STATE OF VERMONT SECRETARY OF STATE OF'F'ICE OF PROT'ESSIONAL REGULATION BOARD OF PHARMACY

Transcription

1 STATE OF VERMONT SECRETARY OF STATE OF'F'ICE OF PROT'ESSIONAL REGULATION BOARD OF PHARMACY In re: BRIAN T. BADGLEY ) License No ) Docket No ) UNPROF'BSSIONAL CONDUCT DECISION Participating Board Members : Stephanie Ibey, RPh, Chair Robert Carpenter, RPh Judith Wemecke, Public Member Michael Carroll, RPh King Milne, RPh James Arisman, Esq., Public Member Appearances: Prosecuting the case: S. Lauren Hibbert, Esq. Respondent: the Respondent was represented by Robert H. Backus, Esq. and was present Presiding Officer: George K. Belcher Exhibits: Respondent's Exhibit A: Bradford Health Services Discharge Summary Respondent's Exhibit B: Deferred Sentence Probation Order Respondent's Exhibit C: Safety Net Recovery Letter dated Respondent's Exhibit D: Bradford Health Services Letter to Board of Pharmacy Respondent's Exhibit E: Sample Drug Screen from Burlington Labs FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter came before the Board of Pharmacy on a hearing conceming a specification of charges which was filed on 1 July, The Respondent's pharmacy license has been under summary suspension since March2,2016 by Order of this Board. The merits hearing was held on December 12,2016 at the Office of Professional Regulation Conference Room at the City Center in Montpelier, Vermont. The Respondent appeared and was represented by Robert H. 1

2 Backus, Esq. The State of Vermont was represented by S. Lauren Hibbert, Esq. At the cofirmencement of the hearing the parties filed a document entitled "stipulation and Consent Order" (attached hereto and made apart hereof). The parties explained that the document was being presented as a stipulated agreement of the facts of the case, but that the parties were not in agreement as to the proposed order. The stipulation of the facts was accepted by the Board. The stþulated facts track the Specif,rcation of Charges. Thus, there was no factual disagreement concerning the facts which were charged and the Board considers them to have been admitted by stþlation. The facts set fonh in the stipulation are found by the Board as Findings of Fact in this case. Likewise the Board concludes that the Respondent violated 3 VSA Sec. l29a(b)q e,2) and26 VSA Sec. 2051(2) as alleged in the Specification of Charges and that the Respondent has committed unprofessional conduct. The parties disagreed about the appropriate sanction or remedy to be imposed by the Board. The State presented to the Board a proposal entitled "State's Proposed Order". The Respondent presented the testimony of the Respondent and then argued ûrat the Board should impose an order somewhat different from the State's proposal. The Board carefully considered the additional facts offered by the Respondent in his testimony concerning his past addiction, his professional and educational history, his treatment history, his existing probation conditions nd deferred sentence, the recommendations of his treatment professionals as set forth in Respondent's Exhibits A, C, and D, the Respondent's professional goals, and his concems about restrictions on his employment. The State has recommended that the Board impose conditions upon the license of the Respondent and that those conditions continue for a period of tbree (3) years. The State argued that the nature of the Respondent's addiction, his profession, and the risks of relapse required a substantial period of supervision and conditions. The Respondent argued thatashorter time of conditions would be adequate given the extensive in-patient teatment completed by the Respondent and his dedication to sobriety. The State also proposed that the practice of the Respondent be'osupervised practice". As the prosecutor explained, this would require that the Respondent practice his profession with another supervising pharmacist. The exact terms of the supervision would be established by the Office of Professional Regulation and the Investigative Team of the Board. The Respondent argued that the requirement of supervision would impede the ability of the Respondent to find employment and that it would preclude him from taking many jobs which require a pharmacist to work alone or with only a subordinate such as a pharmacy technician. The Respondent also argued that there were adequate protections against relapse (substance abuse testing and a regimen of Vivitrol) such that constant supervision by another pharmacist would be unnecessary. Having considered the arguments of counsel, the facts contained in the stþulated facts, and the evidence of the Respondent, the Board has decided to adopt the terms of the State's Proposed Order. That proposed Order is attached hereto and is incorporated herein. 2

3 Order The Board does approved the State's Proposed Order and does incorporate the terms of that document herein and does ORDER each and every term and condition upon the Respondent and his license. SO ORDERED. Vermont Board of Pharmacy W By: "Stephafie Ibey, RPh, Chair Date: December//.2016 OFFICE OF PROFESSIONAL REGULATION DATE of ENTRY : / Z/I*: /Ig APPEAL RIGHTS This is a final administrative determination by the Vermont Board of Pharmacy. A party aggrieved by a final decision of a board may appeal this decision by filing a written Notice of Appeal with the Director of the Offrce of Professional Regulation, Vermont Secretary of State,, Fl. 3, Montpelier, VT within 30 days of the entry of this order. If an appeal is filed, the Director of the Office of Professional Regulation shall assign the case to an appellate ofñcer. The review shall be conducted on the basis of the record created before the board. In cases of alleged irregularities in procedure before the board, not shown in the record, proof on that issue may be taken by the appellate officer. 3 V.S.A. $$ 129(d) and 130a. 3

4 STATE'S PROPOSED ORDER Based on the Stipulation above, it is ORDERED AND ADJUDGED as follows: A. The Board hereby CONDITIONS Respondent's license commencing with the date of entry for this Order. The conditions will be as follows: 1. Re-issuance of License. Upon the commencement of these conditions, Respondent shall be issued a license labeled "conditioned." 2. Length of Time of Conditions Imposed. The conditions shall remain in place until Respondent has completed all conditions ordered. Respondent shall be subject to the conditions until Respondent completes a minimum of THREE (3) YEARS of supervised practice in which Respondent works at least forty (a0) hours every two (2) weeks as a pharmacist. Part time hours of fewer than forty (40) hours every two (2) weeks shall be credited on a prorated basis 3. Random Drug and Alcohol Testing. For a minimum of three (3) year, Respondent shall submit to random drug and alcohol screenings at the request of the Board or its designee. Respondent shall designate a person or entity that has been pre-approved by the Board or its designee to administer random drug and alcohol screens. All testing shall be done on a random, unannounced basis and analyzed by a lab qualified to analyze samples for forensic purposes and approved by the Board. All urine specimens collected for tests shall be collected in an observed setting. All screens shall be negative, with the exception of prescribed drugs. Failure to appear for, refusal to provide, adulteration of dilution of, or tampering with a sample for any urine screen shall cause that screen to be presumed positive. Any positive screen shall constitute a violation of this Order. 4. Abstain from Drus and Alcohol Use. Respondent shall abstain completely from the consumption drugs or alcohol and possession of drugs not prescribed pursuant to condition Drug Use Exception. Respondent may take scheduled/controlled medications lawfully prescribed for a bona fide illness or condition by a health care practitioner disclosed to the Board in writing by Respondent within forty-eight (48) hours of the prescription. Respondent's health care practitioner shall inform the Board, in writing and on appropriate letterhead, of knowledge of this Stipulation and Consent Order within seven (7) days of entering into the practitionerlpatientrelationship. Additionally, the practitioner shall inform the Board of all scheduled/controlled medications prescribed - and the anticipation of how long such prescriptions will need to be taken - within seven (7) days of the prescription. Office of Professional Regulation Montpelier, VT

5 The Board or its designee may request that the practitioner document the necessity for the prescribed scheduled/controlled medications or other medications known to have abuse potential. It is not anticipated that Respondent would be prescribed scheduled/controlled medication during the term of this Consent Order for a period greater than fourteen (14) days, but if so, then the conditions herein may be revoked by the Board. Respondent shall provide the Board with a current medication list of any medications taken on a scheduled or as-needed basis on forms issued by the Board within seven (7) days of the date of reinstatement and shall update this list within forty-eight (48) hours of any change in these medications. 6. Reports from Treatment Practitioner. Respondent shall continue treatment as recommended by his preapproved providers. Respondent's treatment practitioner shall, on a quarterly basis, provide documentation of Respondent's attendance. 7. Reports from Employer. Prior to commencing employment with a new employer Respondent shall have the employer review this Stipulation and Consent Order. V/ithin one (1) month of the date of reinstatement and monthly thereafter, Respondent shall cause every employer Respondent has worked for during the month to submit to the Board an evaluation of Respondent's work performance and adherence to professional standards. This report should be completed after an audit of the perpetual inventory for stimulant medications. 8. Interview with the Board or its Designee. Respondent shall appear in person for interviews with the Board or its designee upon request. 9. Out-oÊState Practice. Before any out-of-state practice can be credited toward fulfillment of these terms and conditions, Respondent shall first obtain approval from the Board. The Board will approve out-of-state practice so long as Respondent can still comply with the provisions of this Consent Order. If Respondent receives discipline on a license held in another state during the conditioned period, Respondent must inform the Board of such, in writing, within ten (10) days of receiving such discipline. 10. Notifïcation of Place of Employment/Personal Address/Telephone Number. Within ten (10) days of the date of entry of this Consent Order, Respondent shall notiff the Board, in writing, of Respondent's current place of employment, personal address, and telephone number. Respondent shall further notify the Board, in writing, within forty-eight (48) hours of any change in employment (including resignation or termination), personal address, or telephone number. Office of Professional Regulation Montpelier, VT 11. Notification to Other States. In the event that Respondent is licensed in any other state(s), Respondent must inform the licensing board of the state(s) in which Respondent is licensed of the conditional status of Respondent's Vermont license within thirty (30) days of the date of entry of this Order.

6 12. License Renewal. This Order does not automatically extend the license and Respondent must comply with the requirements for license renewal. 13. Release of Information Forms. This Order requires Respondent to authorize drug treatment providers to report information in verbal and/or written format and/or to discuss Respondent and any and all treatment rendered to Respondent for drugs with the Board or its designee. Any and all of this information may be provided to the Office of Professional Regulation investigators, and that the information may be used for further prosecutions if so warranted or if the Offrce of Professional Regulation determines that said information violates the terms of this Order or any rules or laws governing the profession. Respondent is entitled to revoke this consent at any time. However, any revocation shall be considered a violation of this Order. This consent expires when the conditions are removed from Respondent's license. This Stipulation and Consent Order shall itself constitute a valid written consent pursuant to the requirements of 42 C.F.R. $ 2.31.Respondent understands that Respondent's treatment provider may require Respondent to sign a separate and distinct consent meeting the requirements of 42 C.F.R. $ Costs. Respondent shall bear all costs of complying with this Consent Order. 15. Violation of this Order. If Respondent violates this Order the Board, after giving Respondent notice and an opportunity to be heard, hây rescind or modify this Order and impose additional appropriate disciplinary actions. If a complaint of unprofessional conduct is made against Respondent during the term of this Order, this Order shall be automatically extended until the unprofessional conduct matter is concluded. 16. Completion of Conditional License Period. Respondent must petition the Board, or its designee, to remove any and all conditions on Respondent's license. Respondent must present proof that Respondent has fully complied with the terms of this Order. B. Notwithstanding any provision above, the Respondent must continue to meet all Board requirements for maintaining a license, license renewal and license reinstatement. C. This Stipulation and Consent Order is a matter of public record and may be reported to other licensing authorities as provided in 3 V.S.A. $129(a). D. This Stipulation and Consent Order will remain part of Respondent's licensing file and may be used for purposes of determining sanctions in any future disciplinary matter. Office of Professional Regulation Montpelie VT

7 STATE OF VERMONT SECRETARY OF STATE OFFICE OF' PROF'ESSIONAL REGULATION BOARD OX'PHARMACY IN RE: BRIAN T. BADGLEY License No.: ) ) ) Docket Nos STIPULATION AND CONSENT ORDER STIPULATION NOW COME the State of Vermont, by and through State S. Lauren Hibbert, and the Respondent, Brian T. Badgley, who stipulate and agree as follows: Board Authority 1. The Vermont Board of Pharmacy ("Board") has authority to issue warnings or reprimands; suspend, revoke, limit, or condition licenses; or prevent the renewal of licenses and to deny licensure if, after disciplinary hearing, the Board finds that the Respondent has engaged in unprofessional conduct pursuant to 3 V.S.A. $$129, l29a;26 V.S.A. Chapter 36; the Administrative Rules of the Vermont Board of Pharmacy ("BOP Rules"); and the Administrative Rules of the Office of Professional Regulation ("AROPR"). Stipulated Facts 2. Brian T. Badgley ("Respondent") of Saint Albans, Vermont, is licensed by the State of Vermont as a Pharmacist under license number This license was first issued on or about October 13,2015, and expires on July 31, Respondent was employed as a pharmacist at a Northwestern Medical Center (the "Pharmacy"), located in Saint Albans, Vermont. Respondent was employed as the Pharmacy Manager. È, 4. Beginning in December of 2015 Respondent's co-workers and supervisor began being concerned about his ability to perform his duties due him falling asleep in meetings. 5. On or about January 7, 2016, J.2, Clinical Operations Vice President, met with Respondent. At that time, Respondent denied taking medication that would make him drowsy. 6. On or about February l,20l6,respondent was observed by G.C. a securþ offtcer for the facility putting needles in his personal bag. Ofnce of Professional Regulation Montpelier, VT 0s

8 7. On or about February 16,2016, when confronted by his behavior Respondent stated that he could not believe that a 10 year old problem was coming back to "haunt him." And that he had been using narcotics since his wife has left him. Respondent was terminated due to his suspected diversion of narcotics and his admitted relapse. 8. On or about February 18,2016, S.L, APRN-CRNA, was reviewing her surgery bag after she took it out of the Omnicell system. S.L noticed that drugs were missing, the documentation of the drugs removal was altered and forged by an unidentified person. Review of the Omnicell records showed that a"forced entry" was made in the Omnicell cabinet located in the operating room at approximately 6:46 PM on or about February 17, Further investigation, including review of the video surveillance, showed Respondent entering the operating room at approximately 6:31 PM on February 17,2016 and leaving the operating room at 7:13 PM. After an inventory the following drugs were found missing: a 4}l4L Hydromorphone HCL 1 MG/ML AMP b 6 ML Hydromorphone 2 MG/ML VIAL c 6 ML Fentanyl0.05 MG/ML AMPUL 9. On February 18,2016, Respondent did not have permission or authority to enter Northwestern Medical Center nor did he have permission or authority to access the Omnicell system. Violations 10. The act(s), omission(s), and/or circumstance(s) described above constitute grounds for discipline because the Respondent has committed unprofessional conduct in violation of: a 3 V.S.A. $ 129a(b)(1) e Q) failure to practice competently by reason of any cause on a single occasion or on multiple occasions may constitute unprofessional conduct, whether actual injury to a client, patient, or customer has occurred. Failure to practice competently includes: (1) performance of unsafe or unacceptable patient or client care and (2) failure to conform to the essential standards ofacceptable and prevailing practice); and, b 26 V.S.A. $ 2051(2) (Incapacity of a nature that prevents a pharmacist from engaging in the practice of pharmacy with reasonable skill, competence, and safety to the public). Understandings 11. Respondent acknowledges that the facts above are true. Prosecuting Aftorney Office of Professional Regu lation Montpelien VT 12. Respondent understands that the Board must review and accept the terms of the Consent Order. If the Board rejects any portion, the entire Stipulation and Consent Order shall be null and void.

9 13. Respondent specifically waives any claims that any disclosures made to the full Board during its review of this agreement have prejudiced Respondent's rights to a fair and impartial hearing if this agreement is not accepted by the Board and proceeds to a contested hearing. 14. Respondent has read and reviewed this entire document and agrees that it contains the entire agreement between the parties. 15. Respondent is not under the influence of any drugs or alcohol at the time Respondent signs this Stipulation and Consent Order. 16. Respondent voluntarily enters into this agreement after the opportunity to consult with legal counsel and is not being coerced by anyone into signing this Stipulation and Consent Order. 17. Respondent voluntarily waives Respondent's right to a contested hearing before the Board and waives any right to appeal from this Stipulation and Consent Order. 18. Respondent agrees that the Order set forth below may be entered by the Board. AGREED TO: STATE OF VERMONT SECRETARY OF STATE Dated: t By: S. Lauren Hibbert State Prosecuting Attomey BRIAN T. BADGLEY ENT Dated: By: T APPROVED AS TO FORM: ATTORNEY FOR RESPONDENT Dated: t APPROVED AND SO ORDERED: By BOARD OF Esq Office of Professional Regulation Montpelier, VT Dated: By: Chairperson

10 Date of Entry:,e/ -/,n Olñce of Professional Regu lation Montpelier, VT