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SB-362 Community pharmacies: quotas.(2021-2022)

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Date Published: 05/21/2021 04:00 AM
SB362:v98#DOCUMENT

Amended  IN  Senate  May 20, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 362


Introduced by Senator Newman

February 10, 2021


An act to add Sections 4113.7 and 4317 of to the Business and Professions Code, relating to healing arts.


LEGISLATIVE COUNSEL'S DIGEST


SB 362, as amended, Newman. Community pharmacies: quotas.
Under the Pharmacy Law, the California State Board of Pharmacy licenses and regulates the practice of pharmacy and the conduct of a pharmacy in this state. The Pharmacy Law refers to various types of pharmacies, including community pharmacies, as specified. Existing law prohibits a community pharmacy from requiring a pharmacist to engage in the practice of pharmacy at any time the pharmacy is open to the public, unless another employee, as specified, is made available to assist the pharmacist at all times.
This bill would prohibit a community pharmacy from establishing a quota, defined as a fixed number or formula related to the duties for which a pharmacist or pharmacy technician license is required, against which the community pharmacy or its agent measures or evaluates the pharmacist or pharmacy technician’s performance of those duties in the community pharmacy. The bill would also prohibit a community pharmacy, through employees, contractors, or third parties, from communicating the existence of quotas to pharmacists or pharmacy technicians who are its employees or with whom it contracts. For an initial violation of this provision, the bill would require the community pharmacy to be assessed a fine not exceeding one million dollars and a 30-day suspension of the licenses of its pharmacies in the state. For a second violation, the bill would require the revocation of the licenses of its pharmacies in the state. The bill would provide that a community pharmacy is not subject to these penalties if it demonstrates by clear and convincing evidence that the violation was contrary to its policy. The bill would authorize the board to take an enforcement action against a community pharmacy that violates these provisions, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) California’s pharmacists and pharmacy technicians employed by multibillion dollar, publicly-traded, pharmacy chain stores will imminently be called upon to accomplish something unprecedented: to vaccinate tens of millions of California patients on top of their already overwhelming workloads.
(b) However, widespread, profit-driven, and long-decried performance quotas imposed by these chains upon their licensed professional employees place at risk the ability of pharmacists and pharmacy technicians safely to vaccinate Californians properly while at the same time performing their already life-or-death duties.
(c) Documents and data obtained by investigative reporters, public prosecutors, and researchers have established that large, publicly-traded pharmacy chains impose performance quotas on licensed pharmacists and pharmacy technicians that place at risk the health and well-being of patients. For example:
(1) More than one-half of the chain and retail pharmacists reported high stress work environments from “having to meet quotas.”
(2) Eighty-three percent of pharmacists reported in one survey that “performance metrics contributed to dispensing errors.”
(3) Another survey by the California State Board of Pharmacy found that about 85 percent of the pharmacists surveyed indicated “workload” was “too high.” Prescription errors can be found and corrected 89 percent of the time during such consultations. However, performance quotas such as timed metrics inhibit consistent consultations.
(4) An investigative report by The Los Angeles Times documented enormous pressure placed upon pharmacy employees by vast drug chains to meet quotas. One pharmacist is quoted as saying, “Everyone knows that if we don’t hit our quotas, people can lose their jobs,” and The Times writes “[c]ompany documents . . . have shown that CVS workers are expected to enroll at least 40% of patients into the [automatic prescription renewal] program. Failure to do so can result in loss of raises or bonuses. Other drugstores, notably Target, Rite Aid and Walgreens, have similar quotas [.]”
(5) In 2011, the California State Board of Pharmacy brought to three District Attorneys’ offices information about the three biggest retail chains failing to properly provide needed personal consultation to prescription drug customers. All three of these major retailers were forced to pay huge fines and were permanently enjoined to comply with California’s standards for patient consultations. Indeed, major drug store chains have been forced to pay millions to settle claims brought by the United States Department of Justice and other public agencies for overzealous and unlawful profit-increasing practices.
(d) Performance quotas in normal times pose a risk to the public health. When implemented during a time when pharmacists and pharmacy technicians will have imposed upon them for an indefinite period significant new and vital public health duties, quotas are unacceptable.

SEC. 2.

 Section 4113.7 is added to the Business and Professions Code, to read:

4113.7.
 (a) A community pharmacy shall not establish a quota related to the duties for which a pharmacist or pharmacy technician license is required.
(b) A community pharmacy shall not, through employees, contractors, or third parties, communicate the existence of quotas related to the duties for which a pharmacist or pharmacy technician license is required to pharmacists or pharmacy technicians who are employees of the community pharmacy or with whom the community pharmacy contracts.
(c) (1) For purposes of this section, “quota” means a fixed number or formula related to the duties for which a pharmacist or pharmacy technician license is required, against which the community pharmacy or its agent measures or evaluates the pharmacist or pharmacy technician’s performance of those duties in the community pharmacy. “Quota” includes a fixed number or formula related to any of the following:
(A) Prescriptions filled.
(B) Services rendered to patients.
(C) Programs offered to patients.
(D) Revenue obtained.
(2) For purposes of this section, “quota” does not mean any measurement communicated on an annual basis to a pharmacist or a pharmacy technician by a community pharmacy that documents the items sold, prescriptions filled, or services rendered during the preceding 12 months compared to other pharmacists and pharmacy technicians during the same period.

(d)A community pharmacy that violates this section may be assessed an administrative penalty in accordance with Section 4317.

SEC. 3.

 Section 4317 is added to the Business and Professions Code, immediately following Section 4316, to read:

4317.
 A community pharmacy that violates Section 4113.7 shall be assessed an administrative penalty unless by clear and convincing evidence The board may take an enforcement action against a community pharmacy that violates Section 4113.7 unless, by clear and convincing evidence, the community pharmacy demonstrates that the violation was contrary to its policy.

(a)An initial violation shall result in both of the following:

(1)A fine not exceeding one million dollars ($1,000,000.00).

(2)A suspension of the licenses of pharmacies in the state owned or controlled by the community pharmacy for 30 days.

(b)A second violation shall result in revocation of the licenses of pharmacies in the state owned or controlled by the community pharmacy.