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Licensee with Adderall Rx who failed drug screen has burden of proving rehabilitation

2310749647_339fa45387A pharmacist who sought reinstatement of her license, and was denied, lost her appeal August 25. The Commonwealth Court of Pennsylvania ruled that she had not properly demonstrated her rehabilitation and ability to practice pharmacy with reasonable skill (Markowitz v. Bureau of Professional and Occupational Affairs, State Board of Pharmacy).

The case concerned Pennsylvania pharmacist Carol Markowitz, who after several years of practice opened her own pharmacy. In 2009, the state Bureau of Professional and Occupational Affairs initiated an enforcement action against her after she attempted suicide by ingesting some diverted oxycodone tablets.

Under a consent decree, suspension of her license was imposed but stayed in favor of probation. She was ordered to undergo a mental health evaluation, drug treatment, and random drug testing, and to abstain from alcohol.

Two months into her probation, Markowitz tested positive for Oxazepam, a controlled substance, and ethyl glucoronide, an alcohol marker. She was directed to a rehab program but did not complete it, and the board vacated the stay of her license suspension, laying out requirements on how she could petition for reinstatement including at least three years of rehabilitation and continuous sustained recovery.

She applied for reinstatement in 2014, submitting a number of random drug testing results, six of which tested positive for amphetamine. Since her psychiatrist had prescribed her the amphetamine Adderall, she stated that the drug tests “showed she was not taking any substance for which she did not have a valid prescription.”

But given the test results and Markowitz’s failure to submit evaluations from approved providers, the board found that she had not met her burden of proving she was fit to practice pharmacy safely.

On appeal to the Commonwealth Court, Markowitz argued that the Pharmacy Board erred in admitting doctors’ reports when the doctors themselves were not present for cross-examination. The court agreed ,but said it was Markowitz who had the burden of proof in this case and she did not present any physician to testify in person either.

The court expressed concern about the board’s demand that Markowitz spend $6,000 on an evaluation. That requirement “does not appear grounded in statute or even fair given her current financial difficulties,” the court said.

In addition, the court pointed out, “the statute states that the board may require her examination by ‘physicians or psychologists approved by the Pharmacy Board.’ . . It does not say she cannot challenge the results of that examination, nor does it condition her reinstatement upon the approval of a Program-approved physician or psychologist.”

While upholding the board’s denial of reinstatement, the court said, “We are left with a difficult record.” Markowitz’s doctor prescribed Adderall which showed up in her drug tests. Markowitz was trying to get off the drug in order to get her pharmacy license, but her other doctor thought this was inadvisable.

“Markowitz needs to prove that her Adderall use is appropriate and not an impediment to her ability to work as a pharmacist. She has not done so yet and accordingly, we are constrained to affirm the order of the Pharmacy Board,” the court concluded.