NHPA is studying patient safety issues that the pharmacist confronts in his/her practice of pharmacy today. Pharmacist duties that require time, professional judgment, and the exercise of standard of care include (but are not limited to) the following:
1. Verifying patient prescriptions.
2. Reading, interpreting and evaluating, and when indicated intervening, with respect to every prescription dispensed to a patient when engaged in the practice of pharmacy as defined under NH RSA 318:1 XIV.
3. Drug utilization review.
4. Conferring with providers regarding patient care.
5. Managing, supervising and overseeing pharmacy interns.
6. Managing, supervising and overseeing pharmacy technicians.
7. Ordering, administrating and supervising the administration of immunizations.
8. Communicating directly with patients when offering and/or providing counseling.
9. Overall management and supervision of the pharmacy.
When considering the challenges faced by pharmacists today, NHPA calls attention to the following specific standards of NH practice (emphasis added):
Section Ph 501.01 - Standards of Conduct: (a) The ethical standards set forth in this part shall bind all licensees, and violation of any such standard shall be a basis for the imposition of disciplinary sanctions.(b) A licensed pharmacist shall:(1) Hold the health and safety of patients to be of first consideration and render to each patient the full measure of his/her ability as an essential health practitioner; (4) Utilize and make available his/her knowledge as might be required in accordance with his/her best professional judgment;(6) Not engage in any activity that will bring discredit to the profession and shall expose, without fear or favor, illegal or unethical conduct in the profession;(10) Not agree to practice under terms or conditions which tend to interfere with or impair the proper exercise of professional judgment and skill, which could cause a deterioration of the quality of his/her service or which require him/her to consent to unethical conduct; (13) Fulfill all professional obligations conscientiously and with due respect for the physical and well-being of the community, and, uphold at all times the standards of the profession of pharmacy.
Particularly in the community pharmacy practice setting, “performance metrics” have been used by employers to measure, manage, and assess employee pharmacists. The employee pharmacist is expected to accomplish his/her professional duties, meet performance metrics, and provide standard of care pharmacy services to patients. Pharmacist overlap is disfavored and often not available, thereby increasing the pharmacists dependence on pharmacy interns and technicians. The education, training and wages for interns and technicians is often outside the authority of the employee pharmacist. With this general background, community pharmacists are about to embark upon the most extensive and demanding public immunization program in the history of our country. Community pharmacies have been identified as an accessible and desirable venue for immunizations to be administered.
In anticipation of this developing situation, and concerned for the safety of patients as well as the liability of pharmacists, pharmacist and House Representative Gary Merchant filed a Petition for Declaratory Ruling with the NH Board of Pharmacy on December 2, 2020. With guidance from the NH Attorney General’s Office, the BOP issued a Declaratory Ruling on December 16, 2020 that rules as follows:
The PREP Act dealing with the need to immunize the public as a “countermeasure” to the pandemic, is “a mere recommendation” and NOT a legal requirement or legal authority to do something that is not otherwise legal/authorized.
The administration of vaccines is, beyond dispute, within the statutory definition of the “practice of medicine” under RSA 329. A person not authorized by law or rule to immunize, would appear to be engaged in the unlawful practice of medicine under RSA 329:24. Pharmacists and pharmacy interns are so authorized under RSA 318:16 providing they meet the criteria detailed therein. However, there is NO provision in NH law that permits a pharmacy technician to immunize.
If you are a pharmacist and/or a PIC, and instructed to train and supervise pharmacy technicians to immunize patients in NH, you would be enabling the unlawful practice of medicine. In addition, you would be in violation of RSA 318, the NH pharmacy practice act. It is your license on the line. Importantly,, to the extent that there are provisions in the law, rules or regulation that either provide immunity or indemnity when immunizing, or a source of funding for injuries suffered as a result of immunization, they will likely be unavailable because you were engaged in “willful misconduct” – enabling the unlawful practice of medicine.
Because these issues involve a genuine threat to public health and safety, NHPA is interested in identifying pharmacists willing to discuss, analyze, and make plans for how to address these concerns responsibly. We have invited Rick Fradette, NH pharmacist and attorney, to work with us in this process. If you respond to this email we will identify you only as a pharmacist concerned for the health and safety of your patients – follow up communication will be arranged through Atty. Fradette so as to protect them as strictly confidential. If you are interested please contact either Bob Stout or Richard Cohen for more details.
Bob Stout, President NHPA
Richard Cohen, Exec. Board NHPA
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