THE MISSISSIPPI LEGISLATURE

The Joint Committee on

Performance Evaluation and Expenditure Review

Report # 536

A Review of the Board of Pharmacy

Executive Summary

Introduction

In conducting this review, PEER first determined whether protecting the public’s health, safety, and welfare through regulation of the pharmacy profession fulfills an essential social need.

After establishing the need for state regulation of the pharmacy profession, PEER evaluated the functions and operations of the board, including its licensure of pharmacists and registration of pharmacy technicians and activities to ensure compliance with state laws, rules, and regulations that govern the practice of pharmacy in Mississippi.

Additionally, PEER revisited conclusions of three previous PEER Committee reports on the Board of Pharmacy and assessed the board’s progress regarding resolution of issues noted in these previous reports. PEER also addressed specific allegations from complainants regarding administrative issues.

Conclusions

Need for the Regulation of Pharmacy

Inadequate regulation of the pharmacy profession could expose the public to unnecessary risks and could contribute to improper, unethical, or criminal activity within the profession. Specific risks include:

• inadequate knowledge and skills associated with the study of pharmacy;
• illegal distribution of drugs;
• improper use of controlled substances;
• inadequate or unsanitary pharmaceutical facilities;
• mismanagement of drug inventories; or,
• inadequate clinical or technician supervision.

PEER concluded that Mississippi has an essential public need for regulation of the pharmacy profession.

Follow-Up Conclusions

Although the Board of Pharmacy is responsible for fulfilling the need for regulation of the pharmacy profession, some components of the board’s licensure, registration, and compliance operations may place the public at unnecessary risk. In assessing the board’s progress regarding resolution of issues noted in PEER’s previous reports, PEER found the following.

Licensure and Registration

• Although state law requires that applicants for pharmacist licensure and pharmacy technician registration “[b]e of good moral character,” state law and the board’s rules and regulations still do not contain formal, written criteria for this requirement.
• In addition to the validated national pharmacy examination given by the National Association of Boards of Pharmacy, the board requires Mississippi’s pharmacy applicants to pass an examination on state pharmacy laws (i. e., the board’s own jurisprudence examination). Because the jurisprudence examination is not properly developed or administered, the board cannot ensure that applicants have sufficient knowledge of state pharmacy laws and regulations to practice pharmacy.

Compliance

• The board has taken steps toward improving efficiency and effectiveness in assigning compliance agents to inspection regions.

Statutory Authority for Compliance Agents to Serve as Sworn Law Enforcement Officers

• MISS. CODE ANN. Section 41-29-159 (1972) confers the authority of sworn law enforcement officers on compliance agents; however, compliance agents’ job description does not require this authority. State law does not require compliance agents to complete minimum standards training for firearms and the board is not in compliance with its own policies regarding firearms training.

Administrative Issues

• Although the Compliance Division operates with formal, written policies and procedures, the board does not have formal, written policies for its administrative or licensing functions. Furthermore, the board has not established an agency-wide internal training program.

Board Membership

• A recent gubernatorial appointee to the Board of Pharmacy was not confirmed by the Senate during the 2010 legislative session prior to sine die adjournment. According to state law and opinions of the Attorney General, upon vacation of the Senate (i. e., sine die adjournment), that member’s seat remains vacant. However, the board has paid $390.60 in per diem and expenses to that member since the date on which the seat legally became vacant.

Status of Specific Concerns Regarding the Board’s Administrative Functions

When conducting this review, PEER also addressed the following specific allegations by complainants:

• inappropriate business relationships between the board and the entities it regulates;
• whether duties performed by the Cornerstone Consulting Group, Inc., could be performed by board staff;
• mismanagement of federal grants;
• excessive or frivolous spending with regard to contracts, travel, training, and furnishings;
• whether the board is in compliance with State Personnel Board policies; and,
• whether there are adverse pending legal proceedings against the board.

Complaint 1: Business Relationships Between the Board and Entities It Regulates

Although an employee and board member formerly jointly owned a business regulated by the board, the company has been dissolved and the potential conflict of interest no longer exists.

Complaint 2: Contractual Expenditures

Based on PEER’s analysis of available information, the MBP’s decision to sacrifice a Bureau Director II position to fund a contract with Cornerstone Consulting to provide accounting and computer services was a cost-effective decision.

Complaint 3: Management of Federal Grants

Subsequent to an August 2006 audit of the Prescription Monitoring Program, federal auditors disallowed $50,002 of the board’s expenditures for that program. The board has since resolved these issues with the federal government and now operates the program with self-generated funds.

Complaint 4: Appropriateness of Expenditures

PEER reviewed the MBP’s expenditures for FY 2005 through FY 2010 and did not detect expenditures that would not appear to be reasonable for a regulatory agency.

Complaint 5: Compliance with State Personnel Board Policies

In reviewing MBP operations, PEER found that the board has made improvements in its assignment of compliance agents and that it is operating within the bounds of its authority in the assignment of staff.

Complaint 6: Pending Legal Proceedings

The MBP has a federal court case pending against it that relates to a claim of employment discrimination and failure to promote.

Recommendations

• In order to protect the public’s health through licensure and registration, the board should:
  
  
  • adopt into its rules and regulations formal criteria to determine an applicant’s moral character; and,
  • adopt the use of the Multistate Pharmacy Jurisprudence Examination (MPJE) administered by the NABP as the board’s jurisprudence examination to test pharmacy applicants on their knowledge of federal and state laws and regulations that govern the practice of pharmacy.
• In order to protect the public’s health through its compliance activities, the board should:
  
  
  • ensure that its new management system has the capability to conduct annual cost-benefit analysis to determine whether assigned inspection regions:
    
    
    • minimize state travel cost (gas, oil, and maintenance);
    • minimize travel distance for inspectors; and,
    • maximize available inspection time during each workday; and,
  • adopt a policy that prohibits compliance agents from performing any sworn law enforcement officer duties, including carrying firearms.
• The Legislature should:
  
  
  • amend MISS. CODE ANN. Section 45-6-3 (1972) to remove authority for compliance agents to function as law enforcement officers; and,
  • amend MISS. CODE ANN. Section 41-29-159 (1972) to provide that only personnel of the Board of Pharmacy authorized to carry out law enforcement functions shall be those law enforcement officers within the meaning of MISS. CODE ANN. Section 45-6-3 (1972) and who are trained in accordance with MISS. CODE ANN. Section 45-6-1 et seq. (1972).
• In order to ensure the safety of the public through its administrative activities, the board should:
  
  
  • develop policy and procedures manuals for its administrative and licensing operations and ensure that its compliance manual is comprehensive and current; and,
  • establish an agency-wide internal training program to minimize the possibility of administrative, communications, and operational errors. The curriculum for this training program should cover, as a minimum, the information contained in the policy and procedure manuals.
• The Executive Director of the Board of Pharmacy should consult with the Department of Audit regarding the proper procedure for reimbursing the board’s fund for the amounts paid to Mr. Leland McDivitt for the May 2010 board meeting. The board should also ensure that Mr. McDivitt is not paid or allowed to perform as a board member until such time as he may be reappointed and confirmed.

Implications for Change

Although improvements could be made to the state’s existing regulatory structure for pharmacy regulation, implications for change also exist in approaching occupational regulatory efforts in a new way.

PEER notes that twenty-nine states have boards of pharmacy that operate within a shared services structure. In an enterprise model of regulation of professions, occupational regulation would be considered a single enterprise in which resources would be networked across occupational boards to achieve an optimal balance of central control and efficiency.

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