Ohio Board of Pharmacy proposes sweeping new regs to deal with understaffing

In response to reports that workers in understaffed Ohio pharmacies can’t do their jobs in a way that protects patients, the state Board of Pharmacy has proposed new rules. They seem to be particularly aimed at large chain pharmacies such as CVS, Walgreens and Kroger, where workers report problems at much higher rates than their peers in independent and small-chain pharmacies.

The proposed rules — which will now be subjected to a public comment period — could mandate increased staffing, would set a maximum time to fill prescriptions, and give pharmacists greater authority to suspend non-core services if they believe they’re getting in the way of prompt, safe delivery of medications. Importantly, the rules would expressly prohibit retaliation against workers who follow the new guidelines.

The pharmacy board released the draft rules on Friday. They come after the Ohio Capital Journal in July began reporting on the findings of pharmacy board inspectors at various CVS stores in Ohio. In proposing the rules, the board said they were mostly the consequence of the problems found during pharmacy visits.

Inspectors found severe understaffing, lack of controls over dangerous drugs, dirty conditions, expired and adulterated drugs on pharmacy shelves and mistakes filling prescriptions or instructing patients how to use them.

“Corners are cut to dispense prescriptions,” a CVS employee told inspectors on one occasion. On others, pharmacists and pharmacy technicians said that CVS regional and district managers were unresponsive to pleas for help.

One common problem found by inspectors: delays filling prescriptions that could be as long as two weeks or even a month.

To deal with that issue, one of the proposed rules would define a “significant delay” in filling a prescription as a 72-hour gap between the time a patient submits a script and the time the pharmacy fills it. Each such delay could constitute a violation of a pharmacy’s license, and the rule contemplates a process for dealing with them.

“Those pharmacies that are unable to provide patients medications in a timely manner may experience significant costs depending on the number of prescriptions that are experiencing a significant delay and the remediation measures required,” a document accompanying the draft rules said. “For example, an understaffed pharmacy experiencing a delay may have to surge additional staff to that store or may have to implement ‘dark hours’ to catch up on any backlog.”

Reactions to reporting on CVS’s problems in Ohio and surveys the Board of Pharmacy cited as they proposed the rules show that understaffing extends far beyond the Buckeye State.

A 2021 survey asked Ohio pharmacists whether they disagreed with this statement: “I feel that the workload-to-staff ratio allows me to provide for patients in a safe manner.” 

Only 26% of small-chain and independent pharmacies disagreed. A whopping 89% of large-chain pharmacies said staffing in their workplaces wasn’t adequate to protect patient safety.

The pharmacy board reported similar findings in surveys of pharmacists in Nebraska, Tennessee and New York. Surveys in Missouri and Kansas found that majorities of pharmacists there didn’t believe they had “adequate time to complete my job in a safe and effective manner,” but they didn’t distinguish between big chains and other types of pharmacies.

Among the complaints of Ohio’s big-chain pharmacists is that they and their staff face quotas for tasks that are “ancillary” to dispensing medicine. Current and former CVS technicians and pharmacists told the Capital Journal that they face relentless pressure to make phone calls to press people to come in for refills, get vaccines or to set up and demonstrate medical equipment such as CPAP machines — despite having a queue of hundreds or thousands of unfilled prescriptions.

To deal with that issue, the proposed rules would prohibit “the use of quotas in the provision of ancillary services in an outpatient pharmacy. The board said that Walgreens already “has publicly committed to the elimination of all ‘task-based metrics.'”

One characteristic distinguishing CVS from large-chain competitors such as Walgreens, Kroger and Walmart is that CVS is part of an even larger healthcare corporation. It owns the nation’s largest pharmacy retailer as well as Aetna, a top-ten insurer, and CVS Caremark, the largest pharmacy benefit manager.

The latter company negotiates rebates from drugmakers in exchange for covering their products and it decides how much to reimburse its own and competing pharmacies that dispense them. Smaller competitors five years ago accused CVS of using its dominance as a pharmacy benefit manager to reimburse them below their cost and then buying their pharmacies.

CVS has often bought those pharmacies, closed them and moved their prescriptions to the nearest CVS store without adding staff, employees told Board of Pharmacy inspectors.

In 2021, CVS then announced that it was closing 300 of its own stores a year for each of the next three years as well. It moved scripts from those stores to other CVS locations as well. And the company earlier this month announced that it’s laying off an additional 5,000.

Even with all the extra work, CVS management often disallowed extra staffing even when it was available, current and former employees told the Capital Journal. The company didn’t respond directly when asked whether district and regional managers received bonuses based in part on keeping employee hours low.

Among the new rules the Ohio Board of Pharmacy is proposing is a “requirement to ensure sufficient personnel to prevent fatigue, distraction, or other conditions which interfere with a pharmacist’s ability to practice with reasonable competence and safety.” It also “requires staffing levels shall not be solely based on prescription volume but shall consider any other requirements of pharmacy personnel during working hours.”

The board estimates that among large pharmacy chains the requirement would cost CVS $25 million a year; Walgreens, $17 million; Kroger, $14 million, and Walmart: $10 million. Those amounts would equal 0.4% to 0.6% of the companies’ annual profit from pharmacy, the estimate said.

In addition to their other provisions, the new rules would give pharmacists additional power to stop performing non-pharmacy functions and make other adjustments so that employees receive proper breaks and can perform their jobs safely. And they prohibit managers from retaliating against pharmacists who do that.