Section 26-4-60. Grounds for suspension, revocation, or refusal to grant licenses

   (a) The board of pharmacy may refuse to issue or renew, or may suspend, revoke, or restrict the licenses of, or fine any person pursuant to the procedures set forth in this Code section, upon one or more of the following grounds:

   (1) Engaging in any unprofessional, immoral, unethical, deceptive, or deleterious conduct or practice harmful to the public, which conduct or practice materially affects the fitness of the licensee or applicant to practice pharmacy or another business or profession licensed under this chapter, or of a nature likely to jeopardize the interest of the public, which conduct or practice need not have resulted in actual injury to any person or be directly related to the practice of pharmacy or another licensed business or profession but shows that the licensee or applicant has committed any act or omission which is indicative of bad moral character or untrustworthiness; unprofessional conduct shall also include any departure from, or the failure to conform to, the minimal reasonable standards of acceptable and prevailing practices of the business or profession licensed under this chapter;

   (2) Incapacity that prevents a licensee from engaging in the practice of pharmacy or another business or profession licensed under this chapter with reasonable skill, competence, and safety to the public;

   (3) Being:

      (A) Convicted of a felony;

      (B) Convicted of any crime involving moral turpitude in this state or any other state, territory, or country or in the courts of the United States; or

      (C) Convicted or guilty of violations of the pharmacy or drug laws of this state, or rules and regulations pertaining thereto, or of laws, rules, and regulations of any other state, or of the federal government;

   (4) Knowingly making misleading, deceptive, untrue, or fraudulent representations in the practice of a business or profession licensed under this chapter or on any document connected therewith; practicing fraud or deceit or intentionally making any false statement in obtaining a license to practice the licensed business or profession; or making a false statement or deceptive registration with the board;

   (5) Engaging or aiding and abetting an individual to engage in the practice of pharmacy without a license falsely using the title of "pharmacist" or "pharmacy intern," or falsely using the term "pharmacy" in any manner;

   (6) Failing to pay the costs assessed in a disciplinary hearing pursuant to subsection (c) of Code Section 26-4-28;

   (7) (A) Becoming unfit or incompetent to practice pharmacy by reason of:

         (i) Intemperance in the use of alcoholic beverages, narcotics, or habit-forming drugs or stimulants; or

         (ii) Any abnormal physical or mental condition which threatens the safety of persons to whom such person may compound or dispense prescriptions, drugs, or devices or for whom he or she might manufacture, prepare, or package or supervise the manufacturing, preparation, or packaging of prescriptions, drugs, or devices.

      (B) In enforcing this paragraph, the board may, upon reasonable grounds, require a licensee or applicant to submit to a mental or physical examination by licensed health care providers designated by the board. The results of such examination shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-5-501. Every person who accepts the privilege of practicing pharmacy in this state or who files an application for a license to practice pharmacy in this state shall be deemed to have given his or her consent to submit to such mental or physical examination and to have waived all objections to the admissibility of the results in any hearing before the board, upon the grounds that the same constitutes a privileged communication. If a licensee or applicant fails to submit to such an examination when properly directed to do so by the board, unless such failure was due to circumstances beyond his or her control, the board may enter a final order upon proper notice, hearing, and proof of such refusal. Any licensee or applicant who is prohibited from practicing pharmacy under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate to the board that he or she can resume or begin the practice of pharmacy with reasonable skill and safety to patients.

      (C) For the purposes of this paragraph, the board may, upon reasonable grounds, obtain any and all records relating to the mental or physical condition of a licensee or applicant, including psychiatric records; and such records shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-5-501. Every person who accepts the privilege of practicing pharmacy in this state or who files an application for a license to practice pharmacy in this state shall be deemed to have given his or her consent to the board's obtaining any such records and to have waived all objections to the admissibility of such records in any hearing before the board, upon the grounds that the same constitutes a privileged communication.

      (D) If any licensee or applicant could, in the absence of this paragraph, invoke a privilege to prevent the disclosure of the results of the examination provided for in subparagraph (B) of this paragraph or the records relating to the mental or physical condition of such licensee or applicant obtained pursuant to subparagraph (C) of this paragraph, all such information shall be received by the board in camera and shall not be disclosed to the public, nor shall any part of the record containing such information be used against any licensee or applicant in any other type of proceeding;

   (8) Being adjudged mentally incompetent by a court of competent jurisdiction within or outside this state; any such adjudication shall automatically suspend the license of any such person and shall prevent the reissuance or renewal of any license so suspended for as long as the adjudication of incompetence is in effect;

   (9) Violating any rules and regulations promulgated by the board;

   (10) Promoting to the public in any manner a drug which may be dispensed only pursuant to prescription;

   (11) Regularly employing the mails or other common carriers to sell, distribute, and deliver a drug which requires a prescription directly to a patient; provided, however, that this provision shall not prohibit the use of the mails or other common carriers to sell, distribute, and deliver a prescription drug directly to:

      (A) A patient or directly to a patient's guardian or caregiver or a physician or physician acting as the patient's agent for whom the prescription drug was prescribed if:

         (i) Such prescription drugs are prescribed for complex chronic, terminal, or rare conditions;

         (ii) Such prescription drugs require special administration, comprehensive patient training, or the provision of supplies and medical devices or have unique patient compliance and safety monitoring requirements;

         (iii) Due to the prescription drug's high monetary cost, short shelf life, special manufacturer specified packaging and shipping requirements or instructions which require temperature sensitive storage and handling, limited availability or distribution, or other factors, the drugs are not carried in the regular inventories of retail pharmacies such that the drugs could be immediately dispensed to multiple retail walk-in patients;

         (iv) Such prescription drug has an annual retail value to the patient of more than $10,000.00;

         (v) The patient receiving the prescription drug consents to the delivery of the prescription drug via expedited overnight common carrier and designates the specialty pharmacy to receive the prescription drug on his or her behalf;

         (vi) The specialty pharmacy utilizes, as appropriate and in accordance with standards of the manufacturer, United States Pharmacopeia, and Federal Drug Administration and other standards adopted by the State Board of Pharmacy, temperature tags, time temperature strips, insulated packaging, or a combination of these; and

         (vii) The specialty pharmacy establishes and notifies the enrollee of its policies and procedures to address instances in which medications do not arrive in a timely manner or in which they have been compromised during shipment and to assure that the pharmacy replaces or makes provisions to replace such drugs;

      (B) An institution or to sell, distribute, or deliver prescription drugs, upon his or her request, to an enrollee in a health benefits plan of a group model health maintenance organization or its affiliates by a pharmacy which is operated by that same group model health maintenance organization and licensed under Code Section 26-4-110 or to a patient on behalf of a pharmacy. Any pharmacy using the mails or other common carriers to dispense prescriptions pursuant to this paragraph shall comply with the following conditions:

         (i) The pharmacy shall provide an electronic, telephonic, or written communications mechanism which reasonably determines whether the medications distributed by the mails or other common carriers have been received by the enrollee and through which a pharmacist employed by the group model health maintenance organization or a pharmacy intern under his or her direct supervision is enabled to offer counseling to the enrollee as authorized by and in accordance with his or her obligations under Code Section 26-4-85, unless the enrollee refuses such consultation or counseling pursuant to subsection (e) of such Code section. In addition, the enrollee shall receive information indicating what he or she should do if the integrity of the packaging or medication has been compromised during shipment;

         (ii) In accordance with clinical and professional standards, the State Board of Pharmacy shall promulgate a list of medications which may not be delivered by the mails or other common carriers. However, until such list is promulgated, the group model health maintenance organization shall not deliver by use of the mails or other common carriers Class II controlled substance medications, medications which require refrigeration, chemotherapy medications deemed by the federal Environmental Protection Agency as dangerous, medications in suppository form, and other medications which, in the professional opinion of the dispensing pharmacist, may be clinically compromised by distribution through the mail or other common carriers;

         (iii) The pharmacy shall utilize, as appropriate and in accordance with standards of the manufacturer, United States Pharmacopeia, and Federal Drug Administration and other standards adopted by the State Board of Pharmacy, temperature tags, time temperature strips, insulated packaging, or a combination of these; and

         (iv) The pharmacy shall establish and notify the enrollee of its policies and procedures to address instances in which medications do not arrive in a timely manner or in which they have been compromised during shipment and to assure that the pharmacy replaces or makes provisions to replace such drugs.

For purposes of this subparagraph, the term "group model health maintenance organization" means a health maintenance organization that has an exclusive contract with a medical group practice to provide or arrange for the provision of substantially all physician services to enrollees in health benefits plans of the health maintenance organization; or

      (C) A pharmacist or pharmacy to dispense a prescription and deliver it to another pharmacist or pharmacy to make available for a patient to receive the prescription and patient counseling according to Code Section 26-4-85. The State Board of Pharmacy shall adopt any rules and regulations necessary to implement this subparagraph;

   (12) Unless otherwise authorized by law, dispensing or causing to be dispensed a different drug or brand of drug in place of the drug or brand of drug ordered or prescribed without the prior authorization of the practitioner ordering or prescribing the same;

   (13) Violating or attempting to violate a statute, law, or any lawfully promulgated rule or regulation of this state, any other state, the board, the United States, or any other lawful authority without regard to whether the violation is criminally punishable, when such statute, law, rule, or regulation relates to or in part regulates the practice of pharmacy or another business or profession licensed under this chapter, when the licensee or applicant knows or should know that such action violates such statute, law, or rule; or violating either a public or confidential lawful order of the board previously entered by the board in a disciplinary hearing, consent decree, or license reinstatement;

   (14) Having his or her license to practice pharmacy or another business or profession licensed under this chapter revoked, suspended, or annulled by any lawful licensing authority of this or any other state, having disciplinary action taken against him or her by any lawful licensing authority of this or any other state, or being denied a license or renewal by any lawful licensing authority of this or any other state;

   (15) Failure to demonstrate the qualifications or standards for a license contained in this Code section or under the laws, rules, or regulations under which licensure is sought or held; it shall be incumbent upon the applicant to demonstrate to the satisfaction of the board that he or she meets all the requirements for the issuance of a license, and if the board is not satisfied as to the applicant's qualifications, it may deny a license without a prior hearing; provided, however, that the applicant shall be allowed to appear before the board if he or she so desires; or

   (16) Knowingly performing any act which in any way aids, assists, procures, advises, or encourages any unlicensed person or any licensee whose license has been suspended or revoked by the board to practice pharmacy or another business or profession licensed under this chapter or to practice outside the scope of any disciplinary limitation placed upon the licensee by the board.

(b) The board shall have the power to suspend or revoke the license of the pharmacist in charge when a complete and accurate record of all controlled substances on hand, received, manufactured, sold, dispensed, or otherwise disposed of has not been kept by the pharmacy in conformance with the record-keeping and inventory requirements of federal law and the rules of the board.

(c) Any person whose license to practice pharmacy in this state has been suspended, revoked, or restricted pursuant to this chapter, whether voluntarily or by action of the board, shall have the right, at reasonable intervals, to petition the board for reinstatement of such license pursuant to rules and regulations promulgated by the board. Such petition shall be made in writing and in the form prescribed by the board. The board may, in its discretion, grant or deny such petition, or it may modify its original finding to reflect any circumstances which have changed sufficiently to warrant such modifications.

(d) Nothing in this Code section shall be construed as barring criminal prosecutions for violations of this chapter.

(e) All final decisions by the board shall be subject to judicial review pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

(f) Any individual or entity whose license to practice pharmacy is revoked, suspended, or not renewed shall return his or her license to the offices of the board within ten days after receipt of notice of such action.

(g) For purposes of this Code section, a conviction shall include a finding or verdict of guilty or a plea of guilty, nolo contendere, or no contest in a criminal proceeding, regardless of whether the adjudication of guilt or sentence is withheld or not entered thereon.

(h) Nothing in this Code section shall be construed as barring or prohibiting pharmacists from providing or distributing health or drug product information or materials to patients which are intended to improve the health care of patients.

(i) The board shall have the power to suspend any license issued under Article 3 of this chapter when such holder is not in compliance with a court order for child support as provided in Code Section 19-6-28.1 or 19-11-9.3. The board shall also have the power to deny the application for issuance or renewal of a license under Article 3 of this chapter when such applicant is not in compliance with a court order for child support as provided in either of such Code sections. The hearings and appeals procedures provided for in such Code sections shall be the only such procedures required to suspend or deny any license issued under Article 3 of this chapter.

(j) Nothing in this chapter shall prohibit any person from assisting any duly licensed pharmacist or practitioner in the measuring of quantities of medication and the typing of labels therefor, but excluding the dispensing, compounding, or mixing of drugs, provided that such duly licensed pharmacist or practitioner shall be physically present in the dispensing area and actually observing the actions of such person in doing such measuring and typing, and provided, further, that no prescription shall be given to the person requesting the same unless the contents and the label thereof shall have been verified by a licensed pharmacist or practitioner.

(k) The board shall have the power to suspend any license issued under Article 3 of this chapter when such holder is a borrower in default who is not in satisfactory repayment status as provided in Code Section 20-3-295. The board shall also have the power to deny the application for issuance or renewal of a license under Article 3 of this chapter when such applicant is a borrower in default who is not in satisfactory repayment status as provided in Code Section 20-3-295. The hearings and appeals procedures provided for in Code Section 20-3-295 shall be the only such procedures required to suspend or deny any license issued under Article 3 of this chapter.

(l) (1) The executive director is vested with the power and authority to make or cause to be made through employees or agents of the board or the Georgia Drugs and Narcotics Agency such investigations as he or she or the board may deem necessary or proper for the enforcement of the provisions of this Code section and the laws relating to the practice of pharmacy and other businesses and professions licensed by the board. Any person properly conducting an investigation on behalf of the board shall have access to and may examine any writing, document, or other material relating to the fitness of any licensee or applicant. The executive director or his or her appointed representative may issue subpoenas to compel access to any writing, document, or other material upon a determination that reasonable grounds exist for the belief that a violation of this Code section or any other law relating to the practice of pharmacy or other business or profession subject to regulation or licensing by the board may have taken place. Notwithstanding the provisions of this paragraph, Code Section 16-13-60 shall control the access to or release of information.

   (2) If a licensee is the subject of a board inquiry, all records relating to any person who receives services rendered by that licensee in his or her capacity as licensee shall be admissible at any hearing held to determine whether a violation of this chapter has taken place, regardless of any statutory privilege; provided, however, that any documentary evidence relating to a person who received those services shall be reviewed in camera and shall not be disclosed to the public.

(m) A person, firm, corporation, association, authority, or other entity shall be immune from civil and criminal liability for reporting or investigating the acts or omissions of a licensee or applicant which violate the provisions of subsection (a) of this Code section or any other provision of law relating to a licensee's or applicant's fitness to practice a business or profession licensed under this chapter, or for initiating or conducting proceedings against such licensee or applicant, if such report is made or action is taken in good faith, without fraud or malice. Any person who testifies or who makes a recommendation to the board in the nature of peer review, in good faith, without fraud or malice, before the board in any proceeding involving the provisions of subsection (a) of this Code section or any other law relating to a licensee's or applicant's fitness to practice the business or profession licensed by the board shall be immune from civil and criminal liability for so testifying.

(n) Neither the issuance of a private reprimand nor the denial of a license by reciprocity nor the denial of a request for reinstatement of a revoked license nor the refusal to issue a previously denied license shall be considered to be a contested case within the meaning of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; notice and hearing within the meaning of such chapter shall not be required, but the applicant or licensee shall be allowed to appear before the board if he or she so requests. The board may resolve a pending action by the issuance of a letter of concern. Such letter shall not be considered a disciplinary action or a contested case under Chapter 13 of Title 50 and shall not be disclosed to any person except the licensee or applicant.

(o) If any licensee or applicant after reasonable notice fails to appear at any hearing of the board for that licensee or applicant, the board may proceed to hear the evidence against such licensee or applicant and take action as if such licensee or applicant had been present. A notice of hearing, initial or recommended decision, or final decision of the board in a disciplinary proceeding shall be served personally upon the licensee or applicant or served by certified mail or statutory overnight delivery, return receipt requested, to the last known address of record with the board. If such material is served by certified mail or statutory overnight delivery and is returned marked "unclaimed" or "refused" or is otherwise undeliverable and if the licensee or applicant cannot, after diligent effort, be located, the executive director, or his or her designee, shall be deemed to be the agent for service for such licensee or applicant for purposes of this Code section, and service upon the executive director, or his or her designee, shall be deemed to be service upon the licensee or applicant.

(p) Board proceedings that result in the voluntary surrender of a license or the failure to renew a license by the end of an established penalty period shall have the same effect as a revocation of such license, subject to reinstatement in the discretion of the board. The board may restore and reissue a license to practice under this chapter and, as a condition thereof, may impose any disciplinary sanction provided by this Code section or the provisions of this chapter.

(q) This Code section shall apply equally to all licensees or applicants whether individuals, partners, or members of any other incorporated or unincorporated associations, corporations, limited liability companies, or other associations of any kind whatsoever.

Code 1981, § 26-4-60, enacted by Ga. L. 1998, p. 686, § 1; Ga. L. 1999, p. 81, § 26; Ga. L. 1999, p. 277, § 8; Ga. L. 2006, p. 444, § 1/HB 246; Ga. L. 2007, p. 463, § 1/SB 205; Ga. L. 2011, p. 541, § 2/SB 81; Ga. L. 2012, p. 1092, § 1/SB 346; Ga. L. 2013, p. 192, § 1-16/HB 132.