On appeal from a Final Decision of the New Jersey State Board of Pharmacy.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Yannotti and LeWinn.
Ronald C. Sorr (Sorr) appeals from a final determination of the State Board of Pharmacy (Board) dated June 18, 2007, which found that Sorr violated certain statutes and regulations applicable to his practice as a pharmacist. The Board suspended Sorr's license to practice pharmacy in this State for five years, imposed a civil penalty in the amount of $10,000, and required him to pay attorneys' fees and investigative costs of $99,639.75. For the reasons that follow, we affirm.
On August 29, 2005, the Attorney General filed a four-count complaint charging Sorr with various statutory and regulatory violations arising from his participation in a voucher program in which individuals could obtain free samples of drugs manufactured by Novartis Pharmaceutical Company (Novartis). The complaint sought the suspension or revocation of Sorr's license to practice pharmacy and operate his pharmacy; imposition of penalties and costs, including attorneys' fees and investigative costs; and such other relief as the Board considered just and appropriate. Sorr filed an answer in which he contested all of the allegations and asserted that he should not be subject to any discipline.
The matter was referred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). On October 2, 2006, the Attorney General filed a motion for summary decision, and on October 12, 2006, Sorr filed a cross motion for partial summary decision. The parties stipulated to certain facts pertinent to the charges. They also filed certifications in support of their respective motions.
The record before the ALJ revealed the following. Sorr is a registered pharmacist who is licensed to practice pharmacy in New Jersey. He holds a permit to operate and is the registered pharmacist for the Trenton Avenue Pharmacy (TAP) in Atlantic City. In 2000, McKesson HBOC Pharmaceutical Partners Group (McKesson) developed a voucher system that allowed patients to obtain certain drug samples free of charge. Novartis utilized the McKesson voucher system.
The voucher program required that a physician diagnose a patient and prescribe medication on a form called the New Jersey Prescription Blank (NJPB). A voucher for payment was attached to the back of the NJPB for each drug that was prescribed. After the pharmacist filled and dispensed the medication, the pharmacist would submit the voucher to the company for reimbursement and dispensing fees.
In the period from June 2002 to September 2002, Novartis sales representative Gbubemi "Thomas" Nanna (Nanna) "serviced" the Atlantic City area, including the TAP. Nanna delivered to Sorr bundles of NJPBs bearing Novartis vouchers. Between June 2002 and September 2002, Sorr filled 965 prescriptions for the voucher program, including the 104 NJPBs that formed the basis for the Attorney General's complaint. The 104 NJPBs were for certain prescription drugs including: Diovan HTC, which is prescribed for hypertension; Elidel, which is used to treat eczema; Exelon, which is prescribed for patients suffering from Alzheimer's disease; Famvir, an anti-viral medication; Lamisil, a cream for infections; and Starlix, which is prescribed for high blood sugar levels in patients with Type-2 diabetes.
The parties stipulated that the patients identified in the 104 NJPBs did not deliver their prescriptions to Sorr, nor did they pick up the drug samples at the TAP. Instead, Sorr either provided the drugs to Nanna or mailed them to Dr. Pravin B. Vasoya. Dr. Vasoya's name did not appear as the prescribing licensee on the 104 NJPBs that Sorr processed. The Attorney General submitted affidavits from the doctors whose names appeared on the 104 NJPBs. In those affidavits, the doctors stated that they did not sign the prescriptions.
The Attorney General also submitted an expert report dated April 15, 2006, from Donna M. Horn, R.Ph., D.Ph. (Dr. Horn). In her report, Dr. Horn stated that the prescriptions at issue were fictitious. She concluded that Sorr failed to question the "bundled" prescriptions and the fact that many of the patients would be simultaneously suffering from the conditions to be addressed by the medications prescribed. Dr. Horn stated that Sorr's "repeated failure to suspect bundled prescriptions and [his] failure to recognize and question the prescription of [the] combinations of drugs [were] a gross deviation from the standard of care."
Dr. Horn also stated that Sorr's "repeated failure to complete drug utilization reviews and [his] failure to utilize pharmaceutical care in his practice setting [were] gross deviations from the standard of practice." The doctor noted that the TAP's patient records contained only the 104 prescriptions. She wrote that there was no evidence that Sorr tried to obtain other current ...