COA rules pharmacy board’s reach does not extend to expired licenses

Foreseeing the potential for corrupt pharmacists to avoid discipline by letting their licenses expire, the Indiana Board of Pharmacy argued it had the authority to revoke expired licenses, but the Indiana Court of Appeals ruled the board does not have the power under state statute to pull a lapsed license.

The pharmacy board revoked Paul Elmer’s expired pharmacist’s license after he was convicted in April 2019 of one count of conspiracy, three counts of introduction of adulterated drugs into interstate commerce and six counts of adulterating drugs while holding for sale after shipment in interstate commerce. However, the Marion Superior Court reversed the revocation order, finding the board had exceeded its authority.

In Indiana Board of Pharmacy v. Paul J. Elmer, 20A-PL-2200, the Court of Appeals affirmed, concluding Elmer is no longer a threat to the public because his license is expired and the board will have the ability to deny him the license if he applies for reinstatement.

The board had asserted in its briefing to the appellate court that it “must be able to protect the public from pharmacists who commit criminal acts by sanctioning those pharmacists’ licenses, even if those licenses have expired. Otherwise, corrupt pharmacists could simply allow their license to expire in order to avoid discipline.”

Specifically, the board pointed to Indiana Code § 25-26-13-14, which confers its authority to reinstate expired licenses and argued that statute would be meaningless if the authority did not extend to expired licenses.

The appellate panel was sympathetic to the concerns about public safety but maintained that once the license had expired, the public was not in danger because the holder could not legally practice pharmacy. Also, the court noted under I.C. 25-26-13-14(e) and -(f), the board would be able to take action if the pharmacist applies for reinstatement.

“If and when an individual with an expired, invalid license applies for reinstatement, then the Board has an obligation to determine whether reinstatement is warranted. … Significantly, the Board is authorized to delay reinstatement ‘to permit the [B]oard to investigate information received by the licensing agency that the applicant for reinstatement may have committed an act for which the applicant may be disciplined[,]’” Judge Terry Crone wrote for the court, citing I.C. 25-1-8-8(b), “and the Board may deny reinstatement of the license ‘following a personal appearance by the applicant’ before the Board.”