A couple of weeks ago I published this post
What is the difference ? — Rock & a Hard Place?
Bottom line … Rite Aid got fined $15,000 for one of their Pharmacist refusing to give a HIV positive pt a flu shot… violation of ADA .. violating the pt’s civil rights.
At the time.. I stated that this could start a trend for chronic pain pts stepping up to the plate.. accusing Pharmacists of ADA violation for refusing to fill legit control Rxs.. without having a valid legal/medical reason for refusing to fill them.
Someone is going to wish that he/she had read my blog and listened… I have been exchanging emails with a chronic pain pt in Florida.. and it would appear that this pt has been going to the same pharmacy in a regional grocery chain for years… having the same controlled medication prescribed by the same physician for years.
Apparently this particular pharmacy recently got a new PIC.. who has decided that this pt’s prescriptions are no longer going to be filled at this pharmacy. No other reason given..
This pt told the pharmacist that he/she was disabled and that the medication was needed and that the Pharmacist was violating the ADA by denying to fill his prescriptions.. This is a soft spoken person.. so there was no raised voices… Apparently the store manager threatened to call the police unless the pt left the store.
WELL… this pt is calling the ADA complaint line tomorrow.. and apparently it takes about two weeks for them to start investigating such violations.
BUT.. this pt is not going to stop there.. he/she is going to contact all the TV stations in the area.. talking about his/her civil rights being violated under the ADA by this Pharmacist and his employer.. I am sure that this Pharmacist’s employer is going to really welcome this free publicity !
BUT… this pt is not going to stop there.. he/she is going to file a complaint with the FL BOP.. against the Pharmacist for unprofessional conduct.
I know some of you reading this are thinking… I can refuse to fill anything I want to.. keep on thinking that … This is not the same situation as refusing to sell Plan B or BC’s.. Those people are typically not DISABLED …
Unless the pt is throwing a number of “red flags”, drug allergy or valid medical contra indication… “professional discretion “.. is not going to protect your decision to decline to fill a chronic pain pt controlled med from violating the ADA.
You can do the math.. $15,000 per pt that you are discriminating against and violating their civil rights.. that is .. if the ADA doesn’t progressively increase the fines for subsequent violations.
Better yet… do the math on some ADA focused attorney picking up on this and finding some other obscure ADA violation you or your company are doing…
UPDATE 03/17/2014… pt took Rxs to a local independent (Mom & Pop) pharmacy and they were filled without a problem.. pt is still indicated that the complaint with the ADA is going to continue !
Filed under: General Problems
Can you please confirm that if a pharmacist refuses to fill an RX for Schedule 2 drugs because he/she “doesn’t feel comfortable”?
I am legally and permanently disabled and have been for a decade. For the last, at least, few years I’ve been getting my Fentanly patches filled at the CVS across the street from my house. I’ve never had a problem until today. The pharm tech went to check stock and came back and said they had it, but that the pharmacist was not comfortable filling it for me Her issue was the quantity. I change my patch every 48 hours and she didn’t like that. She felt like that combined with the Norco that I take and was just filled again because I’m having surgery, she felt that it could pose a danger to me. What?! I’ve been on this same medication RX’d the same way for years. The only difference is that I’ve been weaning down on my dose. This is my choice by the way. Anyway the dose is now lower than it had been. Its not logical for her to say this dosing could be a danger to me. It was clear she just didn’t want to do it. The tech told me I could come back tomorrow because the pharmacist that filled my meds last month would be in and maybe he would fill them again. What? When did this even become a question? I don’t understand.
I was home and mad as hell at this treatment and called the store manager, but only got the assistant mgr. She said she’d check into it and call me back. When she called back she told me the same thing. She couldn’t fill them because it was too much and it wasn’t safe. I told the mgr that didn’t fly with me. I have a nursing background and before becoming disabled worked as an ER nurse, so I know my patho. When I went through it even the mgr couldn’t really understand why she was declining she kept saying “wow, that’s crazy”.
When I informed her that it was a violation of the ADA and my civil rights she said it as not and that the pharmacist had the right to decline to fill.
Can you please tell me who is right?
Thank you.
Lulu
Oops! That should’ve read: Can please confirm that it is a violation of the ADA and therefore illegal? Thank you
Keep us posted! This is a wonderful way to go about improving our lot 😀
Ooops forgot to add, he wasn’t out of stock he was just turning away all controlled substance patients that day – according to the tech who I spoke to the following week. He was quite the monster. I too do not think pharmacists should be the police, just use “best judgement” and follow procedures. Pharmacists are not detectives. In Florida 99% of the pill mill doctors are gone but patients are not being treated. *IF* they can find a doctor to treat them, they struggle to find a pharmacist to take their legal script.
It all comes down to the DEA playing doctor. All of us, patients, doctors and pharmacists need to write our state and Federal congress and senators and keep at it about the DEA and their tactics. [in 2012, 13 Congressmen across the country *and* across party lines did write a formal letter to the DEA to attempt to get the DEA to back off and apply the law evenly to avoid confusion]
A doctor and pharmacy should not have to fear an audit. However, the DEA doesn’t do audits like the IRS. Instead they use fear and intimidation tactics by coming in with SWAT teams, guns drawn! They destroy these businesses before they know for sure where the problem is.
Pain is so subjective too. Now doctors are afraid to treat pain and if they do they fear treating it adequately since they do not know what will set off the DEA coming in with a SWAT team.
What one person can live with pain wise, is not the same for someone else. What tolerance one patient has, is not the same as another patient either. We cannot treat all bodies as if they are the same and we cannot allow them to be treated poorly and fear discussing issues/concerns with their doctor, lest their doctor decides to dismiss them without warning. They are only covering their ar*ses after all.
We should not view each other as the enemy here. We are in this boat together. We need to get the DEA to back off and go after actual criminals. Bad enough the DEA was already busted working *with* the Sineola Cartel. [google it. Not conspiracy but Leonhart still heads the DEA since 02]
Hi Steve. I have been at the same pharmacy – a chain grocery here in Florida for nearly a decade now. [about 7-8 years]. Only once did I encounter a problem and that was with a temp. They didn’t just violate the ADA, but HIPAA and was guilty of libel when he contacted my doctor and said “she is exhibiting drug seeking behavior” well duh. I was trying to get my script filled and he was saying it was out of stock. I do not have time to spare to wait, the day I fill is the last day of meds, the new script starts the next morning at 6am!
I could have sued him and the store into oblivion but he was a temp and they do not usually treat me poorly. When they are legitimately out of stock, they contact other stores until they find one that can fill for me [within their chain]. This temp however did not. Oh he was fired.
Contacted the corporate pharmacy district manager and discussed the issue with them, he will never work for that chain again. I could have taken his license but honestly just wanted to have it over with and no other patient treated that way by him in their stores. The store did write a formal apology to my doctor for that temp’s accusations. The letter stated “I was a long term patient who they have never had any problems or concerns with in the past and that the issue was with the temp not the patient” blah blah cya.
He didn’t just treat patients poorly, he even accused the tech of being unprofessional and wrote her up! She’s been a tech in that store for as long as I’ve been going there, too. She is always professional. *sigh*
We also have a $300 billion/yr adherence problem with all meds here in the us as of 2013….why just focus on controls when that is only a fraction of the problem.
I have never liked the idea of being a ‘policeman’ and I don’t think it is fair for us to be responsible for filling rx’s for controlled substances. It is the docs that right the rx’s that are responsible. The DEA should be going after them…not the pharmacist….nor the patient. I don’t fill every rx for a control substance that crosses the counter. I know which docs are prolific writers of controlled substances. There is a recent report that 30% of Medicaid recipients use multiple docs and pharmacies for controlled substances. There is a lot of abuse! But, the correct way to deal with the problem is at the source and the source is the physician. It is time for technology to catch up too. Physicians should have available to them a patients entire profile, which would include the visit to all physicians and all medications filled by the patient. This is one area where technology has lagged behind and we are still seeing medicine practised like it was 100 years ago.
Here’s a link to the ADA ruling against rite aid.
http://www.ada.gov/riteaid.htm
We as pharmacists don’t have to be the addiction police. We need to watch out for an Rx having been issued in the usual course of practice. We can call the doctor if no diagnosis code is listed. If they’re in the PDMP with multiple doctors, we can document that we contacted doctor.
It’s just another case of put the pharmacist in the middle and make him be a cop. Why don’t they go after the physicians who write the prescriptions? Because it’s difficult to make a case and large pharmacy chains have a lot of money to dole out. If doctors weren’t writing shady scripts then I would just have to worry about fraudulent ones. I’ve already got enough to do without looking over my shoulder to see if this guys an addict and to make sure I don’t get robbed. Just another example of pharmacists having no power and bending over to take it.
§1306.04 Purpose of issue of prescription.
(a) A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.
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Document the elements of the Rx requirements. You as pharmacist get to judge it. If you’re not sure, call the doctor. Check PDMP. Then move on. If the board or DEA decide to investigate, it’ll be good to show *due* diligence. Sometimes the amount of diligence due is small. Sometimes large.
LOVE THIS!!! A perfect example of not taking any bs anymore!!! @Bluetowelboy Part of the problem is doctors not standing up for their patients! Part of the problem is doctors who don’t know their patients. Granted this is an increasingly challenging task with the patient load that so many doctors are now carrying … by the same token … it is part of a doctor’s job to know his patient. It is doctors who were/are over prescribing, indiscriminately writing inappropriate prescriptions for patients that were clearly lying … they didn’t care. The DEA didn’t just one decide … oh we’re going to do this for fun now. There are legitimate reasons they started up, despite the fact they are going overboard now. It’s not just the patients that need to fight back, it’s everyone who is affected and involved in pain management. It is the honest ones who will fight … the charletons and illegal users will not.
Steve what the heck do you expect us to do. You got the inspectors telling us to be very careful what we fill or it’s our ass. How the hell am I supposed to know if this guy is legit or not? I know there are cronic pain patients out there that are under served but how the hell are we supposed to know the difference. I got patients all the time that tell me they are disabled. Some are and some just want narcotics. You get the Dea off our backs and I’ll fill scripts all day long.
@BlueBoy… you develop protocol to basically “profile” patients. Established your own set of red flags. If they throw 2+ red flags.. you tell them to have a nice day. You be proactive.. run PMP reports on long term pts on controls every 3-6 months. If you have a prescriber known for being easy.. don’t fill any for that prescriber. When the inspector tells you to be careful.. you can show them your protocol.. If they don’t think that your protocol is stiff enough ask for their suggestions to be added.. if they don’t have any suggestions.. then it can be presumed that you are being CAREFUL. If they don’t have any suggestions.. send them a email to “clarify” your conversation that your protocol is considered to being careful .. close the email with some sort of statement.. “… unless I heard from you otherwise in the next 7 days.. I will presume that my understanding of our conversation to be accurate.. send it read receipt. They don’t respond, for fail to read it.. you have done all you can do to verify that you are being careful. It will be hard to claim that you were being careless and ignoring trying to find out what is expected from the bureaucrats
@Pharmaciststeve Thank you for explaining in detail what prudent business practices look like for pharmacists when handling DEA complaints. I am relaying this information to my friends who have chronic pain and are at time underserved at pharmacies I expect that they will be impressed and relieved to know of such a reasonable protocol.
I am anxious too see how that turns out. The new guy better have something other than I just don’t do that! With such limited info its hard to say who is right or what I would do. Still I look forward to finding out more about this.