Alaska Employment Law

Medical Board - Incomplete application: A Hawaii psychiatrist sought a license so he could do locum tenens work in Alaska.  He failed to list six states where he’d been licensed (though where he’d never worked, much less been disciplined).  The Board upheld the offer of a conditional license (acceptance of a $1000 fine and a reprimand):

This decision concludes that by failing to complete his application for licensure accurately, Dr. Sykes engaged in unprofessional conduct as defined in a Board regulation, and that accordingly he is subject to refusal of a license or, if he is offered and accepts a license, to discipline. It substantially affirms the choice offered to Dr. Sykes in October of 2007, but with a downward adjustment of the civil fine proposed at that time to achieve a better fit with the sanctions imposed in similar cases against other physicians.

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Dr. Sykes contends that since his error was careless rather than intentional, he did not fail to disclose material information “to” obtain a license. In other words, he suggests that the word “to” in 12 AAC 40.967(2) implies that the failure to disclose must have a purpose, and thus be deliberate. This is not a correct reading of the regulation. 12 AAC 40.967(2) provides that “misrepresenting, concealing, or failing to disclose material information to . . . obtain a license” is unprofessional. If “failing to disclose” had to be purposeful, it would be indistinguishable from “concealing” and the extra phrase “failing to disclose” would serve no purpose. The fact that the Board included “failing to disclose” in the sentence indicates that the Board intended to address nondisclosures that did not rise to the level of “concealing.” This has been the Board’s consistent reading of the regulation when applying it in the past, and it should not be read differently in Dr. Sykes’s case. The word “to” in the regulation means only that the nondisclosure needs to be in connection with obtaining a license.

In the Matter of William M. Sykes, OAH No. 08-0475-MED (Jan. 29, 2009)(footnote omitted).  The ALJ was Chris Kennedy.

Pharmacy Board - Previous felony convictions: A Missouri pharmacy with a multistate business sought an out-of-state pharmacy registration.  Its application disclosed that that one of its three owners and managing officers had been convicted of several felonies related to his pharmacy practice in 1985. The firm appealed the denial of its application.  The Board upheld the denial:

As a general matter, an out-of-state registration is a license that the Board may—but is not required to—deny if an owner of the applying pharmacy has ever been convicted of a felony. In challenging the initial denial in this case, Bellevue has the burden to show that it ought to receive the registration. At the hearing, Bellevue made some headway toward making that showing, but it fell short of a fully convincing presentation.

The Board first noted that a felony convicton is not an absolute bar to licensure;

 Although the Board has the authority to refuse a license, including out-of-state registration, on the basis of a prior felony conviction of an owner, it is never required to do so. The statutory chapter on pharmacists and pharmacies says that the Board “may” deny a license for various enumerated reasons, not that it “shall” deny or “may not grant” the license.  This means that the Board evaluates the conduct and the totality of the circumstances, and makes the decision on the merits of the particular case before it.  The Board has not uniformly considered conviction of a drug-related felony to be a disqualification from licensure.

But the Board then found that the felon’s hearing testimony had minimized his misconduct and that the pharmacy had failed to show a need for an additional pharmacy in Alaska sufficient to offset the risk presented by its employee’s misconduct.

In the Matter of  Pharmacy Solutions, Inc., OAH No. 08-0344-PHA (Feb. 19, 2009)(footnote omitted).  Chis Kennedy was the ALJ here, as well.