The Solution

If you are like me, you have become disillusioned with the inability of pharmacy organizations and PACs to persuade the Michigan legislature to act in the interest of pharmacy and our own state economy.

Michigan State employees continue to receive their prescription medications from out-of-state mail order pharmacies. Our taxes pay for those prescriptions. Even more, it would be an economic boom to have Michigan pharmacies dispense those prescriptions to the Michigan State employees. You would be able to retain or hire new employees to process the flood of prescriptions. Your Michigan based pharmacy would pay taxes back into the system and this would create a cycle of self-perpetuating income.

There still is no law in the State of Michigan requiring mandatory lunch breaks for pharmacists who work incredibly long hours. There is ample empirical evidence to suggest that physically fatigued pharmacists are more likely to commit errors and this puts the public health at risk. This is a sufficient constitutional ground to enact such working condition legislation protection for pharmacists and the people of Michigan.

There are even more ideas I have that will advance pharmacists quality of life, prosperity, and to create more good jobs in Michigan.

As many of you are aware I have explored working within the MPA, forming a new pharmacy organization and other initiatives.

I am tired of waiting. We want change now. Do you realize that the only reason PACs ask for your money is simply to purchase time with our state legislators? That’s right, we are paying hundreds of thousands of dollars for a mere audience with people we elect that are supposed to serve the State’s interest and not their own. Yet, even as you write the check to the PAC, you know deep down inside, that the drug manufacturers and insurance companies and large employers write checks that dwarf your contribution into insignificance.

Does this mean we should quit the good fight? No, it means we have to do something different and effective. What is the plan?

My plan is to elect a Michigan Congressman who is incorruptible, highly intelligent with an excellent education and a thorough understanding of the issues holding back pharmacy and the economy in Michigan. A young man who recently graduated from the University of Michigan who majored in Political Science and minored in Philosophy and studied Arabic and German. A young man who as a child, read so many advanced books on the American Revolution, the Federalist Papers and our Constitutional system of government that he soon knew more than most college students about the principles of American Government. A young man who was taught by his father that the great strength of America is the strength of its middle class. His father taught him that the rich will always be able to protect themselves in any form of government but the middle class is always at risk.

It is with great pride that I introduce you to the man I hope will be the next Michigan Representative for the 81^st District, my son Brent Pencak. If pharmacists help Brent Pencak, you will not need to pay PACs to voice your needs. Brent already knows. Brent needs to win the primary in August

With your help, Brent Pencak will be your state representative with the power to introduce the legislation we have dreamed of for decades.

- Christopher Pencak

My name is Brent Pencak and I am running as a Democratic Candidate for State Representative of the 81^st District. A map of the 81^st District can be found here, and includes areas such as Marysville, St. Clair, Yale, Port Huron Township, Algonac, Marine City, and Clyde Township. My website is under construction, but I have a blog which can be found here- http://pencak4mihouse.blogspot.com/

I recently graduated from the University of Michigan with a degree in Political Science and I also studied courses in Philosophy, Arabic, and German. I was inspired to pursue public office because of my membership with a student-think tank, the Roosevelt Institution. We wrote and tried to implement our policy ideas, including hosting a regional conference addressing ways to reenergize the Midwest economy.

As the son of a pharmacist and lawyer, I recognize the unique challenges faced by pharmacists. Although I will be elected by members of my district, I will work to represent the interests of pharmacists across the state. As your representative, I will work as an advocate for the rights of pharmacists.

Some of the issues that I wish to focus on during my time in office:

Pharmacists, as professionals, should receive a mandatory, paid 30-minute minimum lunch break when working shifts of eight hours or longer. This policy will help ensure public safety through less fatigued and more focused pharmacists on the job. It will also increase retention rates, preventing mental and physical breakdown among overworked pharmacists.

Michigan state employees will be mandated to have their prescriptions filled in-state rather than through mail. To help ensure fair pricing, Michigan pharmacies will be allowed to price match out-of-state prices. This plan will keep businesses and employees in the state and result in more tax dollars staying in our state.

An embarrassing burden for pharmacists who have had their license sanctioned is having their name posted on a publicly viewable list on the Internet. This unnecessary shame should be resolved with a sunset provision requiring names be removed after 3 years.

I intend to work with the Board of Pharmacy to address these needs and future needs of pharmacists. For example, working with the Board, I want to encourage them to issue more declaratory rulings. A declaratory ruling is a binding decision to clarify issues. For example, many pharmacists invested in Internet pharmacies before knowing the legality. Wouldn’t it be great to receive judgments on legality before investing time and money? Increased cooperation between the Board and pharmacists can only help clarify rules and prevent future problems.

I recognize the needs of pharmacists not only as professionals, but as community leaders and economic anchors. In my Congressional district are many small towns and cities where often times the pharmacy is the economic center of town, serving the needs of the community year-round. Pharmacists still serve the traditional role as a respected community leader. Not only are consumers’ needs met, but pharmacies offer jobs for many in the community. The experience of working at a pharmacy encourages many to pursue a career in pharmacy.

Another focus of mine is protection of drinking water and the environment through mandated proper disposal of prescription drugs. Adverse affects on animals have been proven. Can adverse affects on humans be far behind? As the Great Lakes State, we have an increased reason for concern. Properly mandated disposal of prescription drugs can prevent further contamination of water.

Michigan’s primary will be on August 5, 2008 and the general election is November 4, 2008. Here is a link to the Michigan Voter Information Center with voter registration information.

I know that you might think that you cannot help or benefit from my campaign because you are not in my district. However, if I am elected, I will be representing the State of Michigan and will introduce bills to improve the entire state. Remember to spread the word to friends, other pharmacists, and pharmacist groups. This is the opportunity to create change for the entire state.

I will be grateful for any contribution that you can make for my campaign. Please make checks out to the “Committee to Elect Brent Pencak”. My address is:

PO Box 515
Richmond, MI 48062

Include your full name and address. Contributions are limited to $500.00. If you are making a contribution more than $100.0, please include your profession, employer, and business address. I apologize for the inconvenience, but it is required election law.

If you are interested in volunteering for the campaign, please email me at the address below.

If you have any questions or comments, please email at pencak4mihouse@gmail.com

Confidentiality Reminder

The LA Times had a recent article on the celebrity snooping scandal at the UCLA Medical Center. There have been 68 current and former workers implicated in this investigation, centering primarily on hospital staff searching the records of celebrities such as Britney Spears and Farrah Fawcett. One administrative specialist was indicted by a federal grand jury and is facing up to 10 years in prison.

Not only is snooping medical records a moral and ethical issue, but it is illegal. In the UCLA case, not only are the individuals facing punishment, but the State of California is looking at sanctioning the Medical Center. This serves as an important reminder to safeguard your records and computer systems and ensure employees are trained and reminded to follow privacy policies.

Big Money for Pharmacists

A settlement between CVS Caremark Corporation, the United States, and several states was approved by a Federal District Court in Northern Illinois. Between 1999 and 2006, CVS was alleged to substitute capsule of Ranitidine for tablets for Medicaid prescriptions, allowing them to evade the Federal Upper Limit pricing for Ranitidine tablets. This caused over-billing.

The settlement allowed CVS to deny wrongdoing or violation of state or federal law. The settlement sent $21 million to the federal government, $15.6 million to state plaintiffs, and $4.3 million to the qui tam relator, a part-time pharmacist of CVS.

I have experience in these cases and they can be very lucrative for persons who are aware of overbilling or other corporate fraud.

Expect a big announcement in the coming days.

Happy Memorial Day

I hope that everyone's holiday weekend was good and you enjoyed the weather.

We will be making several updates to the blog over the coming days, so I hope that you will watch for those.

Pencak Report Spring 2008 JUST PUBLISHED!!!

Pencak Report Summer 2007

Pencak Report Summer 2006

Pencak Report Summer 2005

Pencak Report Fall 2004

Pencak Report Summer 2004

Pencak Report Summer 2003

Pencak Report April 2002

Pharmacists Win

Here is the results of the case that I argued in front of the Court of Appeals-

The Majority Opinion

The Dissenting Opinion

Detroit Free Press Article

Here is a great article from Brian Dickerson of the Detroit Free Press dealing with insurance companies' control of the courts-

BRIAN DICKERSON: Fault lies with justices who pay back insurers
August 8, 2005
BY BRIAN DICKERSONFREE PRESS COLUMNIST

Michigan's shoreline may belong to the people. But its court system, and a majority of the state Supreme Court justices who oversee it, still belong to the insurance industry.
Late last month, even as it was upholding John Q. Public's right to walk the Great Lakes shoreline, Michigan's highest court handed insurance companies a license to defraud consumers.
The court's 4-3 ruling in Rory v. Continental Insurance commands renewed scrutiny of the way candidates for the appellate courts are financed.
Wouldn't it be more efficient, for instance, if insurance companies paid the justices' salaries directly? The companies would save the hassle of laundering payments through the soft-money campaign finance machine, and their water carriers in Lansing could dispense with the charade of judicial impartiality.
Shirley Rory, 53, and her elderly mother, Ethel Woods, both sustained neck and back injuries in a May 1998 car accident in Detroit. Fifteen months later -- well within the three-year time limit established by Michigan statute -- Rory and Woods sued Charlene Haynes, the driver of the other vehicle, for damages arising from their injuries.
The police report of the accident doesn't indicate whether either driver was insured. So it wasn't until several weeks after their lawsuit had been filed that Rory and Woods learned Haynes was driving bare.
Under Michigan's no-fault law, auto policyholders who carry uninsured motorists coverage can collect damages from their own insurance companies if an uninsured driver permanently injures them.
But in March 2000, when Rory filed an uninsured motorist claim against her insurer, Continental Insurance Co., the company balked, explaining that Rory's claim, though within the statutory time limit, was beyond the one-year time window her policy with Continental allowed.
For more than a century, Michigan courts have demanded that contractual limitations like the one contained in Rory's auto policy be reasonable. Everyone might agree that a 60-second time limit on uninsured motorist claims would be unreasonable. The question in Rory's case was whether the twelve-month limit in her auto policy made it practically impossible for her to collect on the uninsured motorist coverage she'd purchased.

A tradition of vigilance

In challenging Continental's refusal to pay, Rory had another venerable legal tradition on her side: the courts' long-standing distinction between negotiated contracts (like the one between Steve Yzerman and the Red Wings) and take-it-or-leave-it contracts like the ones most auto policyholders sign.
Michigan courts have long been skeptical of the latter, whose terms are typically skewed in the insurer's favor. Rory's lawyer, David Turfe, argued that a one-year time limit on uninsured motorist claims was unreasonable by any reckoning, because it provided too little time for policyholders like Rory to establish that their injuries were permanent or to discover that the other drivers were uninsured.
Under the heightened scrutiny to which one-sided form contracts were traditionally subjected, Turfe assured Rory a judge was certain to disallow the one-year time limit.
A Wayne County Circuit Court judge and three Michigan Court of Appeals judges agreed with Turfe's reasoning and ordered Continental to process Rory's uninsured motorist claim.
The one-year time limitation buried in Rory's policy, all four judges agreed, would effectively preclude most policyholders from collecting the coverage they had paid for, no matter how clearly an uninsured motorist was responsible for their injuries.
And that's where the matter stood -- until late last month, when four Republican Supreme Court justices whose re-election campaigns were heavily financed by insurance companies and other deep-pocket defendants turned decades of legal precedent on its head.
Before then-Gov. John Engler appointed him to the appellate bench in 1995, state Supreme Court Justice Robert P. Young Jr. served as general counsel to AAA Michigan, the state's largest auto insurer.
Since his elevation to the state's highest court, Young and three other justices appointed to the appellate bench by Engler -- Clifford Taylor, Maura Corrigan and Stephen Markman -- have collaborated in a series of 4-3 rulings whose combined effect has been to sharply curtail insurers' liability.
(Probably you've already noticed the resulting reduction in your auto policy premiums. Hahahahahaha!)
But the precedent-shattering principles enshrined in Rory v. Continental represent the Republican majority's most brazen assault yet on consumer rights.
"Unambiguous contracts, including insurance policies, are to be enforced as written," Young wrote in the court's majority opinion. "Judicial determinations of 'reasonableness' are an invalid basis upon which to refuse to enforce unambiguous contract provisions."
Elizabeth Weaver -- the only Republican justice to reach the appellate bench without Engler's sponsorship -- explained the significance of Young's ruling in one of three impassioned dissents.
In upholding the unreasonable one-year limit on claims, "the majority is eliminating over five decades of precedent that created specialized rules of interpretation and enforcement for insurance contracts," Weaver wrote.
Weaver's colleague, Justice Marilyn Kelly, was even more emphatic. "The burden of this rule is carried by the average individual who has little, if any, bargaining power when purchasing insurance," Kelly wrote. "The choice made by the majority regresses our judicial system by decades, if not centuries."
For consumers, the import of Rory's defeat is clear:
Read the small print. If you want a reasonable insurance contract, expect to pay an attorney several hundred dollars to scrutinize it.
Above all, don't look to Michigan's highest court for protection; it's already busy protecting somebody else.

Contact BRIAN DICKERSON at 248-351-3697 or dicker@freepress.com..

Here is the link to the article

Patient Safety and Quality Improvement Act

I just received this from the ASPL and wish to pass it on to you. Thanks to ASPL member Ed Rickert for writing the following-

This past Friday, July 29, President Bush signed into law the Patient Safety and Quality Improvement Act. The Act provides for the creation of Patient Safety Organizations, which will collect voluntary reports from providers, analyze the data and recommend steps to avoid future mistakes. The Act will cover medication errors, and includes pharmacies and pharmacists as providers. Most importantly, the Act provides that reports will be treated as privileged and confidential, and shall not be:

(1) subject to a Federal, State, or local civil, criminal, or administrative subpoena or order, including in a Federal, State, or local civil or administrative disciplinary proceeding against a provider;
(2) subject to discovery in connection with a Federal, State, or local civil, criminal, or administrative proceeding, including in a Federal, State, or local civil or administrative disciplinary proceeding against a provider;
(3) subject to disclosure pursuant to section 552 of title 5, United States Code (commonly known as the Freedom of Information Act) or any other similar Federal, State, or local law;
(4) admitted as evidence in any Federal, State, or local governmental civil proceeding, criminal proceeding, administrative rulemaking proceeding, or administrative adjudicatory proceeding, including any such proceeding against a provider; or
(5) admitted in a professional disciplinary proceeding of a professional disciplinary body established or specifically authorized under State law.

The full text of the Act can be accessed at http://thomas.loc.gov/cgi-bin/query/C?c109:./temp/~c109qP5jwP. An analysis of the new law will be published in the next issue of RX Ipsa Loquitor.

Rite Aid Suit

Attention Michigan Rite Aid Pharmacists-

If you work or have worked for Rite Aid in Michigan, now is the time to get in on my lawsuit to get overtime pay that Rite Aid failed to pay you. Yes, you are likely entitled to overtime pay. If this applies to you, call me before the statute of limitations runs out. My number is 586-598-4650.

Do it now before it's too late.

New Summer 2005 Newsletter

Here is the Summer 2005 Newsletter. It is currently being printed and sent out. If you wish to receive it through the mail, please e-mail me your address.

Summer Newsletter

Update on July 6 Oral Arugment in Grand Rapids

I argued on behalf of defendant Walker Street Pharmacy before a really engaged appelate court panel. All 3 judges had intelligent, hard hitting questions for both sides. I feel confident that I defended our profession ably. It's impossible to predict from the questionning how the court is inclined. So check back and you'll know the result as soon as I do. If our side loses, it will forever change the way you practice pharmacy.

Duty To Warn

Kudos to the National Association of Chain Drug Stores for this state-by-state compilation of cases regarding pharmacists' duty to warn.

Duty To Warn

Archived "The Pencak Report"

Here is the first release of the archived The Pencak Report. This is the Fall 2004 issue. Expect the new Summer 2005 issue to be sent soon. If you are interested in receiving a newsletter through the mail, please e-mail me your address.

Fall 2004