On Monday a case was filed in the Texas Southern District Court. The case was filed by Blue Mint Pharmco LLC and Jona Rushin R.PH. against the Texas State Board of Pharmacy and its members. The case is regarding the lack of procedural and substantive due process in regards to the administration of disciplinary proceedings related to Texas HB 2561, which expands the board’s authority to regulate prescriptions for controlled substances.
The plaintiffs operate a pharmacy; they say that their rights have been violated due to “unlawful administration of disciplinary proceedings” and racial discrimination in pharmacy regulation.
Under the state pharmacy law, the complaint explained, the Board of Pharmacy is required to identify “prescribing practices” that indicate drug diversion or abuse. The board issued a set of “Red Flag” factors for filling of the prescriptions. The complaint discussed four; the first factor scrutinizes when “the pharmacy dispenses a reasonably discernible pattern of substantially identical prescriptions for the same controlled substances, potentially paired with other drugs, to numerous persons, indicating a lack of individual drug therapy in prescriptions issued by the practitioner.”
The second factor describes a pharmacy dispensing prescriptions at a low volume, with a “relatively consistent 1:1 ration of controlled substances to dangerous drugs and/or over-the-counter products dispensed as prescriptions.” The third factor describes a doctor issuing prescriptions for substances known to be commonly abused, such as opioids, codeine, and others. Finally, the final factor flags prescriptions that call regularly for the highest strength or quantity available for a given drug.
The plaintiffs argues that while the board has indicated that the red flag factors listed above are to be treated as a balancing test, the application of these factors has been as a bright line rule based off of statistical thresholds.
The plaintiff argues that the implementation of these factors does not take into account whether the pharmacist operates in a low income or high minority population and also does not provide a safe haven for pharmacists who comply with the investigative requirements.
According to the plaintiff, “the factors were purposely developed to single out minority pharmacists providing legitimate services in minority communities and their patients, whose medical needs may result in the prescription patterns the Board arbitrarily deemed to be cause for discipline.”
The plaintiffs also allege that the board violated due process in disciplinary actions it had taken against the plaintiffs. According to the complaint, the board intimidated the plaintiff’s expert witness, who was set to testify on standard of care for the pharmacist. The expert witness. whom the plaintiff said will no longer testify, reviewed prescriptions filled by the plaintiffs using the state’s Prescription Monitoring Program (PMP) system, however the board subsequently charged the expert witness with a violation because he used the PMP system to review records that were not for his patients.
The plaintiff has sued for procedural and substantive due process violations as well as violations of equal protection regarding the board’s disciplinary procedures. The plaintiff is represented by Khouri Law Office, PLLC.