Under North Carolina law, regulatory agencies can issue rules only to the degree they’ve been authorized to do so by the General Assembly. In a recent case in involving how many hours per day pharmacists can work, the state’s second highest court adopted a narrow interpretation of agency power to reject a proposed rule.
In 1998, the N.C. Board of Pharmacy proposed a limit on the length of pharmacists’ workday. Specific proposed Rule .2506 stated:
“A permit holder shall not require a pharmacist to work longer than 12 continuous hours per work day. A pharmacist working longer than six continuous hours per work day shall be allowed during that time period to take a 30 minute meal break and one additional 15 minute break.”
The state Rules Review Commission, which is charged with ensuring that state agencies follow proper procedure in promulgating regulations, turned down the rule. It found that the Assembly hadn’t granted the pharmacy board the authority to regulate pharmacists’ working conditions. The Board of Pharmacy challenged the Rules Review Commission’s action in the courts, including appealing after a superior court judge ruled for the RRC.
In a decision Nov. 1, a majority of a three-judge N.C. Court of Appeals panel upheld the RRC’s action.
“As the trial court concluded, and upon our review of these statutes, any regulation of pharmacies does not extend to regulating working hours as set out in proposed Rule .2506,” Judge Wanda Bryant wrote for the appeals court.
The pharmacy board argued that it had been granted the power to set maximum working hours through a variety of state laws. These included N.C.G.S. § 90-85.32(a), authorizing it to “adopt rules governing the filling, refilling and transfer of prescription orders” so as to “assure the safe and secure distribution of drugs.”
“However, setting limits on the number of hours a pharmacist can work and requiring breaks for meals and otherwise, clearly does not concern the filling, refilling and transfer of prescriptions,” Bryant wrote.
“The North Carolina Department of Labor is the only entity with authority to regulate working hours of pharmacists in pharmacies, and such regulation is solely through the Wage and Hour Act,” she wrote.
Judge Sanford Steelman dissented from the majority holding, finding that the board had authority to limit the hours pharmacists worked.
“The majority asserts that there is no relationship between the continuous hours worked by a pharmacist and their ability to accurately perform their work. Clearly this is not correct. The consequences of an improperly filled prescription can be deadly to a customer. This was recognized by the North Carolina Board of Pharmacy when it enacted 21 NCAC 46.1811 effective 1 July 1996, which reads as follows:
‘Pharmacists shall not dispense and permit holders shall not allow a pharmacist to dispense prescription drugs at such a rate per hour or per day as to pose a danger to the public health or safety.’
“The proposed rule is simply a refinement of the existing rule, setting forth specific guidelines for the consecutive hours to be worked by a pharmacist.”
Because of Steelman’s dissent, the N.C. Supreme Court will probably have the final say in the matter. State requires the high court to hear cases with a dissent in the Court of Appeals if the losing part further appeals.
The case is N.C. Bd. of Pharm. v. Rules Review Comm’n, (04-929).
http://www.aoc.state.nc.us/www/public/coa/opinions/2005/040929-1.htm
Michael Lowrey is associate editor of Carolina Journal.