“On The Premises”/”On Call”

“On The Premises”

Phyllis Pharmacist and Mary Pharmacist are working at their respective chain pharmacies when the Board of Pharmacy inspector comes in.  When the inspector asks to see their current licenses, Phyllis goes to the back room and gets her purse from her locker.  Mary runs out to her car where she leaves her purse while on duty.  Board Inspector writes up one of the pharmacists for not being “on the premises.”

Who did BI write up?  Pharmacy law requires pharmacists while practicing to have their license “on their person” in most states; neither one here did.  The answer is: BI wrote up Mary for leaving the premises.  Boards have acknowledged that purses may be used to divert prescription medications and they are OK that purses may be stored outside the pharmacy per company policy.  The important note here is that in order to get to her license, the pharmacist may NOT go outside the premises.

For a pharmacy to conduct the usual and customary business that a pharmacy performs, a pharmacist must be “on the premises.”  When a pharmacist is not present, ALL pharmacy business must cease.  No sale of previously verified prescriptions, no new prescriptions or refills being prepared, no information being fed into a computer.  Indeed, if the pharmacist is truly off the premises, all pharmacy personnel must leave and secure the pharmacy area.

On the premises was once defined as “under one roof.”  As long as the pharmacist was in the building, business could continue even if the pharmacist was outside the pharmacy area.  To a degree, this continues today.  If Phyllis or Mary makes a quick trip to the bathroom or goes out front into the OTC area to counsel a patient on an OTC drug, or merely runs up front to buy a snack, she is still on the premises.

But this rule is no longer 100%.  When the pharmacist leaves the pharmacy for an extended period, especially if this is for a planned event—such as a meeting with the supervisor or a lunch break—even though the pharmacist is still under the same roof, the pharmacy should be closed.

Be careful here.  The rule does not go 100% in the opposite direction.  A quick outside-the-pharmacy private talk with a pharmacy supervisor need not require a closure; a pharmacist eating in the pharmacy need not close the pharmacy if she can be interrupted to conduct business.

Whether or not to close during a pharmacist absence from the pharmacy area?  Let us look to three criteria: time outside the pharmacy, intent to leave, and availability.  While there is no hard and fast number of minutes that determines whether a pharmacist is “off the premises,” pharmacists should always seek to minimize time out of the pharmacy area.  I would guess that up to ten minutes would not necessarily call for closure, but I would start leaning strongly toward doing so for any absence longer than 15 minutes.  Intent is the same; if the pharmacist intends to be outside the pharmacy for any purpose longer than 15 minutes, closure should be strongly considered.  Finally, a pharmacist outside the pharmacy area who desires that business be ongoing should be immediately available to return to the pharmacy for such acts as she is required to complete.

And a pharmacist can actually step outside the building and still be “on the premises.”  She must be outside for a minimal length of time and she must be conducting pharmacy business.  I have stepped outside for a minute or two to give a vaccination to a patient who had trouble with mobility.  I have taken prescription medications out front to patients with mobility problems that would not fit through the drive-thru window drawer.  Boards find such acts acceptable.

An area where issues have arisen with being “on the premises” is in the hospital setting, especially in the new mega-hospitals with the Women’s Hospital connected to the Children’s Hospital connected to the Heart Hospital.  Boards of Pharmacy have had issues with a pharmacist going from one type of hospital to another (while never going outside, mind you) and still being considered “on the premises.”  Even in some of the single larger hospitals, Boards have shown reluctance to acknowledging being on the premises when the pharmacist is some distance away from the pharmacy.  Usually this is of little concern as larger hospitals have more than one pharmacist on duty at a time.  Hospital pharmacists need to be 1) immediately and easily communicated with (eg, via cell phone) and 2) able to return to the pharmacy when required within a few minutes at most, immediately if needed.

Another “on the premises” question Boards face somewhat regularly: is a pharmacist still on the premises if part of the pharmacy is separate from the main prescription area?  I have seen pharmacies where a compounding room is separate from the prescription area but under the same roof.  The Board was fine with that.  In another matter, a pharmacy had two sections, separated by a public corridor.  The pharmacist had to cross the corridor, locking one door behind her and unlocking the other.  The Board agreed that she was still on the premises so long as there was instant and easy communication—intercom, cell phone—and an ability to immediately return across the hallway.

“On Call”

Kentucky (and every other state that I am aware) requires its hospitals to provide 24 hour service, having a pharmacist on call when the pharmacy is closed.  While on call situations almost always refer to hospital pharmacies, these can be easily relatable to the home health or other pharmacy that seeks to provide 24 hour service through an on call pharmacist when the pharmacy is closed.

Two cases pretty well sum up the on call issue: Tom Pharmacist and Joe Pharmacist are on call pharmacists at two different hospitals.  One night they both receive calls to come in and prepare medications for extremely ill patients.

Tom gets in his car and makes the 45 minute drive to the hospital.  He is too late ; the patient has died.

Joe gets in his car and drives his usual route.  At a train track, where Joe has never encountered a train before at night, there is now a train, and it is stopped.  Knowing the alternate route to the hospital would add 20 minutes to his drive, Joe waits a few minutes, then a few minutes more after he hears noise that sounds like the train was starting.  Then he gives up and drives the alternate route.  He arrives at the hospital too late; the patient has died.

Both families of the patients learn that if the pharmacist had arrived earlier, the patient might well still be alive.  Both sue the hospital and the pharmacist for undue delay in providing the medication needed to save their loved ones.

Joe is able to show that his usual 10 minute drive was lengthened by the train and that trains at night along that roadway were rare.  As it turns out, the train 1) was unscheduled for that time and 2) the engine had broken down, causing the stop across the roadway.  The court granted summary judgment for Joe and his hospital.  Joe had made every reasonable effort and the train being there, and broken down, was unforeseeable.

Tom and his hospital were found liable.  The court held that on call services were generally of an emergency nature; therefore, the hospital pharmacist should be able to respond in an undue amount of time.  Living 45 minutes away was too far, the court held.  While the court refused to say how close to the hospital an on call pharmacist should be, it brooked no argument that 45 minutes was simply and clearly too far.

To determine the questions relating to being “on the premises” and “on call,” pharmacists should refer to their state law.  Most pharmacies, retail and institutional, usually have adequate policies in place that match the law.  Where there is any doubt, be cautious and conservative in considering whether an absence from the pharmacy is acceptable.  If a situation looks to be ongoing, such asrequiring so many minutes to reach the hospital or crossing a corridor, write the Board and get a written opinion as to whether this is acceptable in their opinion.

–sponsored by Pharmacy Law Source, PLLC

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