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Ex parte Alabama State Board of Pharmacy

Alabama Court of Civil Appeals

June 9, 2017

Ex parte Alabama State Board of Pharmacy
v.
Alabama State Board of Pharmacy In re: Demetrius Yvonne Parks et al.

         (Montgomery Circuit Court, CV-16-901576)

          PETITION FOR WRIT OF MANDAMUS

          THOMPSON, Presiding Judge.

         The Alabama State Board of Pharmacy ("the board") petitions this court for a writ of mandamus directing the Montgomery Circuit Court ("the circuit court") to vacate its "order supplementing stay on a temporary basis" ("the supplemental order") entered on January 5, 2017.[1] The supplemental order added certain requirements to a stay order ("the stay order") entered by the circuit court on December 1, 2016, that, among other things, put in place specific restrictions on Demetrius Yvonne Parks's ability to practice pharmacy pending judicial review of the board's decision to suspend her license to practice pharmacy ("the license"). The stay order also directed a pharmacy owned by Parks to meet specific requirements during the pendency of the judicial review.

         The materials before this court indicate the following. On October 1, 2016, after a hearing on 46 counts alleging various improper practices, the board entered an order suspending Parks's license for 5 years and levying an administrative fine against her in the amount of $27, 000. The board also placed the pharmacy permits of two of Parks's pharmacies--Parks Pharmacy #2 and Parks Pharmacy #4--on probation for five years. Those two pharmacies, as well as one other pharmacy Parks owned (hereinafter referred to collectively as "the pharmacies"), were also ordered to pay administrative fines.[2]

         On November 22, 2016, Parks and the pharmacies filed a complaint in the circuit court seeking judicial review of the board's decision. That same day, they also filed a motion to stay the board's decision pending the outcome of the judicial review. A hearing on the stay motion was scheduled for November 30, 2016. On November 28, 2016, two days before the scheduled hearing, Parks and the pharmacies filed an emergency motion to stay. Two affidavits were submitted in support of that motion--one from Parks and the other from Adam Andrews. In her affidavit, Parks testified that the suspension of her license was causing her "irreparable harm" because, she said, medical suppliers, including her "main supplier, " were unwilling to provide supplies to her pharmacies. She noted that the permits for two of her pharmacies were not suspended but were only on probation. However, she said, "the personal suspension of me taints and sullies my pharmacies and is making it extremely difficult, if not impossible, for my pharmacies to continue in business so long as I am suspended."

         In his affidavit, Andrews stated that he was a party to a telephone conversation with Parks's attorney, Julian McPhillips, and the attorney representing Parks's primary medical supplier. Andrews's relationship to Parks or the pharmacies is not made clear in the affidavit. However, he states that McPhillips and he "were pitching to" the supplier that, despite Parks's license being suspended, the pharmacies were still authorized to do business and were open to the public even though two of them were "on probationary status." Andrews said that, during the telephone conversation, he heard the attorney for the supplier say that even though the pharmacies were still allowed to do business, the supplier, "pursuant to its contract with [the pharmacies], was electing not to continue selling supplies [to] Ms. Parks' pharmacies." Andrews also said that the supplier's attorney said "that it looks bad" for the supplier to sell to the pharmacies because the owner, Parks, was suspended.

         A transcript of the hearing on the stay motion is not contained in the materials before this court. On December 1, 2016, the circuit court entered an order staying the suspension of Parks's license subject to her compliance with specific enumerated terms, including that Parks "shall not be involved in the dispensing of legend or controlled drugs." Parks Pharmacy #4 was also directed to hire a supervising pharmacist, who had to be approved by the board, and to make certain records available to the board upon its request.

         On December 14, 2016, two weeks after the stay order was entered, Parks and the pharmacies filed an "emergency supplemental motion to stay" in which they sought the removal of language from a Web site of the National Practitioner Data Bank ("the NPDB") relating "to the original suspension, now stayed." According to a document from the United States Department of Health and Human Services, which is included in the materials before this court, the NPDB "is a confidential information clearinghouse created by Congress to improve health care quality, protect the public, and reduce health care fraud and abuse in the U.S." The specific language that Parks and the pharmacies complained of from the Web site was not set forth in the motion. However, Parks and the pharmacies alleged that, because of the unspecified language, Parks's participation as an Alabama Medicaid provider had been revoked and medical suppliers were refusing to sell to them. Parks and the pharmacies sought a hearing "on an emergency basis" and asked the circuit court to "enter a corrected [stay] order that applies to the NPDB website."

         The hearing on the December 14, 2016, motion was originally scheduled for December 27, 2016. On December 27, 2016, the circuit court entered an order resetting the hearing for January 5, 2017. On January 3, 2017, the circuit court entered another order granting the board's motion to continue the scheduled January 5, 2017, hearing. The order stated that the hearing "will be reset." We note that the board's motion to continue is not contained in the materials before this court.

         Although the circuit court had continued the January 5, 2017, hearing, it also entered an order that day supplementing the stay "on a temporary basis." In the supplemental order, the circuit court stated that,

"because this matter had to [be] continued for various reasons, and deeming the relief requested to be in order, [the stay order] is hereby modified as follows ...
"1. [Parks], whose suspension was lifted by this court's order of December 1, 2016, is hereby allowed to work as a pharmacist until further order of this court.
"2. [The board] is hereby ORDERED to immediately clear and remove all language in its entirety sent to the [NPDB] concerning [the ...

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