Jul 19, 2017 - The Supreme Court decision has, in the last two years, influenced ... boards go through their individual
Open Letter to all California Pharmacists, Student Pharmacists, and Pharmacy Technicians Senate Bill 716 (Hernandez) This letter seeks to provide clarity regarding Senate Bill (SB) 716 California State Board of Pharmacy: Pharmacy Technician Member and the importance of this bill for the “evolution of pharmacy.” SB 716 was written to add a pharmacy technician to the California State Board of Pharmacy (BOP) to represent the more than 72,000 pharmacy technicians licensed in the State of California. Pharmacy technicians represent 52% of all BOP licensees. It is long overdue for these allied health care professionals to have both a role and a responsibility to support the mission of the BOP: “protect and promote the health and safety of Californians.” Additionally, this is a necessary step to enhance the education, training, and qualifications of all technicians to take on their expanded roles in a safe and successful manner as we further the efforts of SB 493 and advance practice pharmacists. SB 716 was written to add one more licensee member to the current 13-member BOP for a total of 14 members, with eight being licensees (seven pharmacists, one pharmacy technician) and six being public members. The chair of the Senate Business, Professions, and Economic Development Committee requested an amendment, which is supported by Senator Hernandez, to add one additional public member. So why was an additional public member added? The answer lies with a United States Supreme Court decision rendered in February 2015 1 regarding North Carolina Board of Dental Examiners v. Federal Trade Commission. The decision set forth several points: • •
Licensee board members have inherent biases toward the profession, placing their benefit over the public. Licensee member majorities on regulatory boards may violate the Sherman Antitrust Act and the Federal Trade Commission Act.
In the decision, Justice Kennedy stated the need for the antitrust laws “applies to this case with full force, particularly in light of the risks licensing boards dominated by market participants may pose to the free market.” The Supreme Court decision has, in the last two years, influenced both the composition and function of regulatory boards across the nation. One such example is the enactment of recent legislation by the state of Kentucky to consolidate their regulatory boards with oversight by one executive director hired by the Public Protection Agency. The Kentucky Board of Pharmacy will be consolidated with the Boards of Podiatry, Optometry, Chiropractic Medicine, and Dentistry. It is anticipated as California regulatory
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https://c.ymcdn.com/sites/cshp.siteym.com/resource/resmgr/files/Advocacy/legislative/2017/North_Carolina_State_Board_o.pdf
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boards go through their individual “sunset review” 2 process, every five years, there will be an evaluation of the number of licensee members on each board in light of the Supreme Court decision. Could SB 716 have continued without the addition of the public member? The answer is no. With the addition of another licensee to the board, the imbalance between the licensee and public members would widen and raised concern regarding the Supreme Court decision. As indicated in the Senate floor analysis the addition of the public member “would maintain the present bare professional majority of licensee BOP members…”. 3 What impact does the new BOP composition have on pharmacist practice? First, it’s important that we are reminded of the role and responsibility of each BOP member: to protect the public and promote patient safety. This means they are charged to ensure that the public is protected from those individuals or entities licensed by the BOP whether it be pharmacist, pharmacy technician, pharmacy, wholesaler, health care facility, or compounding pharmacy. Every discussion and decision of the BOP are framed within the context of public safety. There are some who might believe that the BOP is there to protect and advance the profession of pharmacy; however, this is false. At the BOP, all pharmacy-related public policy and regulations are done with extensive input from the public through in person testimony and written comments during the regulatory rule making. No board member or group of members can craft policy or rules outside of the public arena. Rather their role is to provide guidance based on their experience whether it be a specific practice setting (e.g., acute care) or expertise (e.g., sterile compounding). However, the majority of expertise and experience utilized by the BOP to develop policy and regulations comes through the public input process and not only through the input provided by Board of Pharmacy members. CPhA aligns with our position to add a pharmacy technician to the BOP. In CPhA’s letter of support dated April 10, 2017, “…as an allied health profession licensed and regulated by the Board of Pharmacy, it is time that they are included in regulatory oversight proceedings. CPhA believes the ability of pharmacy technicians to have a voice in decisions impacting a profession for which they play a crucial role is appropriate. For these reasons CPhA supports SB 716…” 4 CPhA has recently expressed their opposition to the bill. So, what changed CPhA’s support position to opposition? In our multiple meetings with CPhA’s leadership and their lobbyist, they expressed concern with the addition of another public member and their position that a pharmacy technician is not pharmacy professional. Their concern is predicated on the belief that a public member, and secondarily
2
http://cssrc.us/content/briefing-report-sun-set-rise-sunset-review
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http://www.cshp.org/resource/resmgr/files/Advocacy/legislative/2017/SB716_Senate_Floor_Analyses_.pdf
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https://c.ymcdn.com/sites/cshp.siteym.com/resource/resmgr/files/Advocacy/legislative/2017/CPhA_LetterofSupport_SB_716.pdf
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the pharmacy technician member, lacks sufficient capability to understand the complexities of pharmacy practice to adequately contribute to the policy decision making process. We disagree and believe public members are dedicated to the task for which they have been appointed and execute their duties with the utmost diligence and integrity. We also believe and support the role of pharmacy technicians as dedicated members and partners on the pharmacy team whose knowledge enhances patient safety efforts. The strength of the BOP comes from the diversity of the members and the perspectives they bring to the discussion. In fact, the BOP criteria for appointment of pharmacist members requires five of the seven represent the following areas: 1. 2. 3. 4. 5.
Long term care or skilled nursing, Chain community pharmacy, Independent community pharmacy, Acute care hospital, and Pharmacist member of a labor union representing pharmacists.
As stated in the BOP’s Sunset Review Report 2016, submitted to the Assembly and Senate; “The composition of the professional members of the board required by law helps to ensure knowledge from diverse practice settings when developing board policy for protecting the public. Regardless of background, all board members represent the public and all members fully participate in activities of the board.” 5 Diversity of perspectives is key to strong policy development. The pharmacy profession is stronger if pharmacy associations work together with one voice. For that reason, we set up a series of meetings with CPhA’s leadership to identify a solution to their concern. In our efforts to achieve an amicable resolution we delayed the Assembly Business and Profession Committee hearing date. In addition, CSHP convened a meeting, on June 12, 2017, with representatives from; CPhA, California Retailers Association (CRA), National Association of Drug Chain Stores (NACDS), Senator Hernandez’s office and Senate Health committee with the sole intent to identify an amicable solution. All parties supported the addition of a pharmacy technician to the BOP. Following the meeting, CPhA forwarded to CSHP a proposed bill amendment to replace the acute care hospital pharmacist member with a pharmacy technician on the BOP. CPhA’s amendment was to keep the BOP to 13 members with the composition resulting in six pharmacists, one pharmacy technician, and six public members on the board. By CPhA’s own definition their amendment would result in “a loss of a pharmacist majority,” a concern that is now raised by CPhA as the primary reason to oppose the bill.
5
http://cssrc.us/content/briefing-report-sun-set-rise-sunset-review
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We responded with a minor modification to their amendment that would have one of the two noncriteria based pharmacist members replaced with a pharmacy technician instead of the acute care hospital pharmacist member. We asked for a response prior to CSHP’s next Board of Directors meeting on June 28, 2017. Sadly, our suggested revision was met with silence, followed by a CPhA letter of opposition submitted directly to the Assembly Business and Professions Committee, on June 29, 2017. CPhA by their deliberate actions has discarded their commitment to working together to find a reasonable solution. Instead, CPhA has intentionally created a situation that to the uninformed, appears our two associations are unable to work together. Had CPhA responded positively and collaboratively to the proposal they raised, to replace a BOP pharmacist member with a pharmacy technician, our two associations would have been united in support of our articulated objective to have a pharmacy technician on the BOP. However, it is clear from the non-response, and then the registered opposition CPhA has broadcasted their lack of support and value of the acute care hospital BOP member as well as the addition of a pharmacy technician on the BOP. This open letter is necessary to provide clarity to the issue of SB 716 and the actions of both associations to ensure members have a balanced perspective. CPhA has requested their members to oppose the bill on the grounds: “pharmacists will no longer comprise the majority of the Board of Pharmacy.” This position contradicts the Supreme Court findings related to licensee member majorities as well as their own proposed bill amendment sent to us for consideration. Additionally, CPhA’s stated position to its members contradicts their opposition letter submitted to the Assembly dated June 29, 2017 6. The letter doesn’t state their concern with loss of pharmacist majority but rather the direct opposite of having too many professional members. Specifically, the letter states “This bill would create a larger majority of professional BOP members, in opposition to FTC’s concerns about active market participants.” CPhA has also indicated to its members the Supreme Court decision doesn’t impact California’s BOP. However, their opposition letter states, “This disconnect demonstrates the lack of clarity as to whether this bill will address the Board of Pharmacy’s vulnerabilities to North Carolina type lawsuits.” In summary, CPhA informs their members that loss of pharmacist majority will be devastating and the Supreme Court decision does not impact the BOP while informing the Assembly they are concerned about a professional majority violating the Supreme Court decision and BOP being vulnerable to “North Carolina type lawsuits.” Despite the CPhA letter of opposition, SB 716 passed the Assembly committee with a unanimous vote following a unanimous vote by the full Senate. The unanimous votes are reflective of the broad-based support for a bill that provides a voice to 72,000-plus pharmacy technician licensees and furthers patient
https://c.ymcdn.com/sites/cshp.siteym.com/resource/resmgr/files/Advocacy/legislative/2017/SB_716_(Hernandez)_-_Joint_L.pdf 6
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protection policy development. Additionally, SB 716 has broad based support by a number of organizations, and we expect the number to increase. Registered support includes:
• • • • • •
California Hospital Association (CHA) California Council for Advancement of Pharmacy (CCAP) Pharmacy Technician Certification Board (PTCB) Services Employee International Union (SEIU) California Alliance for Retired Americans (CARA) American Society of Health-System Pharmacists (ASHP)
The addition of a pharmacy technician to the BOP aligns with the CSHP mission, professional policy, strategic priorities, and supports the “evolution of pharmacy.” However, more important than all of that, the addition of a pharmacy technician will strengthen the BOP mandate to protect the public; the same public that we serve and seek to protect and improve the quality of their lives. We ask that you continue to support SB 716 and register that support with the Assembly by sending your letter to your legislator. We have made it easy to register your support by clicking here. The CSHP leadership is committed to transparent communication in all our activities, and as such we will be holding a SB 716 Town Hall to provide an update and answer your questions. Date and time of the Town Hall will be forwarded later. Respectfully,
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