Boesen Snow recently participated as co-counsel for a pharmacy that was the subject of a Board of Pharmacy complaint related to delivering pandemic related, patient-specific medication orders written pursuant to a telemedicine encounter. The concern of the Board of Pharmacy was whether the prescription orders were issued pursuant to a prescription order by a prescriber who had a valid prescriber-patient relationship. The program that included providing many patients with prophylactic medications for FDA-approved indications to be used in case of symptoms during the onset of the public health emergency in 2020 was certainly an ethical and noble program. However, there were questions as to whether the issuance of the prescriptions met the requirements of state law. Boesen Snow utilized a defense that not only invoked state law and federal and state emergency orders issued pursuant to the COVID-19 pandemic, but called upon our decades of pharmacy operations experience, including contemporary pharmacy practice, to persuade the Board that the pharmacy had conducted itself in a commercially reasonable manner, consistent with current pharmacy operations standards.
In the end, the complaint against the pharmacy was dismissed. The Board ultimately agreed that the program’s intent and implementation made sense in the context of the public health emergency. The Board also understood that the list of stakeholders vetting the program included the payor and CMS. However, the Board reminded the pharmacy and its Pharmacist in Charge that the State Board of Pharmacy approval and vetting should have been a part of the process prior to implementing a novel public health project regardless of the declared emergency. The Board also reminded the pharmacists’ that there is a corresponding responsibility to due diligence as to whether telemedicine providers are meeting the state requirements for establishing a prescriber-patient relationship.
In the event your pharmacy business is contemplating a particular program or, if you or your pharmacy is faced with a Board or regulatory agency inspection or complaint, call Boesen Snow to discuss how we can assist utilizing our years of legal and healthcare operations experience.
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