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

February 2, 3, 4, 2004

 

MONDAY, FEBRUARY 2, 2004

 

10:30 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:

 

Robert P. Giacalone, R.Ph. (President); Lawrence J. Kost, R.Ph. (Vice-President); Diane C. Adelman, R.Ph.; Suzanne R. Eastman, R.Ph.; Elizabeth I. Gregg, R.Ph.; and James E. Turner, R.Ph.

 

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

 

Mr. Rowland announced that the following settlement agreements had been signed by all parties and were effective upon the signature of the Board President:

 

R-2004-127                                  SETTLEMENT AGREEMENT WITH THE STATE BOARD OF PHARMACY

(Docket No. D-030417-067)

 

In The Matter Of:

 

KELLY NICOLE LUTZ, R.Ph.

7906 Cheriton Circle

Reynoldsburg, Ohio 43068

(R.Ph. No. 03-2-23148)

 

This Settlement Agreement is entered into by and between Kelly Nicole Lutz 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.

 

Kelly Nicole Lutz voluntarily enters into this Agreement being fully informed of her 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.  Kelly Nicole Lutz acknowledges that by entering into this agreement she has waived her 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, Kelly Nicole Lutz is licensed to practice pharmacy in the State of Ohio.

 

Whereas, on or about October 17, 2003, pursuant to Chapter 119. of the Ohio Revised Code, Kelly Nicole Lutz was notified of the allegations or charges against her, her right to a hearing, her rights in such hearing, and her right to submit contentions in writing.  Kelly Nicole Lutz requested a hear­ing; it was scheduled and continued.  The October 17, 2003, Notice of Opportunity for Hearing con­tains the following allegations or charges:

 

(1)  Records of the Board of Pharmacy indicate that Kelly Nicole Lutz was originally licensed in the State of Ohio on August 11, 1998, 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, Kelly Nicole Lutz was the Respon­sible Pharmacist at Kroger Phar­macy #290 pursuant to Sections 4729.27 and 4729.55 of the Ohio Revised Code and Rule 4729-5-11 of the Ohio Administrative Code.

 

(2)  Kelly Nicole Lutz did, on or about August 15, 2001, misbrand a drug, to wit: when Kelly Nicole Lutz received a prescription for 90 dosage units of propylthiouracil 50 mg, to be taken one tablet three times per day, with two refills, she dispensed Rx# 6956310 Purinethol 50 mg, which had not been prescribed by the physician.  The patient was subsequently harmed.  Such conduct is in violation of Section 3715.52(A)(2) of the Ohio Revised Code.

 

(3)  Kelly Nicole Lutz did, on or about August 15, 2001, when dispensing Rx# 6956310, fail to offer to counsel the patient or caregiver, to wit: neither Kelly Nicole Lutz nor her designee personally offered to counsel the patient.   Such conduct is in violation of Rule 4729-5-22 of the Ohio Administrative Code.

 

Kelly Nicole Lutz neither admits nor denies the allegations stated in the Notice of Oppor­tunity for Hearing letter dated October 17, 2003; 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, Kelly Nicole Lutz knowingly and voluntarily agrees with the State Board of Pharmacy to the following:

 

(A)  Kelly Nicole Lutz agrees to the imposition of a monetary penalty of two hundred fifty dollars ($250.00) due and owing within thirty 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 43266-0320.

 

(B)  In addition to any and all other continuing pharmacy education requirements, Kelly Nicole Lutz agrees to attend, within one year of the effective date of this agreement, 2.0 CEU hours of continuing education, for preventing prescription errors in a retail pharmacy.

 

If, in the judgment of the Board, Kelly Nicole Lutz 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.

 

Kelly Nicole Lutz acknowledges that she 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.

 

Kelly Nicole Lutz waives any and all claims or causes of action she 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.  Kelly Nicole Lutz waives any rights of appeal pursuant to Chapter 119. of the Ohio Revised Code.

 

In the event the Board, in its discretion, does not adopt this Agreement as its Adjudication, this settlement offer is withdrawn and shall be of no evidentiary value and shall not be relied upon or introduced in any disciplinary action or appeal by either party.  Kelly Nicole Lutz agrees that should the Board reject this Agreement and if this case proceeds to hearing, she will assert no claim that the Board was prejudiced by its review and discussion of this Agreement or of any information relating thereto.

 

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/         Kelly Lutz RPh

 

/d/    12–30–03

 

Kelly Nicole Lutz, R.Ph., Respondent

 

Date of Signature

 

/s/         Mary Barley-McBride

 

/d/    01/08/04

 

Mary Barley-McBride, Attorney for Respondent

 

Date of Signature

 

/s/         Robert P. Giacalone

 

/d/    2/2/04

 

Robert P. Giacalone, President, Ohio State Board of Pharmacy

 

Date of Signature

 

/s/         Sally Ann Steuk

 

/d/    2–2–04

 

Sally Ann Steuk, Ohio Assistant Attorney General

 

Date of Signature

 

 

R-2004-128                                  SETTLEMENT AGREEMENT WITH THE STATE BOARD OF PHARMACY

(Docket No. D-030910-009)

 

In The Matter Of:

 

DAVID MARK OINOS, R.Ph.

7189 Crestway Road

Clayton, Ohio 45315

R.Ph. No. 03-3-14305

 

This Settlement Agreement is entered into by and between David Mark Oinos 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.

 

David Mark Oinos 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. David Mark Oinos 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, David Mark Oinos is licensed to practice pharmacy in the State of Ohio.

 

Whereas, on or about September 10, 2003, pursuant to Chapter 119. of the Ohio Revised Code, David Mark Oinos 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.  David Mark Oinos requested a hearing; it was scheduled and continued.  The September 10, 2003 Notice of Opportunity for Hearing contains the following allegations or charges:

 

(1)  Records of the Board of Pharmacy indicate that David Mark Oinos was originally licensed in the State of Ohio on July 31, 1981, 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, David Mark Oinos was the Respon­sible Pharmacist at Ray’s Phar­macy Inc.

 

(2)  David Mark Oinos did, on or about March 20, 2003, misbrand a drug, to wit: when David Mark Oinos received Rx #969175 for Seroquel 300 mg, he dispensed Serzone 200 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.

 

David Mark Oinos neither admits nor denies the allegations stated in the Notice of Oppor­tunity for Hearing letter dated September 10, 2003; 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, David Mark Oinos knowingly and voluntarily agrees with the State Board of Pharmacy to the following:

 

(A)  David Mark Oinos agrees to the imposition of a monetary penalty of two hundred fifty dollars ($250.00) due and owing within thirty 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 43266-0320.

 

(B)  In addition to any and all other continuing education requirements, David Mark Oinos agrees to attend, within one year of the effective date of this agreement, two hours (0.2 CEUs) additional hours of Board-approved continuing pharmacy educa­tion for pediatric dosing and patient consultation in a retail pharmacy.

 

If, in the judgment of the Board, David Mark Oinos 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.

 

David Mark Oinos 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.

 

David Mark Oinos 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. David Mark Oinos 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/         David Mark Oinos R.Ph.

 

/d/    1/17/2004

 

David Mark Oinos, R.Ph., Respondent

 

Date of Signature

 

/s/         L M Bly

 

/d/    1/22/04

 

L. Michael Bly, Attorney for Respondent

 

Date of Signature

 

/s/         Robert P. Giacalone

 

/d/    2/2/04

 

Robert P. Giacalone, President, Ohio State Board of Pharmacy

 

Date of Signature

 

/s/         Sally Ann Steuk

 

/d/    2–2–04

 

Sally Ann Steuk, Ohio Assistant Attorney General

 

Date of Signature

 

10:32 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 Mrs. Adelman and a roll call vote was conducted by President Giacalone as follows: Adelman-Yes, Eastman-Yes, Gregg-Yes, Kost-Yes, and Turner-Yes.

11:35 a.m.

R-2004-129    The Executive Session ended and the meeting was opened to the public.  Mr. Turner moved that the Board deny the request for a continuance in the matter of Lauren Smith R.Ph.  The motion was seconded by Ms. Eastman and approved by the Board (Aye-5/Nay-0).

 

R-2004-130    Mrs. Gregg moved that the Board deny the settlement offer presented in the matter of Kevon Armstrong, R.Ph.  The motion was seconded by Ms. Eastman and approved by the Board (Aye-5/­Nay-0).

 

R-2004-131    Ms. Eastman moved that the Board deny the settlement offer presented in the matter of Richard Sweet, R.Ph.  The motion was seconded by Mrs. Gregg and approved by the Board (Aye-5/Nay-0).

 

R-2004-132    Mrs. Gregg moved that the Board deny the request received from Walter Hubish, R.Ph. for a re­vi­sion in the terms of his probation to allow him to participate in the destruction of controlled sub­stances.  The motion was seconded by Mrs. Adelman and approved by the Board (Aye-5/Nay-0).

 

R-2004-133    Mr. Kost moved that the Board summarily suspend the license to practice pharmacy belonging to Donald Christopher Hart, R.Ph. (03-1-12131) 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 Mrs. Gregg and approved by the Board (Aye-5/­Nay-0).

11:50 a.m.

The Board recessed for lunch.

  1:05 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:

 

Robert P. Giacalone, R.Ph. (President); Lawrence J. Kost, R.Ph. (Vice-President); Diane C. Adelman, R.Ph.; Suzanne R. Eastman, R.Ph.; Elizabeth I. Gregg, R.Ph.; and James E. Turner, R.Ph.

 

R-2004-134    Mr. Winsley discussed the Optometry Board’s proposed changes to Rule 4725-16-02 (Additional oral therapeutic pharmaceutical agents) prior to leaving for the meeting of the Joint Committee on Agency Rule Review (JCARR) scheduled to begin at 1:30 p.m.  After the discussion, the consensus of the Board was that the antiviral agents proposed as additions to the formulary (acyclovir, valacyclovir, and famciclovir) were necessary for patient care.  However, the Board members indicated that, because these are oral drugs used to treat the ocular manifestations of a systemic disease, they would be more comfortable with the addition of these drugs if the optometrist would be required to refer the patient to a physician after starting the patient on the therapy.

  1:26 p.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 PSS World Medical, Inc., Cincinnati.

  1:56 p.m.

The record was closed.

  2:03 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 Michael J. Esber, R.Ph., Louisville.

  3:07 p.m.

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

  3:16 p.m.

Mr. McMillen discussed his Licensing Report with the Board members.

  3:22 p.m.

R-2004-135    Mr. McMillen next presented a request for an exemption to Rule 4729-5-11 (Responsible person) received from Nagy Ramzy, R.Ph. for the following Terminal Distributor of Dan­gerous Drugs licenses:

 

Aultman Hospital (02-0029050)

Aultman RX (application pending)

 

After discussion, Ms. Eastman moved that the Board approve this request through June 1, 2004.  The motion was seconded by Mrs. Gregg and approved by the Board (Aye-5/­Nay-0).

 

R-2004-136    The Board then considered a request for an exemption to Rule 4729-5-11 (Responsible person) received from Richard Dawson, R.Ph. for the following Terminal Distributor of Dangerous Drugs licenses:

 

Cuyahoga Falls General Hospital (02-0039150)

Cuyahoga Falls General Hospital Retail Pharmacy (application pending)

 

After discussion, Mr. Turner moved that the Board approve this request through June 1, 2004.  The motion was seconded by Mrs. Adelman and approved by the Board (Aye-5/­Nay-0).

 

R-2004-137    Mr. Benedict then presented a system for paperless recordkeeping that Dayton Heart Hospital would like to utilize.  Copies of the physician order sheets would be initialed by the pharmacist and then scanned into the computer as a read-only file.  The images would also be burned onto a compact disk for storage purposes.  After discussion, Mrs. Gregg moved that the Board consider this to be an acceptable method of recordkeeping.  The motion was seconded by Ms. Eastman and approved by the Board (Aye-5/Nay-0).

 

R-2004-138    Mr. Benedict then presented a proposal from Omnicare of Wadsworth for a bar code checking system.  After discussion, Mrs. Gregg moved that the Board approve the system as described by the Omnicare documents received and by the Board’s agents who had viewed the system.  The motion was seconded by Mr. Kost and approved by the Board (Aye-5/Nay-0).

  3:56 p.m.

Ms. Eastman 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 Mrs. Adelman and a roll call vote was conducted by President Giacalone as follows: Adelman-Yes, Eastman-Yes, Gregg-Yes, Kost-Yes, and Turner-Yes.

  4:05 p.m.

R-2004-139    The Executive Session ended and the meeting was opened to the public.  Mr. Kost moved that the Board adopt the following Order in the matter of PSS World Medical, Inc.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-031208-040)

 

In The Matter Of:

 

PSS WORLD MEDICAL, INC.

c/o Mary M. Jennings, Vice President

11121 Kenwood Road

Cincinnati, Ohio 45242

(Wholesale Distributor No. 01-0964200)

 

INTRODUCTION

 

THE MATTER OF PSS WORLD MEDICAL, INC. CAME FOR CONSIDERATION ON FEBRUARY 2, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT P. GIACALONE, R.Ph. (presiding); DIANE C. ADELMAN, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ELIZABETH I. GREGG, R.Ph.; LAWRENCE J. KOST, R.Ph.; AND JAMES E. TURNER, R.Ph.

 

PSS WORLD MEDICAL, INC. WAS NOT PRESENT NOR WAS IT REPRESENTED BY COUNSEL, 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

2.  William McMillen, R.Ph., Ohio State Board of Pharmacy

 

Respondent's Witnesses

 

None

 

State's Exhibits

 

1.  Copy of Proposal to Deny/Notice of Opportunity for Hearing letter  [12-09-03]

1A.  Procedural

2.  PSS World Medical, Inc. Renewal Application for a Wholesale Distributor of Dangerous Drugs license for 07/01/03 to 06/30/04  [05-28-03]

3.  Copy of Ohio State Board of Pharmacy Licensing Procedure letter to PSS World Medical, Inc.  [06/17/03]

 

Respondent's Exhibits

 

None

 

FINDINGS OF FACT

 

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

 

(1)  On December 9, 2003, PSS World Medical, Inc. was notified by letter of its right to a hearing, its rights in such hearing, and its right to submit any contentions in writing.

 

(2)  As demonstrated by return receipt dated December 11, 2003, PSS World Medi­cal, Inc. received the letter of December 9, 2003, informing it of the Board's reasons for proposing to deny its renewal application, and its rights.

 

(3)  PSS World Medical, Inc. has not responded in any manner to the letter of Decem­ber 9, 2003, 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 on or about June 30, 2003, Mary M. Jennings served as Vice President of PSS World Medical, Inc., 10848 Ken­wood Road, Cincinnati, Ohio 45242, and that on or about May 28, 2003, PSS World Medical, Inc. applied for renewal of its registration as a Wholesale Distributor of Dangerous Drugs, on which the box indicating a change of address was marked.

 

(5)  PSS World Medical, Inc. is not equipped as to land, buildings, equipment, and personnel to properly carry on the business of a wholesale distributor of dangerous drugs, including providing adequate security for and proper storage conditions and handling of dangerous drugs within the meaning of Section 4729.53 of the Ohio Re­vised Code, to wit: the facility is primarily a drop-shipper having inadequate facili­ties and/or paraphernalia in which to store dangerous drugs.

 

CONCLUSION OF LAW

 

Upon consideration of the record as a whole, the State Board of Pharmacy con­cludes that paragraph (5) of the Findings of Fact constitutes failure to meet the qualifications for regis­tration as a Wholesale Distributor of Dangerous Drugs set forth in Division (A) of Section 4729.53 of the Ohio Revised Code.

 

ACTION OF THE BOARD

 

Pursuant to Division (A) of Section 4729.52 of the Ohio Revised Code, and after considera­tion of the record as a whole, the State Board of Pharmacy hereby refuses to register PSS World Medical, Inc. and, therefore, denies the Wholesale Distributor of Dangerous Drugs Renewal Application submitted by Mary M. Jennings on May 28, 2003.

 

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-5/Nay-0).

 

R-2004-140    Mrs. Adelman moved that the Board adopt the following Order in the matter of Michael J. Esber, R.Ph:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-030910-012)

 

In The Matter Of:

 

MICHAEL J. ESBER, R.Ph.

1807 California Avenue

Louisville, Ohio 44641

(R.Ph. No. 03-1-13497)

 

INTRODUCTION

 

THE MATTER OF MICHAEL J. ESBER CAME FOR HEARING ON FEBRUARY 2, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT P. GIACALONE, R.Ph. (presiding); DIANE C. ADELMAN, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ELIZABETH I. GREGG, R.Ph.; LAWRENCE J. KOST, R.Ph.; AND JAMES E. TURNER, R.Ph.

 

MICHAEL J. ESBER 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.  Louis Robert Mandi, R.Ph., Ohio State Board of Pharmacy

 

Respondent's Witnesses

 

1.  Michael J. Esber, R.Ph., Respondent

 

State's Exhibits

 

1.  Copy of Notice of Opportunity For Hearing letter  [09-10-03]

1A-1D.  Procedurals

2.  Copy of State Board of Pharmacy Order in re Michael J. Esber, R.Ph.  [07-16-01]

3.  Copy of Children’s Hospital Medical Center of Akron HEM/ONC Outpatient Visit Form for (redacted)  [02-13-03]

4.  Copy of Rx #02387 275870  [02-14-03]

5.  Copy of Rite Aid Pharmacy bottle label for Rx #275870  [02-14-03]

6.  Copy of Children’s Hospital Medical Center of Akron Adverse Drug Reaction Reporting Form for I(redacted)  [not dated]

7.  Rite Aid - E. Tuscarawas Customer History Report for (redacted)  [06-01-02 to 02-15-03]

8.  Copy of Dangerous Drug Distributor Inspection Report of Rite-Aid Discount Pharmacy #2387  [04-03-03]

9.  Notarized Statement of Michael John Esber, R.Ph.  [04-03-03]

 

Respondent's Exhibits

 

A.  Copy of Drug Information Center Pharmacy Health Services letter to Rite Aid Phar­ma­cists  [10-09-03]

B-G.  Copy of six Letters of Support  [09-30-03 to 01-20-04]

H.  Customer Service Award for Michael Esber  [not dated]

 

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 Michael J. Esber was origi­nally licensed by the State of Ohio as a pharmacist on February 26, 1980, pursuant to examination, and is currently licensed to practice pharmacy in Ohio.  Records fur­ther reflect during the relevant time periods stated herein, Michael J. Esber was the Responsible Pharmacist at Rite Aid Discount Pharmacy #2387 pursuant to Sections 4729.27 and 4729.55 of the Ohio Revised Code and Rule 4729-5-11 of the Ohio Administrative Code.  Further, the Board previously disciplined Michael J. Esber on July 16, 2001.

 

(2)  Michael J. Esber did, on or about February 14, 2003, misbrand a drug, to wit: when Michael J. Esber received a prescription for morphine oral solution, Mr. Esber dispensed Rx #02387 275870, a dosage five times greater than that which had been prescribed to a 16-month-old, 9.2 kg child, and that had not been prescribed by the physician.  The patient was subsequently transported by EMS to Children's Hospital Medical Center of Akron with respiratory depression, cyanosis, and hypoxia.  Such conduct is in violation of Section 3715.52(A)(2) 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 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 Michael J. Esber as fol­lows:

 

(A)  The State Board of Pharmacy hereby places on probation for six months the phar­macist identification card, No. 03-1-13497, held by Michael J. Esber effective as of the date of the mailing of this Order.  The terms of probation are as follows:

 

(1)  Michael J. Esber must submit to the Board, prior to the end of the pro­bation period, documentation of successful completion of two hours (0.2 CEUs) of approved continuing pharmacy education in preventing medica­tion errors, which may not also be used for license renewal.

 

(2)  Michael J. Esber must not violate the drug laws of Ohio, any other state, or the federal government.

 

(3)  Michael J. Esber must abide by the rules of the State Board of Pharmacy.

 

(4)  Michael J. Esber must comply with the terms of this Order.

 

(5)  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.

 

(B)  The State Board of Pharmacy hereby imposes a monetary penalty of two hundred fifty dol­lars ($250.00) on Michael J. Esber 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.

 

Michael J. Esber 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. Kost and approved by the Board (Aye-5/Nay-0).

  4:07 p.m.

The Board meeting recessed until Tuesday, February 3, 2004.

 

 

tuesday, february 3, 2004

 

  8:45 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:

 

Robert P. Giacalone, R.Ph. (President); Lawrence J. Kost, R.Ph. (Vice-President); Diane C. Adelman, R.Ph.; Suzanne R. Eastman, R.Ph.; Elizabeth I. Gregg, R.Ph.; and James E. Turner, R.Ph.

 

Mr. Winsley reported that after significant testimony and discussion at the JCARR hearing the previous day, the Optometry Board asked to be allowed to refile Rule 4725-16-02 at a later meeting pending further discussion between the interested parties.  No further action by the Board was needed on this matter.

  9:11 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 Philip Charles Garber, R.Ph., Cincinnati.

11:17 a.m.

Gregory Braylock, R.Ph. arrived and joined the meeting in progress.  It was noted that he would not participate in the hearing, nor would he participate in the deliberations by the Board on this matter.

11:38 a.m.

The hearing ended and the record was closed.  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:

 

Robert P. Giacalone, R.Ph. (President); Lawrence J. Kost, R.Ph. (Vice-President); Diane C. Adelman, R.Ph.; Gregory Braylock, R.Ph.; Suzanne R. Eastman, R.Ph.; Elizabeth I. Gregg, R.Ph.; and James E. Turner, R.Ph.

 

R-2004-141    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:

 

JEAN ELIZABETH BRINKMEIER

03-1-26037

CONNECTICUT

KEVIN RONALD DUVALL

03-1-26036

GEORGIA

JAMES WILLIAM HATFIELD

03-1-26034

OKLAHOMA

DANIEL P. HEALY

03-1-26029

VIRGINIA

CHRIS CHARLES KROGMAN

03-1-26012

NEVADA

KENNETH HARRY LAWRENCE

03-1-26025

OREGON

CAROLYN CARMEN LEMAN

03-1-20868

INDIANA

CINDY DONNER MALHER

03-1-26042

INDIANA

JOE ALLEN MATHENY

03-1-26044

WEST VIRGINIA

DOUGLAS WAYNE ORR

03-1-26033

KANSAS

CHARLES PEARLMUTTER

03-1-26045

MASSACHUSETTS

DONEKA RAQUEL SCOTT

03-1-26040

MICHIGAN

REGINALD D. THOMPSON

03-1-26003

TEXAS

UZOMA ADAKU UWAEZUOKE

03-1-26046

MICHIGAN

KARLA KAY ZWEIFEL

03-1-26035

MISSOURI

  2:00 p.m.

R-2004-142    The Board reconvened in Room West-B&C.  Mr. Keeley presented a request from NDC Health for consideration of their ability to participate in the receipt of electronic prescrip­tions from physicians’ approved electronic prescribing system to their pharmacy clients’ computer sys­tems.  After discussion, Mr. Braylock moved that the Board consider the NDC system of trans­mit­ting electronic prescriptions to be approvable pending final in­spection after imple­men­ta­tion.  The motion was seconded by Mr. Kost and approved by the Board (Aye-6/Nay-0).

 

R-2004-143    The Board next considered the request from Walgreens for consideration of their ability to par­ti­ci­pate in the receipt of electronic prescriptions from physicians’ approved electronic pre­scrib­ing systems to the Walgreens pharmacy computer system.  After discussion, Mr. Kost moved that the Board consider the Walgreen system of receiving electronic prescrip­tions to be approv­able pend­ing final inspection after implementation.  The motion was seconded by Mrs. Gregg and approved by the Board (Aye-6/Nay-0).

 

R-2004-144    Mr. Keeley next presented a request from the University of Cincinnati College of Phar­macy requesting Board approval of their revised immunization course which added FluMist to the courses for pharmacists and pharmacy students.  After discussion, Mr. Turner moved that the Board approve the program.  The motion was seconded by Mr. Braylock and approved by the Board (Aye-6/Nay-0).

 

R-2004-145    Mr. Keeley then presented a request from the University of Toledo requesting Board approval of their immunization program for pharmacists.  After discussion, Mr. Braylock moved that the Board approve the program.  The motion was seconded by Mrs. Gregg and approved by the Board (Aye-6/Nay-0).

 

Mr. Benedict gave the Board an update on the activities of the Compassionate Care Task Force.  Mr. Benedict represents the Board on this task force.

 

A discussion was held regarding a request for Board approval from MedCenter Pharmacy of Marion, Ohio for an exemption allowing MedCenter Pharmacy to have a computer ter­minal located in a room outside the pharmacy.  As there was not enough information given regarding security, access, and need, the request was tabled until a Board agent could visit the facility to get clarification.

 

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

 

Mr. Benedict reported on the latest meeting of the Medical Board’s Prescribing Commit­tee.

 

Mr. Keeley discussed his Budget Report with the Board members.

 

Mr. Keeley then discussed his Legislative Report with the Board members.  Potential future legislation topics were discussed, including a revision of the APN formulary to possibly include Schedule II controlled substances and a revision of Section 3719.81 regarding samples.  There were no items requiring official action of the Board.

  4:15 p.m.

Mr. Kost 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 Mrs. Gregg and a roll call vote was conducted by President Giacalone as follows: Adelman-Yes, Eastman-Yes, Gregg-Yes, Kost-Yes, and Turner-Yes.  Mr. Braylock did not participate in the Executive Session.

  4:30 p.m.

R-2004-146    The Executive Session ended and the meeting was opened to the public.  Mr. Kost moved that the Board adopt the following Order in the matter of Philip Charles Garber, R.Ph.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-010615-079)

 

In The Matter Of:

 

PHILIP CHARLES GARBER, R.Ph.

3618 Fawnrun Drive

Cincinnati, Ohio 45241

(R.Ph. No. 03-3-14211)

 

INTRODUCTION

 

THE MATTER OF PHILIP CHARLES GARBER CAME FOR HEARING ON FEBRUARY 3, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT P. GIACALONE, R.Ph. (presiding); DIANE C. ADELMAN, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ELIZABETH I. GREGG, R.Ph.; LAWRENCE J. KOST, R.Ph.; AND JAMES E. TURNER, R.Ph.

 

PHILIP CHARLES GARBER WAS REPRESENTED BY NEIL F. FREUND AND THE STATE OF OHIO WAS REPRESENTED BY SALLY ANN STEUK, ASSISTANT ATTORNEY GENERAL.

 

SUMMARY OF EVIDENCE

State’s Witnesses

 

1.  Robert Burdick, R.Ph., Ohio State Board of Pharmacy

 

Respondent's Witnesses

 

1.  Gloria Garber, R.Ph.

 

State's Exhibits

 

1.  Copy of Notice of Opportunity For Hearing letter  [06-15-01]

1A-1P.  Procedurals

2.  Information, United States of America v. Philip C. Garber, Case No. CR-3-01-026, U.S. District Court, Southern District of Ohio (Western Division)  [03-09-01]

3.  Statement of Facts re Philip C. Garber  [Not dated]

4.  Plea Agreement  [03-19-01]

5.  Plea on Information  [03-19-01]

6.  Judgment in a Criminal Case  [09-09-03]

 

Respondent's Exhibits

 

A.  Initial Pre sentence Investigation Report, United States of America v Philip C. Garber, Case No. CR-3-01-26-01-WHR, U.S. District Court, Southern District of Ohio  [04-20-01]

B.  Request to Amend Report from Kevin J. Spiering, Attorney At Law  [05-07-01]

C.  Psychological Evaluation of Philip Garber  [05-12-01]

D.  Final Pre-Sentence Investigation Report  [05-14-01];

E.  Copy of Assets/Debts Report of P. Garber  [04-10-01

F.  Copy of nine Letters of Support  [04-05-01 to 04-10-01]

G.  Transcript, United States of America v Philip C. Garber, Case No. CR-3-01-26-01-WHR, U.S. District Court, Southern District of Ohio  [07-12-02]

H.  Sentencing  [09-09-03]

 

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 Philip Charles Garber was originally licensed by the State of Ohio as a pharmacist on July 31, 1981, pursuant to examination, and is cur­rently licensed to practice pharmacy in Ohio.  Records further indicate that Philip Charles Garber was the Responsible Pharmacist at Wells Professional Pharmacy, 3951 State Route 725, Bellbrook, Ohio 45305, pursuant to Sections 4729.27 and 4729.55 of the Ohio Revised Code and Rule 4729-5-11 of the Ohio Administrative Code.

 

(2)  Philip Charles Garber did, on March 19, 2001, plead guilty to three felonies: Count 1, Theft From An Organization Receiving Federal Funds, in violation of 18 U.S.C. §666; Count 2, Engaging in Monetary Transaction in Property Derived from an Unlawful Activity, in violation of 18 U.S.C. §1957; and, Count 3, Tax Evasion, in violation of 26 U.S.C. §7201.  United States of America v. Philip C. Garber, Case No. CR-3-01-26, U.S. District Court for the Southern District of Ohio (Western Division).  From April 1994 to April 15, 1998, Philip Charles Garber was engaged in a scheme wherein he obtained approximately $1,212,404.41 in funds belonging to his em­ployer, Kettering Medical Center.

 

CONCLUSIONS OF LAW

 

(1)  The State Board of Pharmacy concludes that paragraph (2) of the Findings of Fact con­stitutes 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 paragraph (2) 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 Philip Charles Garber as follows:

 

(A)  On the basis of the Findings of Fact and paragraph (1) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby revokes permanently the phar­ma­cist iden­ti­fi­ca­tion card, No. 03-3-14211, held by Philip Charles Garber effec­tive as of the date of the mail­ing of this Order.

 

(B)  On the basis of the Findings of Fact and paragraph (2) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby revokes permanently the phar­ma­cist iden­ti­fi­ca­tion card, No. 03-3-14211, held by Philip Charles Garber effective as of the date of the mail­ing of this Order.

 

Pursuant to Section 4729.16(B) of the Ohio Revised Code, Philip Charles Garber 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.

 

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-5/Nay-0).

  4:35 p.m.

The Board meeting recessed until Wednesday, February 4, 2004.

 

 

wednesday, february 4, 2004

 

  8:50 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:

 

Robert P. Giacalone, R.Ph. (President); Lawrence J. Kost, R.Ph. (Vice-President); Diane C. Adelman, R.Ph.; Gregory Braylock, R.Ph.; Suzanne R. Eastman, R.Ph.; Elizabeth I. Gregg, R.Ph.; and James E. Turner, R.Ph.

 

After a discussion of the draft minutes for the January 5 & 6, 2004 meeting, Mrs. Gregg moved that they be approved as amended.  The motion was seconded by Mr. Braylock and approved by the Board (Aye-6/Nay-0).

  9:06 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 DeLinda S. McDaniel, R.Ph., Dublin.

12:23 p.m.

The hearing ended and the record was closed.  The Board recessed for lunch.

  1:30 p.m.

The Board reconvened in Room West-B&C.  A meeting was held with the Board of Direc­tors for the Ohio Society of Health-System Pharmacists (OSHP).  A discussion of topics relating to phar­macy that were of interest to both Boards was held.

  2:30 p.m.

The meeting with the OSHP Board of Directors ended.  The Board took a brief recess.

  2:39 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 Lauren H. Smith, R.Ph., Uniontown.

  3:15 p.m.

The hearing ended and the record was closed.

  3:21 p.m.

Mr. Turner 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 Mrs. Gregg and a roll call vote was conducted by President Giacalone as follows: Adelman-Yes, Braylock-Yes, Eastman-Yes, Gregg-Yes, Kost-Yes, and Turner-Yes.

  4:40 p.m.

R-2004-147    The Executive Session ended and the meeting was opened to the public.  Mr. Braylock moved that the Board adopt the following Order in the matter of Lauren H. Smith, R.Ph.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-031208-042)

 

In The Matter Of:

 

LAUREN H. SMITH, R.Ph.

3755 Edison Street N.W.

Uniontown, Ohio 44685

(R.Ph. No. 03-1-10779)

 

INTRODUCTION

 

THE MATTER OF LAUREN H. SMITH CAME FOR HEARING ON FEBRUARY 4, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT P. GIACALONE, R.Ph. (presiding); DIANE C. ADELMAN, R.Ph.; GREGORY BRAYLOCK, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ELIZABETH I. GREGG, R.Ph.; LAWRENCE J. KOST, R.Ph.; AND JAMES E. TURNER, R.Ph.

 

LAUREN H. SMITH 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.  Louis R. Mandi, R.Ph., Ohio State Board of Pharmacy

 

Respondent's Witnesses

 

1.  Lauren H. Smith, R.Ph., Respondent

 

State's Exhibits

 

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

1A-1G.  Procedurals

2.  Notarized Statement of Lauren H. Smith  [10-22-03]

3.  Hand-written inventory for bisoprolol/HCTZ 10/6.25 mg at Children’s Ambulatory Care Phar­macy  [10/22/03]

4.  Copy of Dispensing Record for bisoprolol/HCTZ 10 mg at Ambulatory Care Center Pharmacy  [01-01-01 to 10-22-03]

5.  Copy of Children's Hospital Purchase History for bisoprolol/HCTZ 10 mg from CardinalCHOICE  [04-02 to 09-03]; EON Labs-CS  [01-28-02 to 09-22-03]; and AmerisourceBergen  [11-10-03]

6.  Copy of History Report for bisoprolol/HCTZ 10/6.25 mg at Childrens Medical Center Ambu­la­tory Care Pharmacy  [01-17-01 to 10-22-03]

7.  Copy of Dangerous Drug Distributor Inspection Report for Nancy Dawson, R.Ph.  [10‑14-03]

 

Respondent's Exhibits

 

A.  Copy of Medical Records for Lauren H. Smith  [09-16-96 to 02-18-00]

B.  Copy of letter from John E. Lepto, R.Ph.  [01-30-04]

 

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 Lauren H. Smith was origi­nally licensed by the State of Ohio as a pharmacist on July 31, 1974, pursuant to examination, and is currently licensed to practice pharmacy in Ohio.

 

(2)  Lauren H. Smith did, on or about April 3, 2003, with purpose to deprive, know­ingly obtain or exert control over dangerous drugs, the property of Akron Children's Ambulatory Care Pharmacy, beyond the scope of express or implied consent of the owner, to wit: Lauren H. Smith admittedly stole 30 dosage units of bisoprolol/HCTZ 10/6.25 mg from his employer so as to self-medicate. Lauren H. Smith’s condition, hypertension, had allegedly been diagnosed by a physician approximately three to four years previous. Lauren H. Smith did not have a valid prescription for the medi­cation.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(3)  Lauren H. Smith did, on or about May 3, 2003, with purpose to deprive, know­ingly obtain or exert control over dangerous drugs, the property of Akron Children's Ambulatory Care Pharmacy, beyond the scope of express or implied consent of the owner, to wit: Lauren H. Smith admittedly stole 30 dosage units of bisoprolol/HCTZ 10/6.25 mg from his employer so as to self-medicate. Lauren H. Smith’s condition, hypertension, had allegedly been diagnosed by a physician approximately three to four years previous. Lauren H. Smith did not have a valid prescription for the medi­cation.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(4)  Lauren H. Smith did, on or about June 3, 2003, with purpose to deprive, know­ingly obtain or exert control over dangerous drugs, the property of Akron Children's Ambulatory Care Pharmacy, beyond the scope of express or implied consent of the owner, to wit: Lauren H. Smith admittedly stole 30 dosage units of bisoprolol/HCTZ 10/6.25 mg from his employer so as to self-medicate. Lauren H. Smith’s condition, hypertension, had allegedly been diagnosed by a physician approximately three to four years previous. Lauren H. Smith did not have a valid prescription for the medi­cation.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(5)  Lauren H. Smith did, on or about July 3, 2003, with purpose to deprive, know­ingly obtain or exert control over dangerous drugs, the property of Akron Children's Ambulatory Care Pharmacy, beyond the scope of express or implied consent of the owner, to wit: Lauren H. Smith admittedly stole 30 dosage units of bisoprolol/HCTZ 10/6.25 mg from his employer so as to self-medicate. Lauren H. Smith’s condition, hypertension, had allegedly been diagnosed by a physician approximately three to four years previous. Lauren H. Smith did not have a valid prescription for the medi­cation.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(6)  Lauren H. Smith did, on or about August 3, 2003, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of Akron Children's Ambulatory Care Pharmacy, beyond the scope of express or implied consent of the owner, to wit: Lauren H. Smith admittedly stole 30 dosage units of bisoprolol/HCTZ 10/6.25 mg from his employer so as to self-medicate. Lauren H. Smith’s condition, hypertension, had allegedly been diagnosed by a physician approximately three to four years previous. Lauren H. Smith did not have a valid prescription for the medication.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(7)  Lauren H. Smith did, on or about September 3, 2003, with purpose to deprive, knowingly obtain or exert control over dangerous drugs, the property of Akron Children's Ambulatory Care Pharmacy, beyond the scope of express or implied consent of the owner, to wit: Lauren H. Smith admittedly stole 30 dosage units of bisoprolol/HCTZ 10/6.25 mg from his employer so as to self-medicate. Lauren H. Smith’s condition, hypertension, had allegedly been diagnosed by a physician approximately three to four years previous. Lauren H. Smith did not have a valid prescription for the medication.  Such conduct is in violation of Section 2913.02 of the Ohio Revised Code.

 

(8)  Lauren H. Smith did, on or about October 14, 2003, either as a principal or an acces­sory, possess dangerous drugs when not in accordance with Chapters 4729. and 4731. of the Ohio Revised Code, to wit: when a Board agent interviewed Lauren H. Smith’s live-in girlfriend at his home, Lauren H. Smith possessed 115 unit doses of Protonix 40 mg; 88 unit doses of hydrochlorothiazide 50 mg; 41 unit doses of Celexa 40 mg; and 49 unit doses of Ziac 10/6.25 mg.  These drugs were not ob­tained by prescription.  Such conduct is in violation of Section 4729.51(C) of the Ohio Revised Code.

 

(9)  Lauren H. Smith did, on or about October 14, 2003, either as a principal or an acces­sory, possess a controlled substance when not in accordance with Chapters 3719., 4729., and 4731. of the Ohio Revised Code, to wit: when a Board agent inter­viewed Lauren H. Smith’s live-in girlfriend at his home, Lauren H. Smith pos­sessed 26 tablets of Fiorinal, a Schedule III controlled substance.  These drugs were not obtained by pre­scrip­tion.  Such conduct is in violation of Section 4729.51(C) of the Ohio Revised Code.

 

CONCLUSIONS OF LAW

 

(1)  The State Board of Pharmacy concludes that paragraphs (2) through (9) 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) through (9) 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 (8) and (9) of the Find­ings of Fact constitutes 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 adjudicates the matter of Lauren H. Smith as follows:

 

(A)  On the basis of the Findings of Fact and paragraphs (1) and (2) of the Conclu­sions of Law set forth above, the State Board of Pharmacy hereby places Lauren H. Smith on pro­bation for two years from the effective date of this Order.  The terms of probation are as follows:

 

(1)  Lauren H. Smith must not violate the drug laws of the state of Ohio, any other state, or the federal government.

 

(2)  Lauren H. Smith must abide by the rules of the State Board of Phar­macy.

 

(3)  Lauren H. Smith must comply with the terms of this Order.

 

(4)  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.

 

(B)  On the basis of the Findings of Fact and paragraph (3) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby imposes a monetary penalty of one thousand dollars ($1,000.00) on Lauren H. Smith 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.

 

Lauren H. Smith 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 Mrs. Adelman and approved by the Board (Aye-5/Nay-1).

 

R-2004-148    Ms. Eastman then moved that the Board adopt the following Order in the matter of DeLinda S. McDaniel, R.Ph.:

 

ORDER OF THE STATE BOARD OF PHARMACY

(Docket No. D-030910-006)

 

In The Matter Of:

 

DeLINDA SPILLMAN McDANIEL, R.Ph.

7182 DONNYBROOK DRIVE

DUBLIN, OHIO 43017

(R.Ph. No. 03-2-13996)

 

INTRODUCTION

 

THE MATTER OF DeLINDA SPILLMAN McDANIEL CAME FOR HEARING ON FEBRUARY 4, 2004, BEFORE THE FOLLOWING MEMBERS OF THE BOARD: ROBERT P. GIACALONE, R.Ph. (presiding); DIANE C. ADELMAN, R.Ph.; GREGORY BRAYLOCK, R.Ph.; SUZANNE R. EASTMAN, R.Ph.; ELIZABETH I. GREGG, R.Ph.; LAWRENCE J. KOST, R.Ph.; AND JAMES E. TURNER, R.Ph.

 

DeLINDA SPILLMAN McDANIEL 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)  William McMillen, R.Ph., Ohio State Board of Pharmacy

 

Respondent's Witnesses

 

(1)  DeLinda Spillman McDaniel, R.Ph., Respondent

 

State's Exhibits

 

1.  Copy of Notice of Opportunity For Hearing letter  [09-10-03]

1A-1C.  Procedurals

2.  C.P.E. Report Form for DeLinda McDaniel  [09-08-02]

3.  C.P.E. Audit Request letter to DeLinda McDaniel  [09-17-02]

4.  C.P.E. Audit Request Non-Compliance letter to DeLinda McDaniel  [10-17-02]

5.  Notarized Statement of DeLinda S. McDaniel  [01-17-03]

6.  Record of C.P.E. Audit  [09-09-02 to 10-30-02]

7.  C.P.E. Verification Request letter to Amy Bennett, R.Ph., Ohio Pharmacists Foundation, Inc.  [11-05-02]

8.  Reply to C.P.E. Verification Request letter from Amy Bennett, R.Ph., Ohio Pharmacists Association  [11-20-02]

9.  C.P.E. Verification Request letter to Terry Baker, Pharm.D., Continuing Education Network, Inc.  [11-05-02]

10.  C.P.E. Verification Report for DeLinda McDaniel, Not Titled  [09-20-02]

11.  C.P.E. Verification Request letter to Dianne Tharp, R.Ph., Power-Pak C.E.  [11-05-02]

12.  Power-Pak C.E. Online Test History for DeLinda McDaniel  [09-24-02 to 10-30-02]

13.  C.P.E. Verification Request letter to Kimberly Werner, Pharm.D., Drug Store News  [11-05-02]

14.  Reply to C.P.E. Verification Request letter from Kimberly Werner, Pharm.D., Drug Store News  [11-14-02]

15.  C.P.E. Verification Request letter to Michael Shannon, Creative Educational Concepts, Inc.  [11-05-02]

16.  Reply to C.P.E. Verification Request letter from Janet W. Cline, R.Ph., Creative Educa­tional Concepts, Inc.  [not dated]

17.  C.P.E. Verification Request letter to Dr. Ronald Nickel, Ph.D., Medical University of South Carolina College of Pharmacy  [11-05-02]

18.  Reply to C.P.E. Verification Request letter from Ronald Nickel, Ph.D., R.Ph., Medical University of South Carolina College of Pharmacy [11-14-02]

19.  C.P.E. Verification Request letter to  James Appleby, R.Ph., M.P.H., American Pharmaceu­tical Association  [11-05-02]

20.  Reply to C.P.E. Verification Request from Susan M. Weedon, American Pharmaceutical Association  [11-18-02]

21.  C.P.E. Verification Request letter to Stephen Kalinowski, GlaxoSmithKline  [11-05-02]

22.  Reply to C.P.E. Verification Request from Steve Kalinowski, R.Ph., GlaxoSmithKline  [11-12-02]

23.  C.P.E. Verification Request letter to Derek Pike, Florida Society of Health-System Phar­macists, Inc.  [11-05-02]

24.  Reply to C.P.E. Verification Request letter from Tamekia L. Fitzgerald, Florida Society of Health-System Pharmacists, Inc.  [12-20-02]

25.  C.P.E. Verification Request letter to Lynn Bedford, Ohio Northern University College of Phar­macy  [11-05-02]

26.  Copy of Ohio Administrative Code Rule 4729-7-01 (Definitions)  [03-01-99]

27.  Copy of Ohio Administrative Code Rule 4729-7-02 (Requirements for renewal of a phar­macist identification card)  [02-01-02]

28.  Copy of Ohio Administrative Code Rule 4729-7-03 (Evidence of continuing pharmacy edu­ca­tion experiences)  [03-01-99]

 

Respondent's Exhibits

 

A.  Copy of State’s Exhibit 4 (C.P.E. Audit Request Non-Compliance letter to DeLinda McDaniel)  [10-17-02]

B.  Copy of State’s Exhibit 6 (Record of C.P.E. Audit)  [09-09-02 to 10-30-02]; Continuing Phar­ma­ceutical Education Credits and Certificates  [12-20-99 to 10-31-02]

C.  Copy of State’s Exhibit 17 (C.P.E. Verification Request letter to Dr. Ronald Nickel, Ph.D., Medical University of South Carolina College of Pharmacy)  [11-05-02] and State’s Exhibit 18 (Reply to C.P.E. Verification Request letter from Ronald Nickel, Ph.D., R.Ph., Medical University of South Carolina College of Pharmacy  [11-14-02]

D.  Copy of Chapter 4729-7 (Continuing Pharmacy Education) of the Ohio Administrative Code  [02-01-02]

E.  Copy of C.P.E. Sample Report Form A  [03-15-02]

F.  Copy of Ohio Pharmacists Association Code of Ethics  [not dated]

G.  Copy of two Letters of Support  [02/01/04]

 

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 DeLinda S. McDaniel was originally licensed by the State of Ohio as a pharmacist on March 2, 1981, pursuant to examination, and is currently licensed to practice pharmacy in Ohio.  Records further reflect that, during the relevant time periods stated herein, DeLinda S. McDaniel was the Responsible Pharmacist at Big Bear Pharmacy #237.

 

(2) DeLinda S. McDaniel did, on or about September 8, 2002, knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previ­ously made, when the statement was made with purpose to secure the issuance by a governmental agency of a license or registration, to wit: DeLinda S. McDaniel falsely indicated on her Continuing Pharmacy Education (C.P.E.) Report Form that she had acquired credit hours for programs that she had not completed.  Though DeLinda S. McDaniel had signed and dated her C.P.E. Report Form on September 8, 2002, the majority of the programs she claimed to have completed had not been submitted to the providers for credit until after she had received notice from the Board that her C.P.E. hours were being audited.  Such conduct is in violation of Sec­tion 2921.13(A)(5) of the Ohio Revised Code.

 

(3)  DeLinda S. McDaniel did, on or before September 17, 2002, fail to submit evi­dence of six C.E.U.s (continuing education units) of approved continuing education, to wit: though DeLinda S. McDaniel timely submitted the form for evidence of con­tinuing education, the form did not contain evidence of her having completed the required approved continuing education.  Such conduct is in violation of Rule 4729-7-02(A) of the Ohio Administrative Code.

 

(4)  DeLinda S. McDaniel did, on or about January 17, 2003, knowingly make a false state­ment when the statement was made with purpose to mislead a public official in per­form­ing the public official's official function, to wit: when Board agents were in­ves­ti­gat­ing DeLinda S. McDaniel’s activities in submitting her C.P.E. Report Form, DeLinda S. McDaniel lied so as to mislead them in their official investigation about submitting her C.P.E. Report Form.  Such conduct is in violation of Section 2921.13(A)(3) of the Ohio Revised Code.

 

CONCLUSIONS OF LAW

 

(1) The State Board of Pharmacy concludes that paragraphs (2) through (4) 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 paragraph (3) of the Findings of Fact constitutes 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.

 

(3)  The State Board of Pharmacy concludes that paragraphs (2) through (4) of the Findings of Fact constitute 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 4729.16 of the Ohio Revised Code, and after consideration of the record as a whole, the State Board of Pharmacy adjudicates the matter of DeLinda Spillman McDaniel as follows:

 

(A)  On the basis of the Findings of Fact and paragraph (1) of the Conclusions of Law set forth above, the State Board of Pharmacy hereby suspends for one year the pharmacist identification card, No. 03-2-13996, held by DeLinda Spillman McDaniel effective as of the date of the mailing of this Order.  Further, the Board suspends the suspension and places DeLinda Spillman McDaniel’s identification card on pro­bation with the following con­di­tions:

 

(1)  DeLinda Spillman McDaniel will be on probation through the next con­tinuing pharmacy education reporting period (May, 2005), to terminate if successfully audited.

 

(2)  DeLinda Spillman McDaniel will be audited in 2008.

 

(3)  DeLinda Spillman McDaniel must abide by the rules of the State Board of Phar­macy.

 

(4)   DeLinda Spillman McDaniel must comply with the terms of this Order.

 

(5)  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.

 

(B)  On the basis of the Findings of Fact and paragraphs (2) and (3) of the 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) 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.

 

DeLinda Spillman McDaniel 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 Mrs. Gregg and approved by the Board (Aye-6/Nay-0).

 

R-2004-149    Mr. Winsley asked for Board permission to run for a seat on the Executive Committee of the National Association of Boards of Pharmacy (NABP) at the NABP Annual Meeting in April.  Mrs. Adelman moved that the Board approve the request.  The motion was seconded by Ms. Eastman and approved by the Board (Aye-6/Nay-0).

 

R-2004-150    A request for Board approval of a Jurisprudence CPE program by Patricia Nussle, R.Ph., J.D. was discussed.  After a review of the program by the Board members, Mr. Braylock moved that the Board deny the request for approval of the program as being acceptable for the Jurisprudence CPE requirement.  The motion was seconded by Mr. Kost and approved by the Board (Aye-6/Nay-0).

  5:01 p.m.

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

 

PER DIEM

2/2

2/3

2/4

Total

Adelman

1

1

1

3

Braylock

-

1

1

2

Eastman

1

1

1

3

Giacalone

1

1

1

3

Gregg

1

1

1

3

Kost

1

1

1

3

Lipsyc

-

-

-

0

Teater

-

-

-

0

Turner

1

1

1

3

 

The motion was seconded by Mrs. Adelman and approved by the Board (Aye-6/Nay-0).

  5:02 p.m.

Mr. Turner moved that the meeting be adjourned.  The motion was seconded by Mrs. Gregg and approved by the Board (Aye-6/Nay-0).

 

 

THE BOARD APPROVED THESE MINUTES

MARCH 9, 2004