Kenney v. Bureau of Prof'l & Occupational Affairs, State Bd. of Pharmacy ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Kenney, Pharm.D., :
Petitioner :
:
v. : No. 10 C.D. 2018
: Argued: November 13, 2018
Bureau of Professional and Occupational :
Affairs, State Board of Pharmacy, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 8, 2019
Michael Kenney, Pharm.D. (Kenney), petitions for review of an
adjudication of the Bureau of Professional and Occupational Affairs, State Board of
Pharmacy (Pharmacy Board), denying his petition to lift the restriction on his
pharmacy license and end his probation. Kenney argues that the Pharmacy Board
erred and abused its discretion in denying his petition because he presented
uncontroverted evidence that he has successfully completed his treatment programs;
has fully satisfied the terms of his probation; and is ready to resume his profession
as a fully-licensed pharmacist. For the reasons that follow, we vacate the Board’s
order and remand this matter to the Board for further proceedings consistent with
this opinion.
Background
In 2014, Kenney applied for a license to practice as a pharmacist in
Pennsylvania. In the application, he informed the Pharmacy Board that he was a
licensed pharmacist in the State of Florida and that he was enrolled in the Florida
Professional Resource Network, referred to as the impaired practitioner program,1
as a consequence of his 2008 arrest for driving under the influence of alcohol.
On September 16, 2014, Kenney entered into a voluntary consent
agreement (Voluntary Agreement) with the Pennsylvania Bureau of Professional
and Occupational Affairs (Bureau). The Voluntary Agreement provided that the
Pharmacy Board would issue Kenney a pharmacy license; suspend the license for
three years; and stay the suspension in favor of probation for three years, i.e., until
September 16, 2017. Voluntary Agreement, 9/16/2014, at 4, ¶7.e; R.R. 8. During
the period of probation, Kenney was required to abstain from consuming alcohol and
undergo a mental health evaluation, drug treatment and random drug testing. The
probation included monitoring by the Voluntary Recovery Program, which is a part
of the Pharmacy Board’s Professional Health Monitoring Program (PHMP).2 On
November 18, 2014, the Pharmacy Board issued Kenney a pharmacy license in
accordance with the terms of the Voluntary Agreement.
On December 10, 2015, Kenney settled an administrative complaint
with the Florida Board of Pharmacy that was prompted by Kenney’s failure to
comply with Florida’s impaired practitioner program. Kenney agreed to a
suspension of his Florida license, until he appeared before the Florida Board of
Pharmacy and demonstrated that he could safely practice pharmacy. Following
reinstatement of his license, Kenney agreed to have his license placed on probation
for two years and comply with certain conditions.
1
The Florida impaired practitioner program monitors the evaluation, care, and treatment of
healthcare professionals impaired by drug or alcohol use. Florida Administrative Complaint at 2,
¶7; Reproduced Record at 73 (R.R. __).
2
The PHMP assists licensed professionals who are suffering from a mental or physical disorder to
receive treatment and monitoring so that they can safely practice. The PHMP operates two
programs: the Voluntary Recovery Program and the Disciplinary Monitoring Unit.
2
In response to Florida’s administrative complaint, the Pharmacy Board
initiated its own administrative enforcement action against Kenney, which was
resolved with a Consent Order dated December 15, 2015. The Consent Order
acknowledged that on May 9, 2014, Kenney voluntarily enrolled in a program
operated by the Secundum Artem Reaching Pharmacists with Help (SARPH) that is
approved by the Pharmacy Board. Since November 2014, Kenney has been
monitored by the Pharmacy’s Board’s PHMP. The Consent Order suspended
Kenney’s license for three years and stayed the suspension in favor of three years of
probation. During probation, Kenney agreed to continue to comply with the
monitoring set forth in the Voluntary Agreement.
In May 2017, Kenney requested a release from continued monitoring
and a full reinstatement of his license.3 On July 11, 2017, the Pharmacy Board held
a hearing on Kenney’s request that was conducted by the Pharmacy Board’s counsel.
At the hearing, Kenney testified about his work as a pharmacist in
Florida and Pennsylvania. Although Kenney was arrested in 2008 for driving under
the influence of alcohol, he has never been impaired while working as pharmacist.
Kenney testified that in 2011, he entered into a five-year monitoring
contract with the Florida impaired practitioner program. He had completed two
years when the pharmacy where he had been working closed. Kenney decided to
relocate to Costa Rica. Prior to departing, he executed the documents necessary to
withdraw from the practice of pharmacy in Florida.
In November 2013, he returned to Philadelphia, Pennsylvania in order
to care for his ailing father. Two months later, Kenney contacted the Florida
impaired practitioner program and learned that he had violated the program by not
3
The Bureau did not file a response to Kenney’s petition.
3
reporting his return to the United States within two days of his arrival. In December
of 2015, he resolved this matter with the Florida Board of Pharmacy by placing his
Florida license on probation. It has since been reinstated.
On May 9, 2014, Kenney voluntarily entered into the 36-month contract
with SARPH. The program required him to check in daily; attend three recovery
meetings every week; and pass random and observed drug tests. He has successfully
completed this program. His last Board-approved psychiatric evaluation was
favorable, stating that: “alcohol dependence in extended full remission, no indication
for use of any psychotropic medications, no indication for specific treatment for any
history of addiction problems and fit to practice pharmacy with the reasonable skill
and satiety.” Notes of Testimony, 7/11/2017, at 22 (N.T. __); R.R. 111.
Kenney testified that since enrolling in the SARPH program, he has
paid more than $7,000 for Pharmacy Board costs; $2,400 for the required psychiatric
evaluations; and over $10,000 for the drug screening tests. In the meantime, he has
been working at a lower-paying pharmacy job because of his probation. Since 2011,
he has attended over 800 recovery meetings and passed 140 random drug tests.
Kenney asked the Pharmacy Board to reinstate his license for the following reasons:
I pose no threat to the health or safety of the public. I passed
every drug screen, and I’ve attended every meeting, paid every
fine and disclosed to every employer the embarrassment of my
DUI’s monitoring requirements.
I have matured a great deal since my last drink five and a half
years ago, working the steps, having a sponsor, participating in
weekly recovery meetings, and adhering to the monitoring
program guidelines over this length of time will indeed impart a
great deal of wisdom strength and serenity to those who allow
the spirit to guide them.
I am so eager to put this part of my life behind me with a new
chapter of my life. I[,] therefore, humbly request, based on the
4
extensive results of my monitored recovery, medical evaluations
and length of time since the DUI offense that the Board
considered [sic] dismissing my consent agreement at this time….
N.T. 23-24; R.R. 112-13.
On behalf of Kenney, Kathie Simpson, Executive Director of the
SARPH program, testified.4 She confirmed that Kenney has fully complied with the
program. Kenney has passed 84 drug tests; maintained contact with his sponsor;
actively participated in the 12-step meetings; and provided reports verifying his
attendance. Simpson testified that Kenney has been working at a pharmacy since
June 2015 and that his employer reports exemplary performance on quarterly written
reports. Kenney has been free of any psychoactive substances and alcohol since
October 2011. Simpson opined that Kenney had “demonstrated rehabilitation.”
N.T. 14; R.R. 103.
In addition to her testimony, on July 10, 2017, Simpson submitted a
letter supporting Kenney’s request to be released from his probation. In her four-
page letter, Simpson detailed all that Kenney had done to comply with all SARPH
and PHMP monitoring over the course of many years. She described Kenney “as a
model participant in our program” and “an asset to the pharmacy profession.” R.R.
88. Her letter stated that, “[w]e believe that he has demonstrated rehabilitation to
the extent that the likelihood” of a future violation is minimal. Id.
At the hearing, Simpson stood by her support for Kenney but
acknowledged an error in her letter. Specifically, the penultimate paragraph of her
letter stated that the Bureau’s Prosecution Division joined her in not opposing the
restoration of Kenney’s unrestricted license as of September 16, 2017, when his
4
Simpson stated that her program works “in conjunction with the [PHMP] if clients receive a
consent agreement or a [Pharmacy] Board order, but we also monitor participants who reach out
to [SARPH] on their own[.]” N.T. 9; R.R. 98.
5
monitoring under his Voluntary Agreement ended by its own terms. At the hearing,
Simpson requested that this sentence in the letter be deleted because the PHMP
opposed an early termination of Kenney’s probation. The Pharmacy Board accepted
Simpson’s letter, as revised.
On behalf of the Bureau, Kevin Knipe, manager of the PHMP, testified.
Knipe confirmed that Kenney had fully participated in the monitoring required by
his probation, which was to end on December 15, 2018, under the Consent Order.
Knipe testified that the PHMP did not support early termination of probation, for
Kenney or for any pharmacist.
On December 5, 2017, the Pharmacy Board denied Kenney’s petition.
The Pharmacy Board explained that Kenney had not obtained the written
concurrence of the Prosecution Division; had not submitted his petition on the
PHMP form; and had not been on probation for at least three years as required by
the Consent Order.
Appeal
On appeal,5 Kenney raises three issues.6 First, he argues that the
Pharmacy Board erred and abused its discretion in denying his petition to terminate
his probation because the Consent Order did not make the three-year probation an
absolute requirement. Second, he argues that the Pharmacy Board erred and abused
its discretion in denying his petition for the stated reasons that Kenney failed to
5
This Court’s review determines whether the Pharmacy Board abused its discretion, committed
an error of law, or violated constitutional rights. DePanfilis v. State Board of Pharmacy, 551 A.2d
344, 345 (Pa. Cmwlth. 1988).
6
In his brief, Kenney raises four issues on appeal. However, for purposes of this opinion, we have
combined and rearranged the order of Kenney’s issues.
6
submit his petition on the correct form and obtain the approval of the Bureau’s
Prosecution Division. Third, Kenney argues that the Pharmacy Board capriciously
disregarded his unrebutted and overwhelming evidence of rehabilitation and
sobriety.7
Licensing of Pharmacists
We begin with a review of the applicable law. The practice of
pharmacy is a regulated profession in the Commonwealth of Pennsylvania, and the
terms of this regulatory regime are set forth in the Pharmacy Act.8 The Pharmacy
Act requires all persons practicing in the pharmacy profession to be licensed, and it
establishes the standards that a pharmacist must meet in order to be licensed. See
Section 3 of the Pharmacy Act, 63 P.S. §390-3. The standards require, inter alia,
that the licensee hold a degree in pharmacy, complete an internship, pass an
examination administered by the Pharmacy Board, be of good moral and
professional character and be fit to practice pharmacy.9 Section 3(a) of the Pharmacy
Act, 63 P.S. §390-3(a).
To enforce the terms of the Pharmacy Act, the General Assembly has
created the Pharmacy Board to review applications for licensure, investigate alleged
7
The expiration of Kenney’s three-year term of probation on December 15, 2018, does not render
his appeal moot because the probation does not terminate automatically. Under the Consent Order,
he must petition the Board to have his license restored without restriction even after his probation
ends.
8
Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. §§390-1 – 390-13.
9
The Board may issue a license to practice pharmacy to a person already licensed as a pharmacist
in another state without examination, so long as that person produces satisfactory evidence of
having
had the required secondary and professional education and training, including
internship, and is possessed of good character and morals as required of applicants
for licensure under the provisions of [the Pharmacy Act.]
Section 3(g) of the Pharmacy Act, 63 P.S. §390-3(g).
7
violations of the Pharmacy Act and initiate enforcement actions. Section 6(k) of the
Pharmacy Act, 63 P.S. §390-6(k). In this way, the Pharmacy Board maintains
discipline in the profession.
Under Section 5(a) of the Pharmacy Act, 63 P.S. §390-5(a), the
Pharmacy Board is authorized to revoke or suspend a license if the pharmacist
violates the licensing standards. For example, the Pharmacy Board can suspend or
revoke a pharmacist’s license if he becomes unfit to practice pharmacy; procured his
license through fraud or misrepresentation; violated any provision of the Pharmacy
Act; or had a license to practice pharmacy suspended or revoked in another state.
Section 5(a) of the Pharmacy Act, 63 P.S. §390-5(a). A license suspension or
revocation entitles the pharmacist to a full evidentiary hearing conducted in
accordance with the Administrative Agency Law, 2 Pa. C.S. §§501-508, 701-704.
In place of a hearing, a charge of misconduct can be resolved in a consent order.
A consent order has the same effect as an adjudication issued in
accordance with the Administrative Agency Law. Professor of Law Charles H.
Koch, Jr. explains that
[a] consent order is an agreement reached in an administrative
proceeding between the parties one of which is usually the
agency’s litigation staff. The agreement is then presented to the
agency head…. [If the agency head accepts the agreement,] it
issues an order much as a court issues a consent decree…. A
[consent] order will have the same effect as an order issued after
an administrative adjudication.
Charles H. Koch, Jr., ADMINISTRATIVE LAW AND PRACTICE, Settlement, §5:43, at
160 (3d ed. 2010). A consent order “is in essence a contract binding the parties
thereto.” Cecil Township v. Klements, 821 A.2d 670, 674 (Pa. Cmwlth. 2003)
(quoting Commonwealth v. United States Steel Corporation, 325 A.2d 324, 328 (Pa.
8
Cmwlth. 1974)). This Court will construe or interpret a consent order as it would a
contract. See generally Cecil Township, 821 A.2d at 674. This Court will read the
consent order as a whole and interpret each of the provisions together with the other
provisions. Westinghouse Air Brake Division v. United Electrical, Radio and
Machine Workers of America Local 610, 440 A.2d 529, 533 (Pa. Super. 1982).
With these principles in mind, we consider Kenney’s arguments that
the Pharmacy Board erred and abused its discretion in denying his petition to end
his probation.
Modification of Probation Period
In his first issue, Kenney argues that the Pharmacy Board abused its
discretion by treating the three-year probation as an absolute requirement when, in
fact, it has the discretion to modify his term of probation and has ample reasons to
do so in Kenney’s case. Kenney’s probation period was extended under the Consent
Order solely because of the Florida disciplinary matter that, in turn, was related to
his delay in contacting the Florida impaired practitioner program upon his return to
the United States. Florida’s action had nothing to do with alcohol abuse. Ironically,
the Florida matter has been resolved, and his Florida probation has ended. Since
May 2014, when Kenney voluntarily agreed to participate in the SARPH program,
he has fully complied with all monitoring requirements.
The Bureau argues that the Consent Order required Kenney to secure
the consent of the Prosecution Division and the PHMP to seek an early termination
of his probation. Because he did not secure these approvals, the Pharmacy Board’s
decision appropriately declined to end his probation before December 15, 2018.
The Consent Order, which took effect on December 15, 2015, provided
for a three-year probation. Paragraph 5.c states, in relevant part, as follows:
9
[Kenney’s] license … shall be indefinitely SUSPENDED for no
less than three (3) years, such suspension to be immediately
STAYED in favor of no less than three (3) years of
PROBATION, unless that period of probation is extended or
modified for cause by mutual agreement of [Kenney] and the
[PHMP], Disciplinary Monitoring Unit (“DMU”) case
manager….
Consent Order at 5, ¶5.c; R.R. 35 (emphasis added). Notably, Paragraph 5.c states
that the three-year period of probation may be “extended or modified.” Id. The
word “modified” can only mean a reduction in the period of probation or else it is
redundant of “extended.” In rejecting Kenney’s request, the Pharmacy Board failed
to consider the language of Paragraph 5.c that expressly authorizes a modification
of his probation.
Paragraph 5.c also states that the modification can be done by “mutual
agreement” with the PHMP. The record established, however, that the PHMP has
adopted a rigid policy to oppose all requests for early termination of probation in
order to reduce its workload.10 This policy suggests a lack of good faith and fair
10
Knipe testified, in relevant part, as follows:
[Attorney:] And what is [the] PHMP’s position with regard to the present
Reinstatement Petition submitted by Mr. Kenney to the [Pharmacy]
Board?
[Knipe:] The PHMP does not support early termination.
[Attorney:] … why is that [the] PHMP’s position?
[Knipe:] The concern regarding the liability [the] PHMP may face if we
support early termination of someone’s monitoring requirements,
and the possibility of having many more requests of this nature if
such a policy, [the] PHMP were ever to adopt early termination.
N.T. 33; R.R. 122 (emphasis added). Knipe’s stated concern for “liability” rings hollow given
sovereign immunity. Although sovereign immunity has been waived in certain circumstances, it
has not been waived for a mistake in judgment by PHMP. See 42 Pa. C.S. §8522 (exceptions to
sovereign immunity). PHMP’s real concern is having to review requests on their merits. If Knipe
believes that early termination of monitoring requirements will not be well received in the court
10
dealing on the part of the Pharmacy Board in executing the Consent Order. At a
minimum, the PHMP’s position makes the promise of a modification set forth in
Paragraph 5.c an illusory promise.
Further, the Pharmacy Act authorizes only the Pharmacy Board to place
a licensee on probation and require a licensee to submit to treatment. See Section
5(c) of the Pharmacy Act, 63 P.S. §390-5(c).11 Although the Pharmacy Board may
employ consultants “to assist it for any purposes,” it “may not delegate any of its
final decision making responsibilities to any consultant.” Section 6(k)(4) of the
Pharmacy Act, 63 P.S. §390-6(k)(4). Contrary to this statutory directive, the
Pharmacy Board delegated its authority to modify the term of Kenney’s probation
to the PHMP.
of public opinion, he should advise PHMP not to participate in consent agreements that authorize
early termination of probation.
11
It states:
When the board finds that the license of any pharmacist may be refused, revoked
or suspended under the terms of subsection (a), the board may:
(1) Deny the application for a license.
(2) Administer a public reprimand.
(3) Revoke, suspend, limit or otherwise restrict a license as
determined by the board.
(4) Require a licensee to submit to the care, counseling or
treatment of a physician or a psychologist designated by the
board.
(5) Suspend enforcement of its finding thereof and place a
licensee on probation with the right to vacate the
probationary order for noncompliance.
(6) Restore or reissue, in its discretion, a suspended license to
practice pharmacy and impose any disciplinary or corrective
measure which it might originally have imposed.
Section 5(c) of the Pharmacy Act, 63 P.S. §390-5(c).
11
In sum, the Consent Order permitted Kenney to petition for an early
end to his probation, and he did not need the consent of the PHMP to file his petition.
For these reasons, the Pharmacy Board erred and abused its discretion in denying
Kenney’s petition for early termination of his probation for the stated reason that he
needed to have completed a minimum of at least three years of probation or obtained
the approval of the PHMP.
Use of the PHMP Form and Concurrence of Prosecution Division
In his second issue, Kenney argues that the Pharmacy Board erred in
denying his petition for the stated reason it was not presented on the form provided
by the PHMP and was not agreed to by the Bureau’s Prosecution Division. Kenney
contends that neither condition was required by the Consent Order.
The Consent Order states, in pertinent part, as follows:
[a]fter successful completion of the minimum period of
probation, [Kenney] may petition the Board, upon a form
provided by the PHMP, to reinstate [his] authorizations to
practice the profession to unrestricted, non-probationary status
upon an affirmative showing that [he] has complied with all
terms and conditions of this Agreement and that [his] resumption
of unsupervised practice does not present a threat to the public
health and safety.
Consent Order at 22-23, ¶5.g; R.R. 52-53 (emphasis added). At the hearing, Knipe
testified that the PHMP refused to provide a reinstatement form to Kenney because
Kenney had not completed his minimum term of probation. It was this refusal that
prevented Kenney from using the requisite form. This is circular reasoning.
Even so, the requirement of the PHMP form applies where the
respondent has completed the period of probation stated in the Consent Order. It has
no application here where Kenney seeks a modification to his probation period.
12
Further, the Consent Order does not prescribe the use of any particular form when
seeking to modify the period of probation.
The Pharmacy Board interpreted Paragraph 9 of the Consent Order to
require the consent of the Bureau before Kenney could seek to modify his term of
probation. Paragraph 9 states, in pertinent part, as follows:
[Kenney] agrees, as a condition of entering into this Agreement,
not to seek modification of it at a later date without first obtaining
the express written concurrence of the Prosecution Division of
the Department of State.
Consent Order at 25, ¶9; R.R. 55. Paragraph 5.c of the Consent Order expressly
permitted Kenney to seek a modification of his probation period. Paragraph 9 is
irrelevant because Kenney seeks to modify his probation, not the Consent Order.
Rather, he seeks to implement Paragraph 5.c of the Consent Order.
We conclude that Kenney did not need written concurrence from the
Prosecution Division in order for the Board to consider his petition for early
termination of probation. Further, Kenney did not need to submit his petition on a
form provided by the PHMP. Accordingly, the Pharmacy Board erred and abused
its discretion in denying Kenney’s petition on these stated grounds.
Capricious Disregard of Evidence
In his third issue, Kenney contends that the Pharmacy Board
capriciously disregarded his evidence of sobriety, program compliance, and
rehabilitation, none of which was rebutted in any fashion by the Bureau. The Bureau
responds that the Pharmacy Board considered Kenney’s evidence, but it has the
discretion to deny a request for early release from probation and so exercised it.
A capricious disregard of evidence occurs “when there is a willful and
deliberate disregard of competent testimony and relevant evidence which one of
13
ordinary intelligence could not possibly have avoided in reaching a result.” Bentley
v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology,
179 A.3d 1196, 1200 (Pa. Cmwlth. 2018) (quoting Station Square Gaming L.P. v.
Pennsylvania Gaming Control Board, 927 A.2d 232, 237 (Pa. 2007) (internal
quotations omitted)). “Where there is strong critical evidence that contradicts
contrary evidence, the adjudicator must provide an explanation as to how it made its
determination.” Id. In other words, “[t]he ultimate question is whether an
adjudicator has failed to give a proper explanation of overwhelming critical
evidence.” Balshy v. Pennsylvania State Police, 988 A.2d 813, 836 (Pa. Cmwlth.
2010) (quoting Grenell v. State Civil Service Commission, 923 A.2d 533, 538 (Pa.
Cmwlth. 2007)).
In the adjudication, the Pharmacy Board recited that it “considered the
testimony of the witnesses and the documentary evidence[.]” Board Adjudication at
3; R.R. 3. It summarized Kenney’s evidence as follows:
[Kenney’s] testimony indicated his full compliance with the
recovery program in Pennsylvania. He testified regarding his
disciplinary history in Florida, and that his license remains on
probationary status in Florida. (However, after the hearing,
[Kenney], through his newly-hired attorney, requested the
[Pharmacy] Board to reopen the record to allow for submission
of new documents from the Florida Board. This request was
granted, and [Kenney] submitted documents including a Florida
Board order terminating [his] Florida probation effective
October 5, 2017[].)
Board Adjudication at 2; R.R. 2. The Pharmacy Board stated that Simpson provided
Kenney’s “recovery history and indicated that he was in full compliance with the
SARPH program[,]” but Knipe “recommended denial” of Kenney’s petition. Id. On
14
these bases, the Pharmacy Board concluded that “the record [did] not support
granting the [p]etition for early release….” Id. at 3; R.R. 3.
Absent from the Pharmacy Board’s adjudication, however, is any
discussion of the length of Kenney’s time in various treatment programs, the number
of therapy sessions he attended, the number of drug screenings he passed, or the
significant, out-of-pocket costs he has incurred for participation in the programs.
Additionally, the Pharmacy Board made no comment on his employment history as
a pharmacist or his exemplary performance evaluations from his current employer.
It is uncontradicted that Kenney complied with the requirements of the
SARPH program and has been in a treatment program for more than three years.
Kenney offered considerable evidence about his treatment and employment. The
Bureau did not offer an iota of evidence that Kenney needed to remain in the SARPH
program a minute longer. The Pharmacy Board did not discredit Kenney’s
testimony in any way. Simply, the Pharmacy Board ignored this critical evidence
without comment in refusing to modify Kenney’s period of probation. We agree
that the Pharmacy Board has capriciously disregarded competent and relevant
evidence.
Moreover, in its adjudication, the Pharmacy Board mischaracterized
Simpson’s testimony as not making a recommendation. See Board Adjudication at
2; R.R. 2. At the hearing, Simpson opined that Kenney had “demonstrated
rehabilitation.” N.T. 14; R.R. 103. Further, in her letter to the Pharmacy Board’s
counsel, Simpson stated:
Thank you for considering [Kenney] for early completion of his
DMU Consent Agreement and Order. [Kenney] will have 36
months of documented, verified abstinence with the [SARPH]
program on July 25, 2014 (the date of his first screen). We
believe he has demonstrated rehabilitation to the extent that
15
the likelihood of him violating the Practice Act or Law in the
future is minimal. We believe he has demonstrated that he is
an asset to the Pharmacy profession.
R.R. 88 (emphasis in original). Simpson’s testimony and the content of her letter
cannot be reconciled with the Pharmacy Board’s statement that Simpson did not
make a recommendation.
At the hearing, Simpson explained that, in her initial correspondence to
the Pharmacy Board’s counsel in May 2017, she recommended that Kenney’s
license be restored to unrestricted status as of September 16, 2017. On the eve of
the hearing, Simpson updated her letter to reflect additional drug screening tests that
Kenney passed as well as the most recent report received from his employer. Then,
at the hearing, Simpson stated that she was not “providing any recommendation”
and requested deletion of the penultimate sentence in her letter. N.T. 14; R.R. 103.
Simpson explained that she did so in order to be consistent with the PHMP. Stated
otherwise, Simpson’s decision related to her working relationship with the PHMP
and not to the merits of her belief that Kenney is rehabilitated and able to practice
pharmacy. We reject the Pharmacy Board’s characterization of Simpson’s
testimony.
The Board erred in relying on Knipe’s testimony because it was based
upon the PHMP’s inflexible policy, not Kenney’s record, and a mischaracterization
of the import of Simpson’s testimony. At the same time, the Board made no
comment on the extensive evidence to support Kenney’s full license restoration,
which constituted capricious disregard of evidence.
Conclusion
The Pharmacy Board erred and abused its discretion in denying
Kenney’s petition to end his probation for the stated reasons that Kenney had not
16
been on probation for at least three years; lacked written concurrence from the
Prosecution Division; and failed to use the PHMP form. The Board capriciously
disregarded Kenney’s evidence of rehabilitation, program compliance, and
exemplary employment record. Accordingly, we vacate the Pharmacy Board’s
adjudication and remand the matter for an expeditious review on the current record
of Kenney’s petition to end probation. In doing so, the Pharmacy Board shall
consider Kenney’s uncontroverted evidence of rehabilitation, program compliance
and exemplary employment, and issue a determination on his authorization to
practice the profession in an unrestricted, non-probationary status.
_____________________________________
MARY HANNAH LEAVITT, President Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Kenney, Pharm.D., :
Petitioner :
:
v. : No. 10 C.D. 2018
:
Bureau of Professional and Occupational :
Affairs, State Board of Pharmacy, :
Respondent :
ORDER
AND NOW this 8th day of February, 2019, the order of the Bureau of
Professional and Occupational Affairs, State Board of Pharmacy (Pharmacy Board),
dated December 5, 2017, is VACATED, and the matter is REMANDED to the
Pharmacy Board for further proceedings consistent with the attached opinion. The
Pharmacy Board shall issue the determination within 30 days of the next meeting of
the Pharmacy Board.
Jurisdiction relinquished.
______________________________________
MARY HANNAH LEAVITT, President Judge