What Is SARPH?

Secundum Artem Reaching Pharmacists with Help (SARPH) is the PHMP program for pharmacists. SARPH's requirements of cooperation and the internal mechanism of the program are exactly the same as those of the Voluntary Recovery Program.

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Pharmacists' Prescribing Duties

Pharmacists' responsibility to properly and thoroughly investigate the prescription medications they are filling is predicated upon both federal and state law. The Commonwealth of Pennsylvania, PA Code addresses the fundamentals of pharmacists' responsibilities.

Section 49 Pa. Code § 28.18 sets forth all of the recording keeping and due diligence requirements of which a Pharmacists must meet before handing over any prescribed medication to lay person. Included in these precepts is the statement that:

"A pharmacist may not knowingly fill or refill a prescription for a controlled substance or nonproprietary drug or device if the pharmacist knows or has reason to know it is for use by a person other than the one for whom the prescription was written, or will be otherwise diverted, abused or misused. In addition, a pharmacist may decline to fill or refill a prescription if, in the pharmacist's professional judgment exercised in the interest of the safety of the patient, the pharmacist believes the prescription should not be filled or refilled. The pharmacist shall explain the decision to the patient. If necessary the pharmacist shall attempt to discuss the decision with the prescriber."

This clause is read together with federal law regarding prescription authority and pharmacists' duty to conduct due diligence into the person being given the prescription and the doctor writing the prescription.

One corporate pharmacy manual I found states: "A pharmacist is required to exercise sound professional judgment with respect to the legitimacy of prescriptions orders dispensed. The law does not require a pharmacist to dispense a prescription order of doubtful origin.

To the contrary, the pharmacist who deliberately turns the other way when there is every reason to believe that the purported prescription order had not been issued for a legitimate medical purpose may be prosecuted, along with the issuing physician, for knowingly and intentionally distributing controlled substances."

The federal regulatory basis for this employer manual is found at 21 Code of Federal Regulations § 1306.04, governing the issuance of prescriptions, which provides:

"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 law relating to controlled substances."

Significantly, these two statutes are typically read in pharmacy school then in a federal or state indictment charging a pharmacy owner and its individual pharmacists with violating these precepts and selling their pills for cash to individuals who approach with medically fraudulent prescriptions written by bad doctors who are getting paid for the prescriptions.

Please call me to discuss your concerns about the legality of prescriptions, or the doctors writing them, of which you are being called on to fill.

The VRP and its Consequences

"A standardized contract with a three-year term similar to requirements outlined by PHMP Board ordered Consent Agreements is utilized. Random observed body screens are used to determine abstinence is being maintained. (We may require urine, serum, blood, saliva, perspiration or hair testing in fulfillment of this requirement."

(This quote is taken from a 2013 Pennsylvania Licensing Board web page discussing the VRP administered by the PHMP)

In preparation for today's blog I searched the Internet for comments and questions about Pennsylvania's various licensing boards' voluntary recovery programs ("VRP") and the manner in which they entice professionals with drug or alcohol use issues to enroll in their programs.

I found numerous professionals concerned about the arduous process, high cost, and undisclosed lengths of time as a professional they were kept from working.

Complaints centered on expensive mandatory in-patient treatment or weekly drug testing protocols, work place monitoring agreements, and an inability to even interview for a job unless approved by capricious and degrading case workers. Each comment concluded with the professional wishing they consulted an attorney prior to enrolling in the program.

The nature and manner in which VRP case workers "trick" professionals with no criminal record or an ARD to enroll in the program are very creative. Sometimes, the standard letter stating, "It has come to our attention you may be suffering from an impairment" is mailed.

Other times, threatening and provocative telephone calls unilaterally scheduling appointments occur. Or, at best, case workers demand provisionally that licensees show up in Harrisburg to sign unknown documents that can't be mailed.

Under each of these circumstances the licensee is scared, possibly losing their job, and not advised of the full scope and breadth of the VRP agreement, into which they are almost forced to enter. They are given ultimatums on times to respond and returned signed documents with no explanation of the long-term implications of the legal stipulations they are acknowledging.

The legal problem is licensees do not understand the terms and conditions of the VRP agreement and the legal footing upon which the agreement is based.

Sections 63 P. S. 224(a)(2) and (b)(4) allow the board to refuse, suspend or revoke a license if the licensee "is unable to practice professional nursing with reasonable skill and safety to patients by reason of … physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination, so long as such dependence shall continue."

As part of submitting to treatment, the board is given the authority under Section 14.1(c) of the Law, 63 P.S. § 224.1(c), to require a licensee as a condition of being allowed to continue to practice to enter a VRP agreement or face public disciplinary proceedings for his or her impairment.

The significance of these provisions, when read together, is the terms of the statutorily mandated VRP agreement. Every VRP agreement requires the licensing to stipulate, among many things, that:

  1. The board is authorized to suspend, revoke or otherwise restrict the license under 63 P.S. § 224(a)(2);
  2. The licensee is unable to practice the profession with reasonable skill and safety to patients by reason of illness, addiction to drugs or alcohol, or mental impairment;
  3. The disciplinary action is deferred and may ultimately be dismissed pursuant to the impaired professional section of the Law, 63 P.S. § 224.1, provided the licensee progresses satisfactorily in an approved treatment and monitoring program and complies with the terms and conditions of the VRP Agreement.

It doesn't matter what time or how long after you enter into the VRP program that you object to the terms of the VRP or decide to not perform in accordance with the agreement. Once the licensee violates the agreement, the board moves to suspend or revoke the license.

The basis for this is simple: The licensee when they entered the VRP stipulated that they are unable to practice due to an impairment, which inability may only be concluded to be over by the VRP case worker. As such, the licensee has given up their entire defense that they are not impaired or a safety risk. Case law says that any expert testimony that the licensee post VRP enrollment is "cured" or not a danger to the community and can practice safely will not be found credible.

In cases involving a single DUI or a single positive drug test of any scheduled narcotic for which there is no medicinal basis, entry into the VRP is an acknowledgment that the licensee has a drug addiction or problem. It is this drug or alcohol problem that must be candidly acknowledged, treated, and for which inpatient and outpatient treatment with drug testing will be required. All costs will be borne by the licensee.

If the VRP comes knocking two years after the alleged DUI, which occurred after a family marital event, let's say, and you really have no drug or alcohol issue but the VRP is chosen rather than face "possible" public disciplinary action, the licensee has now stipulated to having a drug addiction for which they are unable to practice safely.

Having agreed to this, every VRP licensee is thereafter unable to seek employment, continue their employment, or be hired by a job without the VRP notifying the employer. As well each employer could be required to approve a workplace monitor of the licensee who will report to the VRP case worker. This employment will also be delayed after SATISFACTORILY COMPLETING 30, 60 or 90 days inpatient treatment, which cost will be borne by the licensee.

The issues become, why should the VRP be chosen, by whom, and under what circumstances? If some of the facts discussed above are familiar to you and your case, call me to discuss your options and the agreement being presented to you. Please make certain you understand the legal consequences of entering into the VRP.

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