News Stream

Court may not order board to delete discipline from databank during appeal

A state court in Alabama overturned a lower court’s decision ordering the state’s pharmacy board to remove information from the National Practitioners Data Bank during the pendency of a disciplinary appeal.

The board had a mandatory duty to report disciplinary actions to the Data Bank, regardless of whether a licensee appeals, the court found October 27 (Ex Parte Alabama State Board of Pharmacy).

In 2016, the board suspended pharmacist Demetrius Parks’s personal license and those of two pharmacies owned by her for five years. Parks appealed, asking the reviewing court to stay the board’s decision while the judicial review was pending. Although the court granted that request subject to conditions prohibiting Parks from dispensing controlled drugs, Parks later filed another request, asking the court to remove language regarding her suspension from the National Practitioner Data Bank while her appeal was pending.

While allowing the parties to continue the hearing on that request, the court ordered a “temporary stay” which not only required the board to clear the language from the Data Bank, but added a provision allowing Parks to resume practicing.

In response to that order, the board filed a mandamus petition with the state’s Court of Civil Appeals, arguing that the trial court was required to allow the board to present evidence before it changed the conditions of the original stay allowing Parks’s pharmacies to remain open but preventing her from practicing. The appeals court agreed, ordering the lower court to vacate its order and hold a hearing on the requested stay.

The trial court held that hearing, accepted evidence from the board, and then made substantially the same decision again, allowing Parks to practice during the pendency of the appeal and ordering the board to send a void report to the Data Bank, which would remove Parks’s information. The board then again filed a writ of mandamus, asking the Court of Appeals to order the lower court to reinstate the original stay.

The court agreed with the board again. Judge William Thompson, in his written opinion for the court, noted that, under federal law, the state is required to submit information to the Data Bank within 30 days when an adverse action is taken against a licensee, as well as any revisions of that action. While a dispute process exists within the federal regulations establishing Data Bank procedures, Parks had declined to take part in that process.

“The court’s research has revealed no authority that would exempt the board from these mandatory reporting requirements,” Judge Thompson wrote. According to the Data Bank’s guidebook, which the lower court had relied upon when ordering the board to void its report, the only three reasons for voiding information sent to the database were if the action was reported in error, if it did not meet reporting requirements, or if the action was overturned on appeal.

This suggests, Judge Thompson continued, that a board “is still required to make an initial report of an adverse action even when the health-care practitioner or entity who is the subject of the report has appealed from that action.”

The trial court’s order that the board void its report of Parks’s discipline to the Data Bank “requires the board to violate its mandatory obligations under federal law . . . and impedes the accomplishment of Congress’s objectives in enacting the [Healthcare Quality Improvement Act] and the legislative scheme Congress developed to carry out those objectives,” wrote Judge Thompson. Federal law, therefore, preempted that order.

The board also challenged the original stay on other grounds, but the Court of Appeals rejected those arguments, saying that the board had not overcome the presumption that the stay would not be detrimental to public safety or that the lower court had not abused its discretion in upholding the board’s decision.