MONTPELIER — Walgreens Co., in its response to a complaint by the state about the unplanned closures of pharmacies and the effects on customers, has asked the Vermont Board of Pharmacy to dismiss the complaint entirely.
It’s the first of what’s likely to be an avalanche of legal motions in what is now a quasi-judicial process. Until and unless the Vermont Office of Professional Regulation and Walgreens settle the allegations, the Board of Pharmacy must decide whether to discipline Walgreens for a laundry list of alleged violations at its 32 locations across the state, including in Brattleboro, Bellows Falls, Wilmington, Bennington and Manchester. That could include sanctions up to and including loss of license.
Walgreens, which had been given an additional month to respond to the allegations, replied with a motion to dismiss the complaint “with prejudice” — that is, preventing them from being refiled — and a motion to stay its deadline to respond. The pharmacy chain originally faced a July 20 deadline, which was pushed forward to Aug. 20 at Walgreens’ request.
In its motion to dismiss, Walgreens said the state had overreached in its assertion that many of the company’s stores had not met professional standards, that the statute governing the operation of pharmacies is vague, and that the allegations violate Walgreens’ due process rights. The motion was filed by White River Junction attorney P. Scott McGee on behalf of Washington, D.C.-based Quarles and Brady LLP.
“In the context of the uncertainty and instability caused by the pandemic, [Walgreens] provided reasonable care to its patients while grappling with contingencies that impacted pharmacists nationwide. Despite this, [the Vermont Office of Professional Regulation] is attempting to unfairly hold [Walgreens] to a nearly impossible standard of care under the circumstances and seeks to discipline [Walgreens] for unprecedented circumstances,” the motion said.
It further claims that the state “unilaterally — and without notice — determined that [Walgreens’] pharmacy closures are in violation of law.”
While the state acknowledges the closures were unexpected and temporary, “even though [Walgreens] pharmacies were mostly open and serving the public during a pandemic, [the Office of Professional Regulation] unreasonably seeks to penalize [Walgreens] for unexpected closures,” the motion argues.
The initial 40-page complaint alleges that the company unreasonably restricted consumer access to medication and hardship to customers by closing stores without notice; that it failed to comply with federal and state professional standards; and that it engaged in “conduct of a character likely to deceive, defraud or harm the public.”
The complaint further alleges Walgreens “failed to comply on an egregious scale” with state law by operating stores without a pharmacist-manager present, including locations in Bellows Falls and on Canal Street in Brattleboro, and did not identify or address working conditions that jeopardized patient care.
The state complaint also alleges that Walgreens’ computer system continued to order refills and charge customers’ insurance for medications they could not access because the store was closed. That led to customers scrambling to find another pharmacy that would fill the script — and in some cases, led to customers paying out of pocket at significant expense.
Incidents in Southern Vermont included unexpected closures in Brattleboro and Manchester that led to customers driving significant distance for prescriptions; insurance billing for medications that were not available because of the closures, meaning consumers had to pay out of pocket; and continued billing for prescriptions in Manchester, despite that pharmacy being closed after a fire.
The state’s response to the motion to dismiss is expected to be filed next week, according to S. Lauren Hibbert, director of the Office of Professional Regulation.
The state did respond to Walgreens’ motion for a stay on its response, saying it’s neither allowed by administrative rules nor warranted.
“Walgreens has already had additional time, almost eight weeks, to, in its own words, ‘determine the facts and provide a full and accurate response to each of the charges,’” attorney Jennifer B. Colin said on behalf of the Office of Professional Regulation. “The filing of Walgreens’ answer has already been delayed to allow respondents adequate time to gather facts and respond substantively to each of the specifications.”
Despite all the legal motions, the complaint is not before a civil or criminal court. Rather, it’s up to the Board of Pharmacy to act as jury in the matter, with a judge hired for the proceedings and administrative law officers appointed to assist the board. Retired Washington County Probate Judge George Belcher has been retained as the presiding officer in the matter.
The state Board of Pharmacy has eight members, who are appointed by the governor’s office.