By David G. Miller, RPh, IACP Executive Vice President & CEO

You’ve either heard it or said it at one point in your life… “if so-and-so jumped off the Empire State Building, I guess you would too?”

After all, it’s one of those automatic “go-to” phrases that usually precede an exasperated parental lecture on why you have to think for yourself and why being an individual is more important than being part of a group.  If you were like me and didn’t know when to stop trying to work my way out of some wrongdoing and shut up, it was usually followed up with the corollary of “I don’t care if so-and-so’s mother let’s them do that, they’re not your mother, and I said not to.”

Moms influence their children in ways that carry forward for decades.  And I’ve found myself biting my tongue in conversations with members over the past few weeks to not utter that Empire State Building phrase.

For example…

Q.   I got a letter from my Board of Pharmacy saying I have to stop compounding XYZ and I wanted to call and find out if I could keep compounding it.

A.   If your Board says to stop, then you need to comply with that until we can change their position.

Q.   Yes, but another pharmacy two towns over is still compounding XYZ.

A.   I appreciate that but the Board specifically told you to stop doing it.  You can let the Board know what that other pharmacy is doing but in the meantime, you have to do what they tell you.

Q.   Yes, but…

A.    The Board told you to stop.  You’re jeopardizing your pharmacy permit and your license if you don’t comply with a specific directive.

Q.   Yes, but…

A. (bite tongue and try mightily not to say “and if the other pharmacy all jumped off the Empire State Building, I guess you would too?”)

Another one…

Q.   We’ve been giving out samples of our compounds to local doctors and somebody told me that’s illegal.  Is that right?

A.   In general, it probably isn’t legal but it’s also dependent on your state law.  We’re actually researching all the laws for the IACP Law Library.  I can do a preliminary check if you want and see what we’ve got done so far.  What are you giving out?  What’s the drug?

Q.   Testosterone gel.

A. Whoa.  Don’t even have to check that one.  It’s a controlled substance.  You can’t sample a controlled substance, even as a manufacturer.  That’s DEA… federal law.  Stop immediately.

Q. Yes, but my marketing person told me that she was in Doctor Jones’ office and he has samples of testosterone gel from ABC Pharmacy and…

A. Doesn’t matter.  It’s illegal.  No getting around it.  Stop.

Q. Yes, but we’re losing prescriptions to them if we don’t give them samples.

A. And you will lose your DEA registration if you continue.  Seriously.  I’m not joking here.  You can’t do that.  I’ll send you the regulations and the policy from the DEA so you can see.

Q. Yes, but…

A. (bite tongue and try mightily not to say “and if the other pharmacy all jumped off the Empire State Building, I guess you would too?”)

And yet one more…

Q. Somebody told me it’s okay if we pay our local doctors a small fee… like $20 or so… to offset the time it takes their staff to write the compounded formula in their charts.  We started doing that six months ago for some of our best physicians and thought I’d call and ask you what you thought about that.

A.   Wait.  Hold on.  Did you say you’re paying money to a doctor for a prescription?

Q. Well… not really for the prescription.  It’s a service fee for what they have to do… the extra paperwork, you know?

A. But you only pay it when you get a prescription, right?

Q. Yes.

A. I think that’s a problem.  You can’t do that.  Stop.  That’s illegal.  Big time.

Q. Why?

A. Well, if the prescription is for a Medicaid or Medicare patient, that’s considered a kick-back and a violation of the Stark Law.  That’s on the federal side.  On the state level, depending on your practice act, many states have prohibitions on any kind of financial arrangement between a prescriber and pharmacy that results in a patient being “directed” to a specific pharmacy.  That might also be the case here.  Either way, that’s not something you should be doing anyway.  Besides, keeping medical records is the doctor’s professional responsibility and obligation.  You shouldn’t pay them to do something they’re supposed to do anyway.

Q. Yes, but there’s this other compounding pharmacy from out-of-state called ABC Pharmacy and they’re paying the doctors a consultation fee.  What’s wrong with me doing it too?

A. (bite tongue and try mightily not to say “and if the other pharmacies all jumped off the Empire State Building, I guess you would too?”)

Being competitive in today’s marketplace is critical.  But making decisions about how to compete without doing genuine due diligence – checking laws, checking regulations, actually thinking about what the right thing to do is – and following along simply because “somebody else is doing it too” is a sure-fire way to end up losing your competitive edge.  Worse, any potential uptick in your revenue line may eventually be offset by a big legal expense line you hadn’t considered.

Think before you jump.  Do your research.  Call IACP.  Call an attorney.  Rely on your gut for those “this doesn’t seem right” thoughts and question before you act.  Never assume that just because the “other guy” is doing it, that it’s safe, legal or correct.

1,244 feet is a long way to fall.

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