.; Elizabeth I. Gregg, R.Ph.; Nathan S. Lipsyc, R.Ph.; Kevin J. Mitchell, R.Ph.; and Dorothy S. Teater, Public Mem­ber.

  9:00 a.m.

R-2005-069    Mr. Keeley then asked for Board approval to run for election to the Executive Committee of the National Association of State Controlled Substance Authorities (NASCSA) at the upcoming NASCSA Meeting should the opportunity arise.  After discussion, Mr. Giacalone moved that the Board approve the candidacy of Mr. Keeley for the NASCSA Executive Committee seat.  The motion was seconded by Mrs. Gregg and approved by the Board (Aye-6/Nay-0).

  9:13 a.m.

Ms. Eastman arrived and joined the meeting in progress.

  9:15 a.m.

The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of Scott David Beach, R.Ph., Bluffton.  Having recused himself from this hearing, Mr. Turner was not present.

11:38 a.m.

The hearing ended and the record was closed.  The Board took a brief recess.

11:40 a.m.

Mr. Turner arrived and joined the meeting in progress.

11:45 a.m.

The Board was joined by Assistant Attorney General Sally Ann Steuk for the purpose of conducting an adjudication hearing in accordance with Ohio Revised Code Chapters 119. and 4729. in the matter of Matthew S. Lewandowski, Pharmacy Intern, Chagrin Falls.

11:59 a.m.

The hearing ended and the record was closed.

 

R-2005-070    Mr. Winsley presented a request from Mercy Health Partners, Fairfield for approval of a method of signing post-discharge charts that had been optically scanned.  After dis­cussion, Ms. Eastman moved that the Board approve the proposal on a temporary basis until another, more acceptable, positive identification system is implemented or until 2006, which­ever comes first.  In addition, the Director of Pharmacy or a person desig­nated by the Director of Pharmacy is to be involved in all discrepancies involving medica­tion orders.  The motion was seconded by Mrs. Gregg and approved by the Board (Aye-8/­Nay-0).

12:15 p.m.

Mrs. Gregg moved that the Board go into Executive Session for the purpose of the investi­gation of complaints regarding licensees and registrants pursuant to Section 121.22(G)(1) of the Revised Code.  The motion was seconded by Mr. Giacalone and a roll call vote was conducted by President Kost as follows: Braylock-Yes, Eastman-Yes, Giacalone-Yes, Gregg-Yes, Lipsyc-Yes, Mitchell-Yes, Teater-Yes, and Turner-Yes.

12:32 p.m.

R-2005-071    The Executive Session ended and the meeting was opened to the public.  Mr. Braylock then moved that the Board adopt the following Order in the matter of Matthew S. Lewandowski, Pharmacy Intern:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-040806-010)

 

In The Matter Of:

 

MATTHEW S. LEWANDOWSKI

3566 Indian Road

Toledo, Ohio 43606

(D.O.B. 05/12/80)

 

INTRODUCTION

 

THE MATTER OF MATTHEW S. LEWANDOWSKI CAME FOR HEARING ON OCTOBER 6, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: LAWRENCE J. KOST, R.Ph.; (presiding); GREGORY BRAYLOCK, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; ELIZABETH I. GREGG, R.Ph.; NATHAN S. LIPSYC, R.Ph.; KEVIN J. MITCHELL, R.Ph.; DOROTHY S. TEATER, PUBLIC MEMBER; AND JAMES E. TURNER, R.Ph.

 

MATTHEW S. LEWANDOWSKI WAS NOT REPRESENTED BY COUNSEL AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

State’s Witnesses

 

1.  Dale Fritz, Ohio State Board of Pharmacy

 

Respondent's Witnesses

 

1.  Matthew S. Lewandowski, Respondent

 

State's Exhibits

 

1.  Proposal to Deny/Notice of Opportunity For Hearing letter  [08-06-04]

1A-1C.  Procedurals

2.  Application For Examination As A Pharmacist with attachments submitted by Matthew S. Lewandowski  [06-22-04]

 

Respondent's Exhibits

 

A.  Statement of Matthew Lewandowski  [not dated]

B-C.  Two Letters of Support  [07-19-04 to 09-20-04]

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the follow­ing to be fact:

 

(1)  Records of the State Board of Pharmacy indicate that Matthew S. Lewandowski submitted an Application For Examination As A Pharmacist on or about June 22, 2004.  Records further indicate that Matthew S. Lewandowski was originally licensed as a pharmacy intern in Ohio on November 20, 2001 and holds a current license (06-0-03259) to practice as an intern.

 

(2)  Matthew S. Lewandowski did, on or about September 20, 2003, knowingly make a false statement with purpose to secure the issuance of a license or registration, to wit: Matthew S. Lewandowski indicated on his pharmacy intern renewal application that he had not been charged with a crime when in fact he had been charged with a crime of theft in violation of Section 2913.02 of the Ohio Revised Code, a misde­meanor of the first degree.  Matthew S. Lewandowski completed a diversion pro­gram in December, 2002.  Such conduct is in violation of Section 2921.13 of the Ohio Revised Code.

 

CONCLUSION OF LAW

 

The State Board of Pharmacy concludes that paragraph (2) of the Find­ings of Fact consti­tutes being guilty of committing fraud, misrepresentation, or deception in applying for or securing a license or identification card issued by the Board under Chapter 4729. of the Revised Code as provided in Division (A)(10) of Section 4729.16 of the Ohio Revised Code.

 

DECISION OF THE BOARD

 

Pursuant to Section 4729.08 of the Ohio Revised Code, and after consideration of the record as a whole, the State Board of Pharmacy hereby approves the Application for Exami­nation As A Pharmacist submitted by Matthew S. Lewandowski on or about June 22, 2004 and repri­mands Matthew S. Lewandowski for his conduct in this matter..

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Mr. Mitchell and approved by the Board (Aye-8/Nay-0).

 

R-2005-072    Mr. Braylock moved that the Board adopt the following Order in the matter of Scott David Beach, R.Ph.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-031105-031)

 

In The Matter Of:

 

SCOTT DAVID BEACH, R.Ph.

157 Garmatter Street

Bluffton, Ohio 45817

(R.Ph. No. 03-1-22728)

 

INTRODUCTION

 

THE MATTER OF SCOTT DAVID BEACH CAME FOR HEARING ON OCTOBER 6, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: LAWRENCE J. KOST, R.Ph. (presiding); GREGORY BRAYLOCK, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ROBERT P. GIACALONE, R.Ph.; ELIZABETH I. GREGG, R.Ph.; NATHAN S. LIPSYC, R.Ph.; KEVIN J. MITCHELL, R.Ph.; AND DOROTHY S. TEATER, PUBLIC MEMBER.

 

SCOTT DAVID BEACH WAS REPRESENTED BY DAVID W. GRAUER AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

State’s Witnesses

 

1.  Todd Knauss, Ohio State Board of Pharmacy

 

Respondent's Witnesses

 

1.  Scott David Beach, R.Ph., Respondent

 

State's Exhibits

 

1.  Summary Suspension Order/Notice of Opportunity For Hearing letter  [11-05-03]

1A-1D.  Procedurals

1E.  Addendum Notice  [03-31-04]

1F-1H.  Procedurals

1I.  Addendum Notice  [06-29-04]

1J.  Procedural

2.  Notarized Statement of Scott Beach  [10-16-03]

3.  LabCorp Drug Screen Report for Scott D. Beach  [10-16-03]

4.  Rx #2205343  [10-11-03]; Patient Record for Chris Kohli  [10-11-03]

5.  Three photocopies of a stock bottle labeled as containing 100 hydrocodone bitartrate and acetaminophen tablets 10/500 mg  [not dated]

6.  Two photocopies of a medicine vial  [not dated]

7.  Two surveillance photocopies  [10-14-03]

8.  Two surveillance photocopies  [10-15-03]

9.  Audit Report of Greg’s Pharmacy, Bluffton and Greg’s Pharmacy, Pandora  [05-01-01 to 10-22-03]

10.  Bill of Information and Judgment Entry for Intervention in Lieu of Conviction, State of Ohio vs. Scott D. Beach, Allen County Common Pleas Court, Case No. CR 2004 0170  [04-21-04]

 

Respondent's Exhibits

 

A.  Treatment Compliance letter from Donna Robinson, BSW, CCDC I  [09-29-04]

B.  Treatment Compliance letter from Deb Kline, RN, CARN  [11-06-03]

C.  PRO Pharmacist's Recovery Contract for Scott Beach  [12-01-03]

D.  LabCorp Drug Screen Report  [02-19-04]; Compass Vision Licensee Summary Report  [02-19-04 to 09-21-04]; Medtox Laboratories Specimen Donor Receipt  [01-14-04]

E.  Support Group Attendance Records  [10-22-03 to 09-29-04]

F.  Fax Transmission cover sheet from ProMedica Health System  [10-05-04];The Toledo Hospital Alcohol and Drug Treatment Center Patient Discharge Recommendations/­Plan/Agreement for Scott Beach  [04-02-04]; After Care Attendance Records  [01-05-04 to 09-28-04]

G.  Allen County Adult Probation Status Report for Scott Beach  [09-29-04]; Drug Tests Report  [04-21-04 to 09-30-04]; Conditions of Community Control  [04-21-04]; Judgment Entry, State of Ohio vs. Scott D. Beach, Case No. CR 2004 0170, Allen County Com­mon Pleas Court  [04-21-04]

H-O.  Eight letters of support  [09-30-04 through 10-01-04]

 

FINDINGS OF FACT

 

After having heard the testimony, observed the demeanor of the witnesses, considered the evidence, and weighed the credibility of each, the State Board of Pharmacy finds the follow­ing to be fact:

 

(1)  Records of the State Board of Pharmacy indicate that Scott David Beach was origi­nally licensed by the State of Ohio as a pharmacist on November 12, 1997, pursuant to examination, and that his license to practice pharmacy in Ohio was sum­marily sus­pended on November 5, 2003.

 

(2)  Scott David Beach is addicted to or abusing drugs to such a degree as to render him unfit to practice pharmacy within the meaning of Sections 3719.121 and 4729.16 of the Ohio Revised Code, to wit: Scott David Beach has admitted to Board agents that he is addicted to hydrocodone and oxycodone.  Scott David Beach has stolen controlled substances, and forged a prescription to hide his thefts, for his personal abuse of the drugs.

 

(3)  Scott David Beach did, on or about October 14, 2003, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of Greg's Phar­macy, beyond the express or implied consent of the owner, to wit: Scott David Beach was observed on video tape, and admitted to, stealing five doses of OxyCon­tin 80 mg, a Schedule II controlled substance.  Such conduct is in violation of Sec­tion 2913.02 of the Ohio Revised Code.

 

(4)  Scott David Beach did, on or about October 15, 2003, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of Greg's Phar­macy, beyond the express or implied consent of the owner, to wit: Scott David Beach was observed on video tape, and admitted to, stealing seven doses of Oxy­Contin 80 mg, a Schedule II controlled substance.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(5)  Scott David Beach did, on or about October 16, 2003, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of Greg's Phar­macy, beyond the express or implied consent of the owner, to wit: Scott David Beach admittedly stole eight doses of OxyContin 80 mg, a Schedule II controlled substance.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(6)  Scott David Beach did, on or about October 11, 2003, intentionally create and/or knowingly possess a false or forged prescription, to wit: Scott David Beach admittedly created, and kept on file at the pharmacy, prescription #2205343, writ­ten for 90 doses of OxyContin 80 mg, a Schedule II controlled substance, so as to conceal his thefts and abuse of the drug.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(7)  Scott David Beach did, on or about May 1, 2001, through October 22, 2003, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the pro­perty of Greg’s Pharmacy, 126 North Main Street, Bluffton, Ohio, beyond the express or implied consent of the owner, to wit: Scott David Beach has admitted stealing drugs from his employer.  Audit figures show shortages for the following con­trolled sub­stances:

 

Drug

Strength

Schedule

Shortage

OxyIR

5 mg

II

261

oxycodone

5 mg

II

420

oxycodone/APAP

5/325 mg

II

2097

Percocet

10/650 mg

II

309

Percocet

5/325 mg

II

21

Percocet

7.5/325 mg

II

200

Percocet

10/325 mg

II

1

oxycodone/APAP

5/500 mg

II

2000

OxyContin

80 mg

II

351

OxyContin

40 mg

II

84

OxyContin

10 mg

II

25

Tylox

5/500 mg

II

201

hydrocodone/APAP

5/500 mg

III

956

hydrocodone/APAP

10/500 mg

III

6993

hydrocodone/APAP

10/650 mg

III

8216

Lorcet

10/650 mg

III

740

Vicodin

5/500 mg

III

716

Vicoprofen

7.5/200 mg

III

1564

propoxyphene HCL

65 mg

IV

1525

 

Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(8)  Scott David Beach did, on or about May 10, 2001, through October 20, 2003, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the pro­perty of Greg’s Pharmacy, 112 East Main Street, Pandora, Ohio, beyond the express or implied consent of the owner, to wit: Scott David Beach has admitted stealing drugs from his employer.  Audit figures show shortages for the following controlled sub­stances:

 

Drug

Strength

Schedule

Shortage

OxyContin

80 mg

II

29

OxyContin

40 mg

II

10

 

Such conduct is in violation of Section 2913.02 of the Ohio Revised

 

(9)  On April 21, 2004, Scott David Beach pled guilt to one count of Theft of Drugs, a felony of the fourth degree under Divisions (A)(1) and (B)(6) of Section 2913.02 of the Ohio Revised Code.  On the same date, Scott David Beach was granted Interven­tion in Lieu of Convic­tion.  State of Ohio vs. Scott D. Beach, Case No. CR 2004 0170, Allen County Common Pleas Court.

 

CONCLUSIONS OF LAW

 

(1)  The State Board of Pharmacy concludes that paragraphs (2) through (9) of the Find­ings of Fact constitute being guilty of a felony and gross immorality as provided in Division (A)(1) of Section 4729.16 of the Ohio Revised Code.

 

(2)  The State Board of Pharmacy concludes that paragraphs (2) through (8) of the Find­ings of Fact constitute being guilty of dishonesty and unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.

 

(3)  The State Board of Pharmacy concludes that paragraph (2) of the Find­ings of Fact constitutes being addicted to or abusing liquor or drugs or impaired physically or men­tally to such a degree as to render him unfit to practice pharmacy as pro­vided in Divi­sion (A)(3) of Section 4729.16 of the Ohio Revised Code.

 

DECISION OF THE BOARD

 

Pursuant to Section 3719.121 of the Ohio Revised Code, the State Board of Pharmacy hereby removes the Summary Suspension Order issued to Scott David Beach on November 5, 2003.

 

Pursuant to Section 4729.16 of the Ohio Revised Code, and after consideration of the record as a whole, the State Board of Pharmacy hereby suspends indefinitely the pharmacist identi­fication card, No. 03-1-22728, held by Scott David Beach and such suspension is effective as of the date of the mailing of this Order.

 

(A)  Scott David Beach, pursuant to Rule 4729-9-01(F) of the Ohio Administrative Code, may not be employed by or work in a facility licensed by the State Board of Pharmacy to possess or distribute dangerous drugs during such period of suspen­sion.

 

(B)  Scott David Beach, pursuant to Section 4729.16(B) of the Ohio Revised Code, must return his identification card and license (wall certificate) to the office of the State Board of Pharmacy within ten days after receipt of this Order unless the Board office is already in possession of both.  The identification card and wall certificate should be sent by certified mail, return receipt requested.

 

Further, two years from the effective date of Scott David Beach’s Summary Suspen­sion Order, the Board will consider any petition filed by Scott David Beach for a hear­ing, pursuant to Ohio Revised Code Chapter 119., for reinstatement.  The Board will only consider rein­statement of the license to practice pharmacy in Ohio if the following conditions have been met:

 

(A)  Scott David Beach must enter into a new contract, signed within thirty days after the effective date of this Order, with an Ohio Department of Alcohol and Drug Addic­tion Services (ODADAS) treatment provider or a treatment provider acceptable to the Board for a period of not less than five years and, upon signing, mail a copy of the contract to the Board office.  The contract must provide that:

 

(1)  Random, observed urine drug screens shall be conducted at least once each month.

 

(a)  The urine sample must be given within twelve hours of notifica­tion.  The urine drug screen must include testing for creatinine or specific gravity of the sample as the dilutional standard.

 

(b)  Oxycodone must be added to the standard urine drug screen.

 

(c)  Results of all drug screens must be negative.  Refusal of a drug screen or a diluted drug screen is equivalent to a positive result.  Any positive results, including those which may have resulted from ingestion of food, but excluding false positives which resulted from medication legitimately prescribed, indicates a violation of the con­tract.

 

(2)  Attendance is required a minimum of three times per week at an Alco­holics Anonymous, Narcotics Anonymous, and/or similar support group meeting.

 

(3)  The program shall immediately report to the Board any violations of the con­tract and/or lack of cooperation.

 

(B)  Scott David Beach must demonstrate satisfactory proof to the Board that he is no longer addicted to or abusing drugs or impaired physically or mentally to such a de­gree as to render him unfit to practice pharmacy.

 

(C)  Scott David Beach must provide, at the reinstatement petition hearing, docu­men­tation of the following:

 

(1)  Payment to Greg’s Pharmacy of any outstanding restitution, or a pay­ment plan approved by Greg's Pharmacy;

 

(2)  Compliance with the contract required above (e.g.-proof of giving the sam­ple within twelve hours of notification and copies of all drug screen reports, meeting attendance records, treatment program reports, etc.);

 

(3)  Compliance with the continuing pharmacy education requirements set forth in Chapter 4729-7 of the Ohio Administrative Code as applicable and in effect on the date of petitioning the Board for reinstatement;

 

(4)  Compliance with the terms of this Order.

 

(D)  If reinstatement is not accomplished within three years of the effective date of this Order, Scott David Beach must also show successful completion of the NAPLEX exami­nation or an equivalent examination approved by the Board.

 

THIS ORDER WAS APPROVED BY A VOTE OF THE STATE BOARD OF PHARMACY.

MOTION CARRIED.

SO ORDERED.

 

The motion was seconded by Mr. Lipsyc and approved by the Board (Aye-7/Nay-0/­Abstain-1[Turner]).

12:35 p.m.

Mr. Giacalone moved that the Board receive Per Diem as follows:

 

PER DIEM

10/4

10/5

10/6

Total

Braylock

1

1

1

3

Eastman

1

1

1

3

Giacalone

-

1

1

2

Gregg

1

1

1

3

Kost

1

1

1

3

Lipsyc

1

1

1

3

Mitchell

1

1

1

3

Teater

1

1

1

3

Turner

1

1

1

3

 

The motion was seconded by Mrs. Gregg and approved by the Board (Aye-8/Nay-0).

12:36 p.m.

Mr. Lipsyc moved that the meeting be adjourned.  The motion was seconded by Mr. Braylock and approved by the Board (Aye-8/Nay-0).

 

 

THE BOARD APPROVED THESE MINUTES

NOVEMBER 9, 2004