ALJDEC decisions subject to certification as final

18F-0107-PHB · Pharmacy Board · 2019-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 5, 2019 APPEARANCES: Faize Bashiti on his own behalf; Jeanne Galvin, Esq. for the State Board of Pharmacy ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. The Arizona State Board of Pharmacy (“the Board”) is the authority for regulating the practice of pharmacy in the State of Arizona. 2. On August 16, 2018, the Arizona State Board of Pharmacy issued a Complaint and Notice of Hearing setting the above- captioned matter for hearing on October 11, 2018. The matter was continued and the hearing was conducted on April 5, 2019. 3. Respondent Faize Bashiti holds license number S020398 issued by the Board to practice as a pharmacist. 4. At issue is an “AMENDED INTERIM ORDER FOR PSYCHOLOGICAL EVALUATION (WITH SUBSTANCE ABUSE/USE COMPONENT) PURSUANT TO A.R.S. § 32-1927(F)” issued by the Board on February 2, 2018.[1] 5. Consistent with the terminology used in Notice of Hearing, the Amended Interim Order is referred to as the Interim Order in this Decision. 6. Through the Interim Order, the Board ordered Mr. Bashiti to undergo a psychological evaluation with a substance abuse/use component. 7. Underlying the Board’s Interim Order are allegations that Mr. Bashiti was engaging erratic and/or hostile behavior related to his use and procurement of prescription medication he was taking. 8. Mr. Bashiti did not comply with the Interim Order and, through the Complaint and Notice of Hearing, the Board alleges that he may have committed unprofessional conduct as defined at Ariz. Rev. Stat. section 32- 1901.01(B)(20)(“Violating a formal order … issued or entered into by the board or its executive director pursuant to this chapter.”). 9. As of hearing date, Mr. Bashiti had not complied with the Interim Order. 10. Mr. Bashiti appeared at the hearing and testified on his own behalf. He also presented the testimony of Hind Shabany, M.D., and the testimony of Michael Dekker, D.O. and Barbara Jean-Buric, RPh, the latter two under subpoena issued at his request. 11. Dr. Dekker is board certified in general psychiatry and addiction psychiatry. Mr. Bashiti is a former patient of Dr. Dekker’s. 12. Dr. Shabany is board certified in anesthesiology and pathology. Dr. Shabany is Mr. Bashiti’s mother. 13. The Board presented the testimony of its Deputy Director, Elizabeth Dodge. 14. The Board initiated its investigation of Mr. Bashiti after receiving a December 17, 2017 letter from Dr. Dekker, which the Board treated as a complaint. After receiving Dr. Dekker’s letter, but prior to issuing the Interim Order, the Board solicited additional information from various pharmacists that Mr. Bashiti had interacted with. 15. Dr. Dekker sent his letter “to clarify concerns [he had] regarding [his] patient Faze Bashiti.” The letter shows that Dr. Dekker had previously called the Board to report his concerns about Mr. Bashiti’s behavior. 16. At the hearing, Dr. Dekker provided testimony that was consistent with his letter of concern and through which he affirmed his prior recommendation for Mr. Bashiti to be evaluated by a specialist (other than Dr. Dekker) to determine whether Mr. Bashiti was safe to practice. 17. Dr. Dekker began treating Mr. Bashiti in in September 2016. Beginning in about April 2017, Dr. Dekker became concerned for Mr. Bashiti because his behavior changed and over the course of about the next six months Dr. Dekker saw Mr. Bashiti showing signs of a substance abuse disorder. 18. Mr. Bashiti was taking a high dosage of his prescribed medication,[2] he was using the medication faster than prescribed, he was requesting early refills, and he appeared to have episodes of extreme anxiety when he could not fill the prescriptions as he was requesting, with these episodes occurring nearly monthly. 19. Dr. Dekker received calls from many pharmacies reporting that Mr. Bashiti would raise his voice and make accusations against the pharmacists, and Dr. Dekker’s staff witnessed similar behavior from Mr. Bashiti. This behavior included becoming disruptive repeatedly with raised voice, rapid speech, and difficulty ending a conversation (i.e., he would circle back to the beginning and get more agitated). 20. Dr. Dekker discussed with Mr. Bashiti his usage of the medication. Mr. Bashiti would respond to the effect that his metabolism was different than that of other people, which Dr. Dekker agreed had some merit in theory. Nevertheless, considering Mr. Bashiti’s untoward behavior and that he was taking the medication faster than prescribed, Dr. Dekker was no longer comfortable prescribing the medication at the level he had been. 21. Mr. Bashiti’s behaviors and symptoms were sufficiently concerning that he was discharged as a patient from the clinic where Dr. Dekker worked. 22. In his letter, Dr. Dekker provided his professional opinion that Mr. Bashiti’s behavior was erratic enough to be a cause for concern and that Mr. Bashiti should undergo an evaluation by another specialist. Dr. Dekker also added however that he did not think that Mr. Bashiti was functionally impaired to the point that he could not function in his role as a pharmacist, but he (Dr. Dekker) did not know the full details of Mr. Bashiti’s job. 23. Although not explicit in the evidence taken at hearing, it appears that Mr. Bashiti was not employed as a pharmacist when Dr. Dekker wrote the letter and he remained unemployed as of the hearing date. 24. At the hearing, Dr. Dekker affirmed his opinion that at the time he filed his letter with the Board, it was appropriate for Mr. Bashiti to be evaluated to determine whether he was safe to practice. 25. After receiving Dr. Dekker’s letter, the Board initiated an investigation, as part of which its staff contacted several pharmacies to obtain information about their interactions with Mr. Bashiti. 26. These pharmacies reported information including that: Mr. Bashiti would become agitated and hostile when trying to have his prescription filled early; he engaged in lengthy, hostile conversations, often over an hour long, during which he would speak rapidly, ramble and make no sense, at times failing to complete his thoughts; he would yell; he called one pharmacy eight times one day and then called again the next day; he made a false claim that his doctor had authorized an early refill; he would accuse pharmacists and staff members of falsifying documents or records; he would make threats to file complaints with the Board and to take legal action against the pharmacists; and he would insist that people be fired from their jobs. 27. Mr. Bashiti also told one pharmacist that he was going to follow her to the depths of hell and murder her and then asked her to meet him in the parking lot. He was escorted out and told not to return. 28. In another instance, after Mr. Bashiti arranged to have a prescription filled at a second pharmacy, he was told that he would have to come to the first pharmacy to pick up the original hard-copy of his prescription. Mr. Bashiti told the staff he would be there and that he “had something” for the pharmacy staff, which statement left the staff unnerved. 29. In another instance, Mr. Bashiti told a pharmacist that he would kill himself if he did not get his prescription refilled early. 30. Ms. Dodge testified to the effect that in his interactions with the Board’s staff, Mr. Bashiti was often belligerent, hostile and very agitated, and that he made threats to take legal action against the Board. At times, the staff had to hang up on Mr. Bashiti because he would not let the staff speak. 31. On January 31, 2018, the Board issued the initial interim order and on February 2, 2018, the (Amended) Interim Order. The Board issued the Interim Order because it had a concern as to whether Mr. Bashiti was safe to practice. 32. Through the Interim Order, the Board ordered Mr. Bashiti to undergo and complete a psychological evaluation with a substance abuse/use and/or stimulant use disorder component with either John Toma, Ph.D., Lawrence Sideman, Ph.D., or Phillip Lett, Ph.D. Within ten days of the date of the Interim Order Mr. Bashiti was required to inform the Board’s Director of the name of the evaluator and the date for which the evaluation was scheduled, with the evaluation to be completed within sixty days, and a written report provided to the Board within thirty days of the evaluation date. Mr. Bashiti was also ordered to comply with whatever the evaluator instructed him to do. 33. Mr. Bashiti was required to pay for the evaluation, which was estimated to cost about $2900. 34. At the request of the Board’s Director, Dr. Toma provided an email account of his interactions with Mr. Bashiti. 35. Mr. Bashiti spoke to Dr. Toma for about twenty minutes on February 11, 2018 and Mr. Bashiti expressed that he was unable to obtain medical records for Dr. Toma’s review. Mr. Bashiti asked Dr. Toma whether he could tell the Board that Dr. Toma would conduct the evaluation, and Dr. Toma suggested that it would not be a good idea to do so when no appointment was scheduled. About a week later, Mr. Bashiti called Dr. Toma a second time, and Dr. Toma was of the opinion that Mr. Bashiti did not recall having previously spoken to him. 36. Dr. Sideman also provided the Board with an account of his interactions with Mr. Bashiti. Mr. Bashiti was agitated during a twenty minute conversation and had to be deescalated several times. They agreed that Mr. Bashiti would provide Dr. Sideman with a copy of the Interim Order so that Dr. Sideman could determine whether he would be a good fit to provide the evaluation. 37. Mr. Bashiti did not provide Dr. Sideman with the Interim Order, but instead sent videos of a Board meeting. Dr. Sideman determined that it would not be appropriate for him to conduct the evaluation, for reasons including Mr. Bashiti’s uncivil behavior and Dr. Sideman’s belief that he was being attacked by Mr. Bashiti. 38. After Mr. Bashiti did not comply with the Interim Order within the time allotted, the Board opened a complaint that led to the Complaint and Notice of Hearing being issued. 39. Prior to the hearing, the Board took the position that the only issue for hearing was whether Mr. Bashiti had complied with the Interim Order and to the effect that he was not entitled to contest the merits of that Order. Mr. Bashiti’s position was to the effect that there was no justification for issuing the Interim Order and that he should be afforded the opportunity to prove that. 40. At the hearing, the Board requested that Mr. Bashiti’s license be revoked because he is not capable of being regulated. 41. During the hearing, Mr. Bashiti made assertions to the effect that the evidence against him was false, but he did not present substantial evidence to support those assertions. CONCLUSIONS OF LAW The Board bears the burden of persuasion. Ariz. Rev. Stat. § 41- 1092.07(G)(2). The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. Black’s Law Dictionary 1373 (10th ed. 2014). Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). “Substantial evidence is evidence which would permit a reasonable person to” conclude that the proposed finding should be substantiated. See Sierra Club – Grand Canyon Chapter v. Ariz. Corp. Comm’n, 237 Ariz. 568, ¶ 22, (2015 App.)(citing In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, (1999). A “contested case” is a proceeding in which the legal rights of a party are required or permitted by law to be determined by an agency after an opportunity for an administrative hearing. Ariz. Rev. Stat. § 41-1001(4). An “appealable agency action” is an action that determines the legal rights, duties or privileges of a party and that is not a contested case. Appealable agency actions do not include interim orders by self-supporting regulatory boards. Ariz. Rev. Stat. § 41-1092(3). Consequently, this matter is a contested case. See Ariz. Rev. Stat. § 41-1092.02. Ariz. Rev. Stat. section 32-1927(F) provides that: The board or, if delegated by the board, the executive director shall require any combination of mental, physical, psychological, psychiatric or medical competency examinations or pharmacist licensure examinations and conduct necessary investigations including investigational interviews between representatives of the board and the pharmacist or pharmacy intern to fully inform itself about any information filed with the board under this section. These examinations may also include biological fluid testing. The board may require the pharmacist or pharmacy intern, at that person's expense, to undergo assessment by a board-approved substance abuse treatment and rehabilitation program.

Violation of a formal order issued by the Board is unprofessional conduct. Ariz. Rev. Stat. § 32-1901.01(B)(20). A pharmacist who commits unprofessional conduct is subject to discipline by the Board. Ariz. Rev. Stat. § 32-1927(A)(1). Prior to the hearing, the Board took the position that the only issue for hearing was whether Mr. Bashiti complied with the Interim Order. The Board’s position was that this was a “yes or no” question: either Mr. Bashiti complied with the Interim Order or he did not, and if not, then Mr. Bashiti has violated section 32-1901.01(B)(20). Mr. Bashiti acknowledged that he had not complied with the Interim Order and took the position that he was entitled to contest the merits of the Board’s decision to issue that order. Orders for professionals to undergo evaluations such as Mr. Bashiti was ordered to undergo are not considered to be disciplinary in nature, but rather are investigatory in nature. Such an order is permissible because Mr. Bashiti cannot be disciplined without a hearing, at which time must be accorded due process. See Wassef v. Ariz. Bd. of Dental Exam’rs, 242 Ariz. 90, 93 (App. 2017)(citations from other jurisdictions omitted). Due process generally requires notice and an opportunity to be heard in a meaningful manner and at a meaningful time. Id. The Board’s position that the hearing was limited to the “yes or no” question of whether Mr. Bashiti complied with the Interim Order is not consistent with Wassef because the hearing would not provide a meaningful opportunity for Mr. Bashiti to be heard on the issue of whether it was appropriate for the Board to order that he undergo the evaluation. Consequently, the mere fact that Mr. Bashiti did not comply with the Board’s Interim Order is not a sufficient basis on which to discipline his license. In this case, the scope of the hearing was not limited solely to the question of whether Mr. Bashiti has complied with the Interim Order, and Mr. Bashiti had the opportunity at the hearing to present evidence, including evidence to rebut the Board’s allegations, and to cross-examine the Board’s witnesses. Consequently, Mr. Bashiti has received due process. Mr. Bashiti’s own witness[3] Dr. Dekker presented credible testimony showing that Mr. Bashiti might have a substance abuse disorder and that it was appropriate for him to be evaluated to determine whether he was safe to practice. In addition, the Board presented credible evidence showing that Mr. Bashiti was behaving inappropriately at various pharmacies and that he had made a threat of violence against at least one pharmacist. This evidence supports Dr. Dekker’s professional judgment that an evaluation was warranted. Mr. Bashiti presented no substantial evidence to rebut the Board’s allegations and his attitude shows a lack of respect for the Board and its authority. The preponderance of the evidence shows that Board had justifiable concerns about whether Mr. Bashiti was safe to practice and that it was appropriate for the Board to require Mr. Bashiti to undergo the evaluation as ordered. Considering the facts and circumstances of this matter, particularly Mr. Bashiti’s threats against pharmacists and others, it is appropriate for the Board to revoke Mr. Bashiti’s license. RECOMMENDED ORDER IT IS ORDERED that on the effective date of the final order in this matter, Faize Bashiti’s license number S020398 to practice as a pharmacist is revoked. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, May 10, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Kamlesh Gandhi, Executive Director Pharmacy Board ----------------------- [1] The initial Interim Order was issued on January 31, 2018; the only change in the Amended Order was to change the professionals from whom Mr. Bashiti could obtain the evaluation. [2] Dr. Dekker reported that Mr. Bashiti had been taking the medication at this dosage for several years based on the records he received. [3] Albeit under subpoena.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826