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Board lacked authority to discipline physician after license expired

The state’s medical board lacked authority to discipline a physician who had adulterated drugs when the physician’s license was expired, the Court of Appeals of Indiana held June 8.

Indiana Board of Pharmacy vs. Elmer

In 2017, pharmacist Paul Elmer was indicted by a federal grand jury on the grounds that a pharmacy he operated was compounding drugs which were under- and over-potent and that he had acted to hide that fact from the U.S. Food and Drug Administration and the public, and had improperly adulterated drugs. The board summarily suspended his license.

Elmer appealed, but in 2018 he failed to renew his license. Eventually, Elmer was convicted on several criminal counts, and the state then moved to revoke Elmer’s license.

Elmer argued that the state did not have the authority to revoke an expired license, but the board revoked his license anyway, on the grounds of his criminal convictions. Elmer appealed, and a trial court held that the board had exceeded its authority by revoking Elmer’s expired license. The board appealed that decision.

On appeal, the Court of Appeals agreed with Elmer. Under Indiana statute, the board is authorized to discipline the license of practitioners. However, the court cited statutory law which states that a non-renewed license expires and is invalid. “Obviously, a person with an invalid license is not legally permitted to practice pharmacy,” wrote Judge Terry Crone for the court.

The board objected to this reasoning, noting that, under such reasoning, pharmacists could just let their licenses expire in order to escape discipline. However, Judge Crone wrote that, “If the purpose is to protect the public, we observe that regardless of whether an individual’s license expires or is revoked, that individual can no longer legally practice pharmacy. In either case, the public is no longer in danger of that individual’s practice of pharmacy.”

“The Board’s concern with protecting the public is well taken, but the Board is able to satisfy this obligation pursuant to which permit an individual with an expired license to reapply for reinstatement . . . If and when an individual with an expired, invalid license applies for reinstatement, then the Board has an obligation to determine whether reinstatement is warranted.”