The stress of the pharmacy profession, physical pain and financial gain along with pharmacist access to controlled substances can lead to drug diversion and self-medication by pharmacists. Theft of controlled substances by a pharmacist usually occurs for personal use, to supply the drug to another user, and/or for financial gain. Drug diversion by pharmacists can begin with a medical provider misusing drugs as a pain killer followed by repeated, follow-up use as drug tolerance increases and ultimately, as an addicted user.

Prescription drug use by medical personnel and drug diversion by health care providers has risen to epidemic proportions and become a significant public health issue. A recent study indicated that 46% of the pharmacists and 62% of the pharmacy students studied had used controlled substances at some time without a prescription. Drug diversion by health care personnel also compromises patient safety when patients don’t get the pain medications they need or when patients are exposed to infectious diseases as the result of impairment on the part of providers.

An impaired pharmacist, when accused of misappropriating controlled substances, can face criminal prosecution, civil malpractice actions, and disciplinary actions against his or her pharmacist’s license by the California State Board of Pharmacy (CBP). The Board of Pharmacy may also suggest that you participate in the Pharmacist Recovery Program (MAXIMUS). But you should know the impact of such participation on your pharmacist license and your ability to work and practice your profession.

If you are a California pharmacist who has become impaired as a result of prescription or controlled substance use or a PIC who is being investigated by the Board of Pharmacy, the Law Offices of Lucy McAllister is here to help. We care about protecting your professional reputation, career and future.

Misappropriating medications and drug diversion of controlled substances is a serious offense and a violation of the Business and Professions Code of the California Board of Pharmacy Regulations (California Code of Regulations Title 16, Section 1700, Article 20 – Prohibitions & Offenses in the 2019 Pharmacy Law Book cites the following rules regarding pharmacists which impact their ability to be licensed and remain licensed as a California pharmacist:

  1. Security of Dangerous Drugs and Devices in Pharmacy: Pharmacist Responsibility for Individuals on Premises; Regulations
  2. Obtaining License by Fraud or Misrepresentation; Unprofessional Conduct
  3. Discipline of Corporate Licensee for Conduct of Officer, Director, Shareholder

4306.5. Acts or Omissions by Pharmacist: Unprofessional Conduct

4306.6 Mitigating Factors for Pharmacist-in-Charge Reporting Violations of Others

  1. Individuals with Denied, Revoked, Suspended, etc., Licenses Prohibited from Pharmacy Ownership or Association with Board Licensed Entities
  2. Letters of Admonishment
  3. Penalties for Violation of Pharmacy Law: Actions Authorized; Who May File Actions
  4. Misdemeanor; False Representation of Self as a Physician, Agent of Physician, etc. to Obtain Drug Every person who, in order to obtain any drug, falsely represents himself or herself to be a physician or other person who can lawfully prescribe the drug, or falsely represents that he or she is acting on behalf of a person who can lawfully prescribe the drug, in a telephone or electronic communication with a pharmacist, shall be punished by imprisonment in the county jail for not more than one year.
  5. Felony or Misdemeanor: Forgery of Prescription; Possession of Drugs Obtained Through Forged Prescription (a) Every person who signs the name of another, or of a fictitious person, or falsely makes, alters, forges, utters, publishes, passes, or attempts to pass, as genuine, any prescription for any drugs is guilty of forgery and upon conviction thereof shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by imprisonment in a county jail for not more than one year. (b) Every person who has in his or her possession any drugs secured by a forged prescription shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by imprisonment in the county jail for not more than one year.
  6. Misdemeanor: Manufacture, Possession, etc. of False Prescription Blank (a) No person other than a physician, dentist, podiatrist, veterinarian, pharmacist, or other person authorized by law to dispense, administer, or 178 prescribe controlled substances, or the person’s agent acting under authorization by the person to print prescription blanks, and acting in the regular practice of the person’s profession, shall knowingly and willfully manufacture, copy, reproduce, or possess, or cause to be manufactured, copied, reproduced, or possessed, any prescription blank that purports to bear the name, address, and federal registry or other identifying information of a physician, dentist, podiatrist, veterinarian, or other person authorized by law to dispense, administer, or prescribe controlled substances. (b) Every person who violates this section shall be guilty of a misdemeanor.
  7. Misdemeanor: Obtaining Needle or Syringe by Fraud, etc.; Unlawful Use of Needle or Syringe Obtained from Another (a) Any person who obtains a hypodermic needle or hypodermic syringe by a false or fraudulent representation or design or by a forged or fictitious name, or contrary to, or in violation of, any of the provisions of this chapter, is guilty of a misdemeanor. (b) Any person who has obtained a hypodermic needle or hypodermic syringe from any person to whom a permit has been issued as provided in Article 9 (commencing with Section 4140) and who uses, or permits or causes, directly or indirectly, the hypodermic needle or hypodermic syringe to be used for any purpose other than that for which it was obtained is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or both a fine and imprisonment.
  8. Misdemeanor: Sale, Dispensing, or Compounding While Under the Influence of Drugs or Alcoholic Beverages Any person who, while on duty, sells, dispenses or compounds any drug while under the influence of any dangerous drug or alcoholic beverages shall be guilty of a misdemeanor.

The U.S. Drug Enforcement Agency (DEA) has also brought charges against California pharmacists for violating the Controlled Substances Act (CSA) and the Combat Methamphetamine Epidemic Act (“CMEA”) portion of the CSA citing diversion of a significant amount of controlled substances, failure to control the pharmacies’ inventory of controlled substances, and failure to maintain required records of the pharmacies’ distribution of controlled substances.

The Board of Pharmacy recently adopted a regulation (Title 16) effective April 1, 2018 requiring pharmacies and clinics to perform a periodic inventory reconciliation for all controlled substances, including a physical count of Schedule II controlled substances every three months. 1715.65 is intended to help pharmacists detect and stop drug loss and diversion in pharmacies and to reduce the supply of controlled substances available for misuse and abuse in California communities.

Section 1715.65 requires pharmacies and clinics to compile an inventory reconciliation report of all federal Schedule II controlled substances at least every three months. The inventory must be a physical count – not an estimate – of all Schedule II drugs. The inventory must be compared with a review of drugs that entered and left the pharmacy since the previous inventory reconciliation. All records used to complete the reconciliation must be kept in the pharmacy or clinic for three years. Possible causes of overages must be identified and incorporated into the reconciliation report. Losses must be reported to the Board of Pharmacy within 30 days of discovery – unless the cause is theft, diversion or self-use, which must be reported within 14 days.

Finally, with the internet, prescriptions for controlled substances are also now much more widely reported. AB 1751, for example, authorizes the California Department of Justice to share opioid prescriptions entered into California’s Controlled Substance Utilization Review and Evaluation System (CURES) database across state lines. The department must adopt regulations for interstate data sharing by July 2020.

If you have been recently fired for drug misappropriation and/or are under investigation by the California Board of Pharmacy for controlled substance abuse, you need to consult with an experienced licensing and criminal attorney IMMEDIATELY.

The Law Offices of Lucy S. McAllister have successfully represented many California pharmacists and other licensed health care professionals and we are experienced in handling all types of licensing accusations and licensing issues in addition to criminal cases. Let us help you protect your professional license, your reputation, and your livelihood.

For additional information or to schedule a consultation on a professional licensing issue, please contact our law offices today at (877) 280-9944.