Ohio pharmacy board members seem skeptical of CVS claims

The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.

A disciplinary hearing related to understaffing at some CVS pharmacies in Ohio didn’t come to a conclusion Wednesday. But members of the Ohio Board of Pharmacy seemed skeptical of some of claims attorneys for the corporation were making.

The hearing, which began on Tuesday, was specifically about problems Board of Pharmacy inspectors found at a CVS in Canton when they visited on Sept. 13, 2021. They found a pharmacy so understaffed that the inside counter was closed, stock — including controlled substances — hadn’t been shelved, and customers had to wait in a drive-through line that could take more than an hour to get through and still end with patients not getting their medicine.

Inspectors found that it took almost two weeks for the overwhelmed pharmacy to fill many prescriptions. And on a follow-up call a month later, they were told the backlog for some was a full month.

The pharmacy board, the state’s regulator, could levy fines against CVS, or it could revoke its license for store No. 2063 in Canton. But the hearing has implications well beyond that.

The hearing could be the first of about a dozen for Ohio CVS stores the Board of Pharmacy has issued citations against. In August, Ohio Attorney General Dave Yost said his office would start asking questions about the problems. In addition, pharmacy workers in other states have told the Capital Journal about potential safety problems associated with understaffing at CVS stores there.

CVS has said that the problems found at the Canton store were the result of the COVID 19 pandemic. They were testing and vaccinating and filling prescriptions at a time when it was hard to find an adequate number of workers.

But on Wednesday, some of the lawyerly tactics used by CVS’s attorneys didn’t seem to sit well with members of the pharmacy board, most of whom are pharmacists themselves.

Witnesses who worked in the CVS store in Canton said it took way too long in 2021 to fill prescriptions because there weren’t nearly enough workers and that CVS corporate officials weren’t helping. CVS attorney Kristina Dahmann has tried to cast doubt on those claims by repeatedly pointing out that Ohio pharmacy rules don’t set minimum staffing levels, nor do they say how long is too long to wait for your prescription to be filled.

In the wake of the CVS inspections, the board in August proposed a sweeping set of new regulations to address those problems by giving pharmacists more power to make store-level staffing decisions and by requiring that the vast majority of scripts be filled within 72 hours.

But at one point on Wednesday, board member T.J. Grimm brushed Dahmann’s arguments aside in favor of the obvious.

“If you walked into one of my stores and I had 15 people working and they were a month behind (filling prescriptions) would you consider that to be adequate staffing?” Grimm asked pharmacy board inspector Kimberly Hollingshead, who helped write the report about deficiencies at CVS store No. 2063.

A day earlier, board member N. Victor Goodman, a lawyer, seemed aghast after a former technician at the store, Haille Stanick, testified. She said that Dahmann had called her and told her that since Stanick no longer lived in Ohio, she didn’t have to respond to the Board of Pharmacy’s subpoena.

Dahmann made a similar maneuver on Wednesday.

Henry Appel, principal assistant Ohio attorney general, is prosecuting CVS in the administrative proceeding. He wants to subpoena the company’s custodian of records in an attempt to get copies of written communications between the Canton CVS’s pharmacy manager and her supervisors as problems spiraled in late 2021.

Dahmann resisted first by refusing to give the records custodian’s name out of concerns for “personal confidentiality.” She then argued that some of the relevant CVS entities are “foreign” companies domiciled in Rhode Island and Connecticut and thus are not subject to subpoenas from Ohio’s pharmacy regulator.

Appel scoffed at the claim.

“CVS is apparently enough of an Ohio presence to operate dozens of stores,” he told the board. “They got licenses from you to operate pharmacies all over the state, but they don’t have enough contact with Ohio that when you want to get a copy of their communications, you can get them.”

Dahmann on Wednesday tried to push back on other testimony from Tuesday by citing the letter of Board of Pharmacy rules.

Stanick, the former technician, testified that at one point at the harried end of 2021, the Canton store accidentally gave a patient a hypnotic sedative when she had a prescription for cholesterol medication. Stanick said it could have been a disaster if the patient unknowingly took the sedative and got behind the wheel.

After testimony Tuesday that CVS never reported the mistake to the Board of Pharmacy, Dahmann on Wednesday questioned whether the company had a duty to report it. Board Member Anthony Buchta Sr. asked Lisa Dietsche, the inspectors’ supervisor, when a pharmacy has a duty to report such mistakes.

Dietche said that if the patient wasn’t harmed, CVS probably didn’t have to report the error. But she added that since generic ambien is a controlled substance, CVS probably did have a duty to report that.

The hearing won’t resume until the board’s December meeting at the earliest.