Post Script

To those of you who read this blog and silently thought forming a union of  health professionals is impossible these days, the "impossible" was just announced a couple of days ago.
Providence Hospital in DC became the first DC hospital in decades to vote to join a union The final vote was 232 to 66 to join. "Providence becomes the seventh D.C. hospital with nurses organized under the banner of National Nurses United, a federation of nurses unions. Organizers hope that bringing Providence’s roughly 400 RNs into the fold will help D.C. Council legislation that would mandate certain nurse staffing levels in city hospitals. That legislation is languishing amid fierce lobbying by hospital officials, who contend that “staffing ratios” increase costs without improving patient care." http://www.washingtonpost.com/local/dc-politics/registered-nurses-vote-to-unionize-at-providence-hospital-in-dc/2013/12/11/240daa94-62bb-11e3-a373-0f9f2d1c2b61_story.html

Questions from Two Readers

My Pencak Report article entitled Freedom and Dignity engendered questions and statements from pharmacists that I thought would be of general interest and the answers are important.  I am using direct quotes and changing the pharmacists’ names.

Email No. 1:        What exactly is your point??  We are explicitly told (officially and frequently) that we have no rights to refuse, refute, or ask for legal assistance with the laundry list of ‘you must’ and ‘you cannot’ or else HP rules in the hospital environment. Are you implying this is wrong? . . .  As for all the other infringements on personal freedom, they say you agree or we let you go.  So where is the legal recourse??

Sincerely,

I.M. Direct PharmD

Q:  “Are you implying this is wrong?”

Reply: Yes it is very wrong even to the point of oppression.  We are free humans and not chattel of a corporate master.   

Q:  “So where is the legal recourse??”

Reply:  You are observing a dilemma almost every individual employee confronts.  If you seek a position at CVS, Rite-Aid, Henry Ford Hospital, Mercy Health Systems, etc., you are employed at-will with the mega-corp setting all of the terms and conditions of your service and you have no bargaining strength.  You can take the job or somebody else will.  You are at the mercy of a powerful, extremely wealthy corporation.

In contemporary military and foreign policy discussions the term “asymmetric warfare” is frequently used.  Asymmetric warfare is defined as warfare in which opposing groups or nations have unequal military resources and the weaker opponent uses unconventional weapons and tactics to exploit the vulnerabilities of the enemy.

Every person and entity has weaknesses and vulnerabilities, discover them.

So what can an employee do in this kind of asymmetric bargaining/employment situation?  The first question you ask is what do mega-corporations and oppressive billionaires fear most? 

That question is easily answered.  What is the very first thing that a mega-corporate campaign contributors demand from their politicians when they gain control of the governorship and legislature in states such as Wisconsin and Michigan?  They ask for laws to dilute the power of unions.  They ironically label the union busting legislation as “right to work laws”.

Some people don’t like the word “union” because the word has been under attack for decades.  Call it if you prefer, “a professional association with collective bargaining rights”.  Even Wal-Mart fears unions.  That is why unions are vilified on talk radio, etc. If you “don’t like unions”, do you have an alternative? “Hard work” alone won’t save you.

Imagine, if all health professionals and health technicians, etc., employed by CVS, Walgreens, Henry Ford Hospital, Rite-Aid, etc., belonged to a union or a professional association with collective bargaining rights?  The workers would now be protected by the Federal National Labor Relations Act and other federal laws and the union would be able to bargain for all of its members to obtain better pay, retirement, health benefits and working conditions.  The pharmacist and nurse would have such things as undisturbed lunch breaks in the morning and afternoon, as well as freedom from unfair, arbitrary urine, blood and hair testing.  You would no longer be an at-will employee but instead, would have a contractual right to keep your job according to the terms of the Collective Bargaining Agreement (CBA).  One pharmacist or nurse is weak; one thousand is a force to reckon with.

No longer would you have to worry about whether your boss likes you, your religion or hobbies.  You would only have to concern yourself with being a quality professional doing your job properly.  You wouldn’t be fired under a pretext because they found a pharmacist, nurse or doctor that’s younger than you, and will work for less money.  The fact that you’ve been employed for 20 or 30 years would result in you being a more prestigious and secure employee. 

 

Email No. 2:        I work in retail pharmacy for a big chain company and I have been a Michigan Rph since ____.  I love my  job and find great pride in it yet I have always asked myself how come we don’t get at least a half hour break so we can recharge our brains and shake off some stress and fatigue away.  A normal shift for me is 13 hours straight with running around constantly.  Any suggestions/ideas?

Sincerely,

Vera Tired, RPh

Reply: Form a professional association (union).  When you begin the struggle to unionize, it will be difficult and you will be threatened.  You must guard against irrational fear.  Other health professionals and workers have successfully organized — you can do it.

            I gave up the illusions of irrational fears a long time ago—you can too.  In a later blog I will discuss what I can do for you now. 

THE PENCAK REPORT

     Christopher Pencak, Attorney and Pharmacist

27322 - 23 Mile Road, Suite 7 ▪ Chesterfield, MI 48051 ▪ 586-598-4650

Website:   pharmacylawpro.com   ▪   Email:   cpencak@pharmacylawpro.com

Fall/Winter 2013

Permanent Loss of Pharmacist Jobs in Michigan?

Telepharmacy would allow one pharmacist through the use of computer technology such as Skype to oversee other pharmacies and even the dispensing of meds through machines such as PYXIS.  If you are a Michigan pharmacist or a pharmacy student, you should do everything in your power to prevent the passage of this bill or any similar law.

*Read the rest of the important details in my Blog.  Also, see my Blog on Joblessness Crisis for New Pharmacy Grads.

Contrast Being a Pharmacist in California versus the New Michigan

     As a pharmacist would you rather fill medicine in empty slots of a drug vending machine or be a well-paid, significant contributor to clinical medical therapy and be able to prescribe medicines? California government is controlled by the Democratic Party and its pharmacist associations are progressive and powerful.

     California Pharmacists obtained their primary goals of fee for service billing for clinical services such as MTM and CDTM and expanded the scope of practice for California pharmacists!

     For more than a year a coalition that includes the California Society of Health-System Pharmacists and the California Pharmacists Association has been working on SB 493.  The primary goals were to facilitate fee-for-service billing clinical services, e.g., MTM and CDTM, and prescribe a variety of drugs directly to patients.

     SB 493 will become law on 1/1/2014, but some provisions will take months to implement.  All California pharmacists will be able to “provide” immunizations for patients over age three, and “furnish” prescription travel medication, hormonal contraceptives, and smoking cessation therapy, after some compliance with certain protocols.

     Additionally, the Bill creates the official category of “Advanced Practice Pharmacist” (APP). It retained the State’s current CDTM provisions but provides another way to gain even more authority and state recognition of advanced status.  Recognition will be in accordance with regulations to be developed by the Pharmacy Board. Recognition of APPs will help implement the Provider Status goals and elevate the role of pharmacists as part of team healthcare in ACO’s and other health systems.

     California’s SB 493 is an outstanding example of highly effective pharmacy organizations and a majority of State lawmakers and governor who look out for the well-being of all of its citizens of California and not just the elites. 

     Meanwhile in Michigan our wingnuts are saying pharmacists are overpaid, superfluous clerks, that patients only need their prescribers and a vending machine. 

Exhilarating

     Balance in life is important.  I need new goals to achieve.  I never knew this sport existed until this summer when I saw a documentary and YouTube videos of people riding mountain bikes downhill at Whistler Mountain in British Columbia (YouTube search Whistler BC MTB downhill). I only knew of adults bicycling on roads for tedious miles for exercise or because they lost their driver’s license. Downhilling is far from boring. These riders take specialized bikes on chairlifts or gondolas to the top of a mountain and ride them downhill over courses that include the natural terrain, speed, as well as man-made jumps and obstacles. I watched YouTube videos from a first person perspective as people put GoPro cameras on their helmets and skillfully raced down famous trails at Whistler—some not so skillfully.

     I bought a helmet and went to Boyne Highlands, Michigan, rented a downhill bike and took a chairlift to the top and rode downhill at crazy speeds. In short, it was so frightening that when I got to the bottom, I immediately got back on the chairlift and did it for the next three hours.

     There was the call of Whistler, BC, arguably the best downhill mountain biking and freeriding in the world. But could I go?  Should I go? I went. At the end of September, I took a short family vacation and stayed at Whistler Village, the site of the 2010 Winter Olympics, and I rode downhill for three days with my youngest son, Brent. 

     By now I had acquired a lot of information and some skills since Boyne Mountain and we both had full-face helmets, goggles and the other available body armor. You can rent everything you need at Whistler. I came to Whistler late in the season and there was already snow at the top of the mountains. And then there was rain every day but the first. Interestingly, riders frequently encounter black bear on the mountain.  Downhilling is one of those sports where you are in the present. I guess that’s a part of why I like it, you cannot think about the past or future but you must pay full attention to the moment.   

     Is it safe? You can be severely injured or even killed, but I think that cycling on roads and being hit by a car carries the same sort of risks but without the thrills and skills of downhilling.

     Whistler is a magical place in every way and if you go I suggest that you get in the best possible physical condition, particularly with dead lifts and one-legged squats (“pistols”). In short, you need courage, technique, balance, strength, and a good sense of judgment. Biking season is over in the North Country but I will be training during the cold, dark Michigan nights to be ready for spring.

Freedom and Dignity

     I continue to be astonished at how frequently hospitals and other corporate employers get their highly educated, respected health professional employees to submit to being confined in a room, hostilely interrogated, their body and personal effects searched and driven to laboratories to give witnessed urine and hair samples to be screened for drugs. All of the above and more are conducted in the absence of legal counsel and the employees go along with it. Even the FBI can’t do the above to you under the same circumstances. Absent your consent or a search warrant, the above is false imprisonment, assault & battery and arguably criminal sexual conduct. At the least, this is an extremely humiliating way to treat a health professional.

     Health professionals have given up their constitutional rights, dignity and self-respect because they are at-will employees and fear job loss. Employees are subjected to all of the above sometimes merely because an employee’s eyes appear reddened, they seem sleepy, or a supervisor doesn’t like them. 

     An employee is taken into a room with security guards and questioned in a hostile fashion and the employee, in an emotional state, cooperates and answers questions without a lawyer. Quite often the questions involve clearly illegal subjects of inquiry including the patient’s private medical history and treatment, psychological history, religion and ethnic customs and private life. Their facebook pages are scrutinized. Fellow employees are encouraged to inform on each other. Lives are ruined. And this is normal?

     In an employment situation, a health professional is exchanging her time and skills to an employer in return for a paycheck. When did the American public decide to give police powers to private corporations? In most of these instances the at-will employee (whether they are right or wrong) is terminated and they leave with reports to State licensing boards that they were terminated or voluntarily resigned under a cloud and even accused of criminal wrongdoing. Was there a scientific study that proved such extreme tactics have improved patient safety?

     At some large pharmacies, where there are some discrepancies in the controlled substance inventories, all of the techs and the pharmacist on a shift are suddenly taken by car to a facility to give urine and/or hair samples to screen for drug metabolites and all of the employees, guilty or innocent, comply! Wow, nothing says I respect you and value your professionalism quite like that! Way to build employee loyalty and morale! I personally know of pharmacists who developed clinical depression after that treatment.

     What if a nurse takes my advice and goes downhilling at Whistler injures herself and a doctor prescribes her Tylenol with codeine for 10 days?  A frenemy nurse hears that she was hurt on vacation and takes the opportunity to inform a supervisor she looks tired or sleepy. The next thing you know, a urine sample is demanded and the nurse is discharged because she has metabolites of codeine in her urine and the hospital didn’t have codeine on the list of drugs she was prescribed at the time of hire. State and federal laws prevent an employer from discriminating against able employees with medical conditions or handicaps. Many employees don’t want employers to know what meds their doctors prescribe for them because they fear they will be stigmatized or passed over for promotions so they don’t list them for urine testing purposes. When you list your personal prescribed medications, the employer can make inferences about your mental and physical health, sometimes the conditions you have would be humiliating if others knew. Further, if you vacation where marijuana is legal and you indulge, isn’t that your own business on your private time? Otherwise excellent careers for health professionals have gone down the tubes over false positive urine tests for anything from opiates to marijuana, etc. Young adults are growing up thinking this perversity is “normal” in our society; same as having all of your private communications recorded and analyzed.

     And a special reminder to all of the citizens out there who answer questions from police officers in the absence of counsel when they do not need to, take this quiz:

     You are a 20-year-old pharmacy student at Ferris State. You are at a private house party (you are not driving a car) and you have consumed a couple of beers. A police officer enters the party and demands that you “blow” into his breathalyzer. You should:

(a)  Blow into his breathalyzer and be arrested and later convicted of “minor in possession of alcohol”. This conviction complicates the rest of your life in multiple ways.

(b)  Say to the officer “no thank you”, turn and walk home. You wake up the next morning, say “that was a close one...” and resolve to wait until 21 to drink responsibly and continue on to a productive and fulfilling personal and professional life.

(c)  You attempt to charm the officer with a rambling explanation of your entire life and why he should just let you go. He doesn’t, you “blow” and go to jail.

Federal Criminal Prosecution

Here are just some of the reported monetary settlements by mega corporate health providers for criminal health care fraud.

Merck:  $650 million for nominal pricing fraud

Pfizer:  $2.3 billion for fraudulent off-label marketing

Allergan:  $600 million for off-label marketing of Botox

GlaxoSmithKline:  $650 million for adulterated drugs

GlaxoSmithKline:  $3 billion for illegal marketing of

                                prescription drugs

Omnicare:  $120 million for kickback charges

     Some of the corporations are repeat offenders. Again, no executive goes to prison and no revocation of corporate charter.

     Locally scores of health practitioners are indicted for small dollar health care fraud and they go to prison.

     Why can’t they pay a fine and return to practice like the big companies? What could the distinction be? Do you know?

Miscellaneous

      I have three openings for annual retainers.

      Additionally, it is important to remember that every health professional should have a will or trust. If you run a pharmacy, a corporate succession plan is mandatory because no one can protect or anticipate when they might become disabled, injured seriously or when they may pass away. Don’t leave it for your family to litigate the matter when you can have me draft a plan now.

************************************

      There are so many little known, complex federal and state laws that it is never a good idea to answer questions from any branch of law enforcement without an attorney. You may unknowingly make an innocent remark that will lead you to become ensnared in a larger investigation you don’t need in your life. Law enforcement are like commercial fishermen that use gillnets to capture desired fish but also kill little fish they aren’t supposed to.

************************************

      Please read my blog at pharmacylawpro.com for expanded explanations of why innocent people need their Fifth and Sixth Amendment rights.

************************************

New blogs and back issues of the Pencak Report are always available at pharmacylawpro.com. Email your name and email address to cpencak@pharmacylawpro.com if you would like to receive the Pencak Report by email.

My Client Does Well

My client, pharmacist Mark Kirsch urged me to take credit for being his attorney in a successful qui tam action against Kmart pharmacies. You might have seen the recovery of $2.55 million by the government against Kmart for unlawful partial dispensing of prescription drugs. I am happy to say that Mark has been compensated by the government and he has certainly helped taxpayers. By the way, for those of you who don't know Mark personally, he is one of the best pharmacists a community pharmacy can have. His patients absolutely love him.  

Joblessness Crisis for New Pharmacy Grads

Just a day or so after I published my Blog on how telepharmacy will cause permanent loss of pharmacist jobs in Michigan, a friend made me aware of an important blog entitled “A Looming Joblessness Crisis for New Pharmacy Graduates and the Implications It Holds for the Academy” published by the American Journal of Pharmaceutical Education (AJPE) and available at medscape.com/viewarticle/811430.   It is worth reading in its entirety but essentially there was too big of an expansion of pharmacy colleges and they have created an over-supply of graduates. 

The size of the academy was relatively stable during the 1980s and 1990s.  In 2000, there were 80 colleges and schools of pharmacy in the United States.  Since then, 48 new programs have been established and 2 schools combined into 1 college, bringing the total to 127 accredited colleges and schools as of fall 2012—a 60% increase from 2000...Since 2001, 31 colleges and schools increased their number of PharmD graduates by more than 50%.

This happened with law schools and law school graduates suffered grievously.  Another interesting quote from the Medscape article is the following:

Regardless of the job market, those new graduates who are “fittest” will be able to find employment.  But the profession of pharmacy should not fall victim to viewing graduates as commodities who must fend for themselves in Darwinian fashion.  Some might opine that the profession would benefit from filtering out its less capable pharmacists, but faculty members and administrators must not become insensitive to the plight of each graduate amid a backdrop of broader institutional concerns.  (Emphasis added)

There is a cult of people and politicians that are regressing our country into a kind of dog-eat-dog zeitgeist where a small number of families profit enormously while the rest of us are getting closer and closer to an abyss. 

It took centuries of struggle for humans to learn to cooperate sufficiently to trade relatively peacefully and to minimize the frequency and severities of war.  Humans became more advanced and empathetic and learned that we are better off when we share resources enough to ensure that everyone has something.    

The rest of us now need to look beyond our everyday “busy schedules” and become more active in politics and our profession—if only to survive.  Do not sit at home assuming that the MPA, the Board of Pharmacy or anyone else will save you without your effort.  Right now, it’s down to you and what you do.

A good start would be stopping telepharmacy in Michigan.  Write letters to your local newspaper editors, rally your patients and colleagues, bombard your political representatives and stop letting the greedy take jobs away from us.  Remember, mail order pharmacy started small.  Don’t fall for the story about conveniencing a handful of patients to allow telepharmacy to get a foothold in Michigan.

            I am not against useful logical innovation in pharmacy practice but, I am against losing a large number of jobs just to increase profits for a handful of people and putting the public in danger.

Permanent Loss of Pharmacist Jobs in Michigan?

Right now SB 373 is on track to become law.  SB 373 would authorize a pilot project to permit telepharmacy in Michigan!  Telepharmacy would allow one pharmacist through the use of computer technology such as Skype to oversee other pharmacies and even the dispensing of meds through machines such as PYXIS and pharmacy vending machines.  If you are a Michigan pharmacist or a pharmacy student you should do everything in your power to prevent the passage of this bill or any similar law. 

At law school the professors would tell us about laws that start small and end up big by using this saying:  “Once the camel’s nose gets in under the tent, how do you keep the rest of the camel from walking in?”  Michigan is a densely populated state and we are not North Dakota, Alaska or the Outback of Australia.  While there are a relative handful of patients who may find it inconvenient to drive to a pharmacy, there are already pharmacies that deliver and there is mail-order pharmacy.  There are other ways to help patient access that don’t involve destroying the profession of pharmacy.

There is a classic Chinese essay translated into English and published as Thick Face, Black Heart.[1]  This essay was a treatise for aspiring Chinese politicians to learn how to ruthlessly obtain their own self-interest while appearing to be doing good for the public.  That is the highest art form of deceit.  I believe the real purpose of this telepharmacy is to eliminate from payroll the cost of paying pharmacists and even pharmacy techs.  Under contemporary American business practices there is a relentless quest for increased profitability despite the fact that economic growth has been stagnant or even declining.  Since the cost of the product (prescription drugs) is not going to decline (because PHARMA has the strongest lobby), the only way to decrease cost is to reduce payroll.  You can do that by cutting the pay of pharmacists and technicians or even better, eliminate their necessity.  With telepharmacy you can have one pharmacist remotely operate several dispensing sites all over a county. 

Smart, selfish, greedy businesses have public relations consultants to create rationalizations to deceive the public into thinking that their selfish covert plan is motivated by doing good for the public.

For example, if a hypothetical pharmacy, “Cheap Charlie’s” was to go to its local senator and tell him that it wants telepharmacy because it saves a fortune by eliminating pharmacists and technicians but is putting the public at risk, the senator will have a hard time selling that legislation to his colleagues.  However, if Cheap Charlie’s claims that there are some poor souls who are being inconvenienced by a long drive to go to his pharmacy and telepharmacy would allow him to put a PYXIS machine right near their house while they would still be able to talk to a pharmacist on Skype, then it sounds like he is doing something wonderful and compassionate for the public good. 

Should you use Thick Face, Black Heart strategy to oppose SB373?  No, just be honest and tell your politicians in no uncertain terms that you don’t want to lose your job as a pharmacist in Michigan and this bill will help to put more nails in the coffin of the once great State of Michigan.  If you knock half or more of the pharmacist jobs out of Michigan who is going to be left to pay taxes and buy products?  We have put anywhere from five to eight years of education into becoming a licensed, professional pharmacist and invested a fortune in education.  I for one won’t allow the Thick Face, Black Heart practitioners to steal that from me.  Remember protecting your own job and profession is morally acceptable, rational self-interest.  Greed is not acceptable.  Ayn Rand was a hack novelist, not a philosopher.  She is only revered by some because she makes sophomoric apologies for selfishness.  Rand’s savage economics only works in her fantasy novels, not in reality.

Think very carefully about what I have written and know that job losses happen much faster today.  And those job losses are permanent.  If you are one of the lucky few who doesn’t lose his job but gets to monitor multiple pharmacies by Skype, ask yourself if that is why you became a pharmacist?  But you may say, I own pharmacies and I would love to eliminate the expense of a pharmacist.  Well only a handful of pharmacies, the elite in-group, will get into the three-year pilot project.  Plus, you will lose market share to the insiders.  And, do we want Michigan to be a third-world state where paying off politicians is the ordinary way of doing business?  Further, if there is less demand for pharmacists, we won’t need three colleges of pharmacy will we?

Won’t the good people on the Board of Pharmacy save us?  Yes, they are good people but no, they don’t have the power to save you.  The Board of Pharmacy implements statutes from the legislative branch.  Therefore, if telepharmacy becomes law then the Board can oversee the details of telepharmacy.

What can you do right now?  Contact your legislators and the governor and explain to them exactly why they should not pass this bill and express your views to the Board of Pharmacy as well.  Additionally, the ultimate lesson for politicians is a recall.  If they pass this bill then pharmacists should choose the most vulnerable Republican and Democrat (if Democrats vote for this) and recall one from each party.  The stated reason for the recall will be that they voted for SB 373 (or any other designation for telepharmacy).

---

[1] Thick Face, Black Heart by Chin-Ning Chu.  I highly recommend the book Thick Face, Black Heart if you want a real education on how to advance your own selfish interests while making people think you’re a hero.  It is a great book that everyone should read, if only to recognize when you are being played.

What is a Summary Suspension of a Health Professional’s License?

            This blog will give health professionals a practical understanding of the rightfully dreaded, summary suspension of a license.  A summary suspension is a procedure under the Administrative Protection Act (APA) where the Department of Licensing & Regulation (LARA) immediately suspends a health professional’s license without a hearing or the opportunity for the health professional to defend his or her license.

            What are some of the immediate consequences to a health professional if his or her license is summarily suspended?  The health professional is immediately precluded from practicing in their licensed profession and will be unable to continue in their employment.  If they are in private practice, the insurance companies will suspend participation and payments, and the public and colleagues will become aware of the suspension with the attendant loss of prestige, humiliation and uncertainty—not to mention having to answer questions on license renewal, insurance, and employment applications with a “yes” to questions about licensing actions or suspensions.  If the practitioner is suspended in Michigan and holds licenses in other states, due to pervasive computer technology, those states will also summarily suspend licenses in their own jurisdiction.

            Again the license is suspended before the licensee has an opportunity to correct or rebut allegations that are relied upon as grounds for suspension.  The opportunity for grave injustice is always there when action occurs before all facts are in. 

            Decades ago sometimes practitioners might be suspended or sanctioned in Michigan but just go to Florida and practice there.  That is no longer the case and has not been so for a very long time. 

Constitutional Safeguards

            Under Michigan’s APA according to Section 92:

If the agency finds that the public health, safety, or welfare requires emergency action and incorporates this finding in its order, summary suspension of a license may be ordered effective on the date specified in the order or on service of a certified copy of the order on the licensee, whichever is later and effective during the proceedings.  The proceedings shall be promptly commenced and determined.

Summary suspension under this Act is subject to constitutional due process considerations.  Under well-established constitutional law, a citizen does not have a right to a health profession license.  However, once a citizen has obtained a Michigan health professional license then the Constitution protects that license from arbitrary state actions.  Before LARA can suspend or revoke a license, a licensee is entitled to due process.  Due process derives from the “Due Process Clause” of the U.S. and Michigan Constitution.  Due process comes in many varieties including economic, substantive and procedural due process.  Black’s Law Dictionary defines “due process” as:

The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights including notice and the right to a fair hearing before a tribunal with a power to decide the case. 

Ordinarily, once you have a physician, pharmacist, nurse’s license, etc., LARA must accord you substantive due process, including a right to a hearing before a tribunal, before your licensed can be sanctioned.  Details and technicalities of hearing rights and duties are contained in the Administrative Procedures Act—a collection of statutes.

There is one major exception called a “Summary Suspension” of a license.  In a nutshell, a health professional Board can immediately suspend a health professional’s license when there is an imminent danger to the public’s health, safety and welfare. 

Imminent danger means an immediate, real threat to the public safety.  Because there is a presumption that a licensee is entitled to substantive due process before sanctioning a license and because a suspension of a license is so damaging to the licensee, the Constitution abhors summary suspension.  Summary suspension should be narrowly construed and rarely done.

An example of facts justifying a summary suspension would be where a physician or a pharmacist is schizophrenic and suffering acutely from delusions such that the licensee is incapable of practicing his profession safely.  Another example would be where a pharmacy is dispensing adulterated or counterfeit medications. 

A summarily suspended licensee has a right to petition for the dissolution of the summary suspension and an expedited hearing.  Here, immediate and highly skilled intervention by an attorney is required.

 At the Hearing for Dissolution, the sole issue is whether there is an imminent threat to the public health, safety and welfare. 

Almost invariably, a Complaint alleging a violation of the statutes and rules governing the profession accompanies the Order of Summary Suspension.  Thus, even if the Order of Summary Suspension is dissolved at Hearing, there remain the issues of the primary Complaint.  However, the client is rightfully relieved when the Petition is successful because the licensee can practice their profession while the Complaint is winding its way through the administrative process.  Great skill is often needed to restore the summarily suspended licensee.  And sometimes the facts are such that the Order should continue.

An automatic emergency action that results in a Summary Suspension is set forth in MCL 333.16233(5) which provides:

If a licensee or registrant is convicted of a felony, or a misdemeanor punishable by imprisonment for a maximum term of two years, or a misdemeanor involving the illegal delivery, possession or use of a controlled substance, the department shall find that the public health, safety or welfare requires emergency action and, in accordance with Section 92 of the Administrative Procedures Act of 1969, shall summarily suspend the licensee’s license or the registrant’s registration. 

Read the above paragraph again carefully.  One would think that only a very serious misdemeanor would trigger a mandatory emergency action against a licensee.  Note, a misdemeanor most often carries a one-year term of imprisonment and a two-year term suggests serious criminal activity.  The little devil in the details is the conviction no matter how trivial of a misdemeanor involving a controlled substance.  Marijuana is a controlled substance.  This leads to unfortunate situations wherein what most people consider to be an insignificant drug possession or use, would lead to the dramatic result of a summary suspension.  Most health professionals would draw a large distinction between heroin and marijuana—particularly where the marijuana use is unrelated to the offender’s professional life.

An argument is made that the licensee has violated a criminal statute.  Marijuana is still illegal and is still a controlled substance and therefore license sanctions should follow.  One can still reach that objective without a summary suspension.  There is time for fact gathering and consideration of mitigating evidence.  A strong argument in favor of summary suspension regarding marijuana would be where the licensee practices while impaired by marijuana.  But the above argument is moot because the statute reads as it does.  If an exception is to be made, it is up to the legislature.