joint federal pharmacy seminar · a. hipaa does not prohibit a private right of action for tortious...
TRANSCRIPT
Pharmacy Case Law Update 2019: "Painstaking and Undertaken with a
Generous and Hospitable Approach..."
Col(r) David W. Bobb, RPh, MA, JD
Chief, Pharmacy Operations Division
Defense Health Agency
JOINT FEDERALPHARMACY SEMINARFEDERAL PHARMACY: SHARING THE VISION IN PHARMACY
Target Audience: Pharmacists and Pharmacy Technicians
ACPE#: 0202-0000-19-199-L03-P/T
Activity Type: Knowledge-based
ACPE Information
The American Pharmacist Association is accredited by the Accreditation Council for Pharmacy
Education as a provider of continuing pharmacy education.
“David W. Bobb declares no conflicts of interest, real or apparent, and no financial interests in any
company, product, or service mentioned in this program, including grants, employment, gifts, stock
holdings, and honoraria.”
Financial Disclosures
This program is not intended to be, and should not be viewed as legal
advice, as it contains only general principles of law and my interpretations
of court decisions. For specific circumstances, you are strongly urged to
contact an attorney familiar with the laws of your state or jurisdiction.
Likewise, it does not represent the official position of the Department of
Defense or any Branches thereof, the Veterans Administration, US Public
Health Service, US Coast Guard, Drug Enforcement Administration, United
States Government, or any Agency or Department thereof. In short, it’s
simply my best professional opinion designed to help you…
Disclaimer
State how a violation of HIPAA standards is now being used in an
unprecedented fashion to support a private cause of action against a pharmacy.
Determine when workplace violence statements support the termination of an
employee.
List the elements necessary to charge someone with criminal conspiracy to
defraud TRICARE.
Despite the differences in state and federal laws, list three ways military
pharmacies can assist civilian patients who may be using medical marijuana.
Learning Objectives
1) Elements the government must prove to find someone guilty of a criminal conspiracy include all of
the following EXCEPT:
A. Two or more people must be involved
B. The planned criminal act needs to be fully completed
C. All parties involved must have the specific intent to complete the objective of the criminal conspiracy
D. Only a step in the completion of the criminal act needs to be completed
2) In the Shepherd v. Costco Wholesale Corporation case, the Arizona court found that:
A. HIPAA does not prohibit a private right of action for tortious disclosure of healthcare information
B. HIPAA declines to create an independent federal statutory private right of action
C. HIPAA does not preempt state law claims for unauthorized disclosure of medical information
D. All of the above are correct
Self-Assessment
3) In the Tenerelli case, Mr. Tenerelli’s employment was terminated due to his comments regarding
workplace violence. When hearing the case, the court determined that:
A. Mr. Tenerelli’s comments were made jokingly, so he should not have been terminated
B. Mr. Tenerelli had a sustainable employment discrimination claim and should be rehired
C. Although there were discrepancies in Mr. Tenerelli’s statement and those of other witnesses, Rite Aid had
sufficient grounds to terminate him based on violations of its Workplace Violence Policy and Standards of
Conduct
D. Both A. and B. are correct
4) According to the New Jersey Compassionate Use Medical Marijuana Act, an employer is required to
provide reasonable accommodations for a medical marijuana user.
A. True
B. False
Self-Assessment
TRICARE Fraud
United States of America, Plaintiff-Appellee
v.
Cordera Hill, Defendant-Appellant
No. 17-13545
United States Court of Appeals, Eleventh Circuit
Florida
2018
What behavior constitutes an illegal kickback scheme that violates
the Anti-Kickback Statute?
TRICARE Fraud
The Parties:
➢Plaintiffs, United States of America
➢Defendants Cordera Hill, former Army Staff Sergeant
➢Interested Parties, Erin Berry, “Team Cream” leader
Anthonio Miller, former Navy Petty Officer
Questions:
➢What is the Anti-Kickback Statute (42 U.S.C. §1320a-7b)?
➢Did the conduct of Cordera Hill and Team Cream constitute
an illegal kickback and conspiracy?
TRICARE Fraud
The Anti-Kickback Statute makes it a criminal act if a person:“knowingly and willfully offers or pays any remuneration (including any kickback,
bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any
person to induce such person — (A) to refer an individual to a person for the furnishing
or arranging for the furnishing of any item or service for which payment may be made
in whole or in part under a Federal health care program, or
(B) to purchase, lease, order, or arrange for or recommend purchasing, leasing, or
ordering any good, facility, service, or item for which payment may be made in whole or
in part under a Federal health care program.”
TRICARE Fraud
Criminal Conspiracy:
A conspiracy occurs when two or more people agree to commit an illegal act and take
some step toward its completion. Conspiracy is an inchoate crime because it does not
require that the illegal act actually have been completed. For instance, a group of
individuals can be convicted of conspiracy to commit burglary even if the actual burglary
never happens. Conspiracy is also unique in that, unlike attempt, a defendant can be
charged with both conspiracy to commit a crime, and the crime itself if the crime is
completed.
Held:
➢ Hill’s conduct clearly violated the Anti-Kickback Statute and placed him in a
criminal conspiracy.
➢ His case was remanded for sentencing
Statements Regarding Workplace Violence
Peter Tenerelli, Plaintiff
v.
Rite Aid Corporation; and Does 1 through 100, inclusive, Defendants
No. 2:17-CV01011-JAM-EFB
United States District Court, E.D. California
California
2019
When can statements by an employee regarding workplace violence
rise to the level of a terminable offense?
Statements Regarding Workplace Violence
The Parties:
➢Plaintiffs, Peter Tenerelli, Pharmacy District Manager
➢Defendants, Rite Aid Corporation and additional Rite Aid
employees (Does 1- 100)
Questions:
➢What are the prima facie elements of an age discrimination case?
➢Was Tenerelli fired because of age discrimination and reporting
drug inventory discrepancies?, or
➢Were Tenerelli’s workplace violence statements sufficient to
justify his firing?
Statements Regarding Workplace Violence
Discussion:
➢Elements of a Prima Facie Age Discrimination Case➢Member of a protected class (40 yrs of age or older)
➢Performing competently in position held
➢Suffer an adverse employment action
➢Some other circumstance suggest a discriminatory motive
➢Workplace violence statements violated Rite Aid policy and
standards of conduct
Held:
➢No discriminatory motive by Rite Aid; the termination is justified
Negligence, HIPAA, and Wrongful Disclosure
Greg Shepherd, Plaintiff/Appellant
v.
Costco Wholesale Corporation, Defendant/Appellee
No. 1 CA-CV 18-0072
Court of Appeals of Arizona, Division One
Arizona
2019
Can HIPAA requirements inform the standard of care in a private
negligence action for wrongful disclosure of healthcare information?
Negligence, HIPAA, and Wrongful Disclosure
The Parties:
➢Plaintiffs, Greg Shepherd
➢Defendants, Costco Wholesale Corporation
Questions:
➢This case is an appeal from the dismissal of a complaint against
Costco
➢Did Costco’s conduct give rise to the intentional infliction of
emotional distress?
➢Can HIPAA standards be used as evidence in a private cause of
action?
Negligence, HIPAA, and Wrongful Disclosure
Discussion:
➢Intentional infliction of emotional distress? No;➢“The liability does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities…There is no occasion
for the law to intervene in every case where someone’s feelings are hurt”.
➢Costco contends that federal authority prevents Shepherd from
using a HIPAA violation as the basis of a lawsuit because HIPAA
does not create a private cause of action.
Held:➢“HIPAA does not prohibit a private right of action for tortuous disclose of
healthcare information, it merely declines to create an independent federal
statutory private right of action.”
Medical Marijuana Use
Justin Wild, Plaintiff/Appellant
v.
Carriage Funeral Holdings, Inc., d/b/a Feeney Funeral Home, LLC,
David B. Feeney, and Ginny Sanzo, Defendant/Appellee
Docket No. A-3072-17T3No. 1 CA-CV 18-0072
Superior Court of New Jersey, Appellate Division
New Jersey
2019
Can HIPAA requirements inform the standard of care in a private
negligence action for wrongful disclosure of healthcare information?
Medical Marijuana Use
The Parties:
➢Plaintiffs, Justin Wild
➢Defendants, Carriage Funeral Holdings, Feeney Funeral
Home, David B. Feeney, and Ginny Sanzo
Questions:
➢Is there a conflict between the New Jersey Law Against
Discrimination and the NJ Compassionate Use Act?
➢When Carriage terminated Wild for failing to disclose his
marijuana use, did it violate the Law Against Discrimination?
Medical Marijuana Use
Discussion:➢NJ LAD – very similar to what we talked about in the Tenerelli case earlier
today (protected class, satisfactory performance, adverse employment
action, some discriminatory motive)
➢NJ CUA – “Nothing in the act shall be construed to require…an employer to
accommodate the medical use of marijuana in any workplace”.
Held:➢No conflict in the two laws
➢The court will allow the case to continue as there may be some set of
circumstances the plaintiff can prove that shows discrimination.
Revocation of Controlled Substance Certificate of Registration
Pharmacy Doctors Enterprises, Inc. d/b/a Zion Clinic Pharmacy
v.
Drug Enforcement Administration
No. 18-11168
United States Court of Appels, Eleventh Circuit
Florida
2019
What is the appropriate standard of evidence an ALJ must use when
hearing a COR revocation case and what can constitute appropriate
evidence?
Revocation of Controlled Substance Certificate of Registration
The Parties:
➢Plaintiffs, Pharmacy Doctors Enterprises
➢Defendants, Drug Enforcement Administration
➢Interested Party, Veronica Taran, owner & operator of pharmacy
Questions:
➢What is the appropriate standard of evidence in this case?
➢Did the factual findings lack substantial evidence?
➢Was the decision to revoke the COR arbitrary and capricious?
Revocation of Controlled Substance Certificate of Registration
Discussion:
➢Substantial Evidence➢Lower standard than preponderance of the evidence
➢“Such relevant evidence as a reasonable person would accept as
adequate to support a conclusion”
➢Arbitrary and capricious➢“…the agency relied on factors Congress did not intend it to consider, the
agency entirely failed to consider an important aspect of the problem, or
the agency offered an explanation for its decision that runs counter to the
evidence before the agency”
Held:
➢ The ALJ acted properly in revoking the pharmacy’s COR
1. Be vigilant for signs of TRICARE fraud, even by members of the military.
2. Any suggestions of workplace violence need to be reported to appropriate
entities.
3. More and more courts are allowing patients to use HIPAA standards as a basis
for private causes of action. Ensure you pharmacy meets compliance standards.
4. As the number of states permitting medical marijuana use increases, be
prepared to answer patient’s questions regarding drug interactions, etc.
5. Ensure your pharmacy is in compliance with all DEA regulations and
standards.
Take-aways
1) Elements the government must prove to find someone guilty of a criminal conspiracy include all of
the following EXCEPT:
A. Two or more people must be involved
B. The planned criminal act needs to be fully completed
C. All parties involved must have the specific intent to complete the objective of the criminal conspiracy
D. Only a step in the completion of the criminal act needs to be completed
2) In the Shepherd v. Costco Wholesale Corporation case, the Arizona court found that:
A. HIPAA does not prohibit a private right of action for tortious disclosure of healthcare information
B. HIPAA declines to create an independent federal statutory private right of action
C. HIPAA does not preempt state law claims for unauthorized disclosure of medical information
D. All of the above are correct
Self-Assessment
3) In the Tenerelli case, Mr. Tenerelli’s employment was terminated due to his comments regarding
workplace violence. When hearing the case, the court determined that:
A. Mr. Tenerelli’s comments were made jokingly, so he should not have been terminated
B. Mr. Tenerelli had a sustainable employment discrimination claim and should be rehired
C. Although there were discrepancies in Mr. Tenerelli’s statement and those of other witnesses, Rite Aid had
sufficient grounds to terminate him based on violations of its Workplace Violence Policy and Standards of
Conduct
D. Both A. and B. are correct
4) According to the New Jersey Compassionate Use Medical Marijuana Act, an employer is required to
provide reasonable accommodations for a medical marijuana user.
A. True
B. False
Self-Assessment
Thank you for your time and attention!
Col(r) David W. Bobb, RPh, MA, JD
Chief, Pharmacy Operations Division
Defense Health Agency
[email protected], 703-681-8920
JOINT FEDERAL
PHARMACY SEMINARFEDERAL PHARMACY: SHARING THE VISION IN PHARMACY