The Commonwealth of Massachusetts
Office of Health and Human Services
                  Department of Public Health
                                                 Division Health Professional Licensure

DEVALL, PATRICK
GOVERNOR

TIMOTHY P. MURRAY
LIEUTENANT GOVERNOR

JUDYANN BIGBY, MD
SECRETARY

JOHN AUERBACH
COMMISSIONER

     Board of Registration in Pharmacy
239 Causeway Street, Suite 500, 5th Floor
                  Boston, MA 02114
                     (800) 414-0168
http://www.mass.gov/dph/boards/pharmac

First Class and Certified Mail No. 7010 2780 0001 8675 8350

June 6,	2012

Samuel Lazarus, Esq.
888 Washington Street 3rd, Floor
Dedham, MA 02026

Re: Matter of Ernest M. McGee, R. Ph., - Complaint Docket No. PHA-2009-0128 
  Final Decision and Order After Sanction Hearing  

         Dear Atty. Lazarus:

         Enclosed is the Final Decision and Order After Sanction Hearing issued by the Board of 
          Registration in Pharmacy in the above-referenced matter.

Please be advised that Mr. McGee’s appeal rights are noted on page 9 of the enclosed decision.

Very truly yours, 

James T. DeVita, R. Ph.
President

Encl.

cc. Eugene Langner, Prosecuting Counsel w/encl. by Interoffice Delivery

  

COMMONWEALTH OF MASSACHUSETTS

    SUFFOLK COUNTY				BOARD OF REGISTRATION
								IN PHARMACY
	
IN THE MATTER OF 
Ernest M. McGee				            Docket No. PHA-2009-0128
              License No. 20084
              License Expired: 12/31/10

                        FINAL DECISION AND ORDER AFTER SANCTION HEARING

Procedural Background

This matter comes before the Board of Registration in Pharmacy (“Board”)

 for determination of an appropriate sanction and issuance of a Final Decision and 

Order following the Stipulation of the Parties (“Stipulation”) and Request for 

Sanction Hearing filed on October 11, 2011. The Stipulation filed by the parties 

provided as follows: 

1.	On or about January 27, 1987, the Board issued the Respondent a license to practice as a pharmacist in the Commonwealth of Massachusetts, License No. 20084. The Respondent’s license expired on December 31, 2010, and has not been renewed to date. 

2.	On or about July 19, 2011, in the United States District Court for the District of Massachusetts the Respondent pled guilty to, and was convicted of, one count of Conspiracy to Defraud the Government with Respect to Claims, in violation of 18 U.S.C. § 286.

3.	The Respondent’s conduct warrants disciplinary action by the Board against his license to practice as a pharmacist pursuant to G.L. c. 112, § 61, for deceit, gross misconduct, or malpractice in the practice of profession, or for committing any offense against the laws of the commonwealth relating thereto.

4.	The Respondent’s conduct warrants disciplinary action by the board against his license to practice as a pharmacist pursuant to 247 CMR 9.01, for violation of the Code of Professional Conduct and Professional Standards for Registered Pharmacists, Pharmacies and Pharmacy Departments, namely:

a.	247 CMR 9.01(1) for failing to conduct professional activities in conformity with federal, state and municipal laws, ordinances and/or regulations, including the regulations of the Board; and 

b.	247 CMR 9.01(6) for engaging in any fraudulent or deceptive act.

5.	The Respondent’s conduct warrants disciplinary action by the Board against his license to practice as a pharmacist pursuant to 247 CMR 10.03(1) on the following Grounds for Discipline.

a.	247 CMR 10.03(1)(a) for violating any of the duties and standards set our in Board regulations (247 CMR 2.00 et. seq.) or any written policy adopted by the Board; 

b.	247 CMR 10.03(1)(e) for engaging in misconduct in the practice of the profession;

c.	247 CMR 10.01(1)(l) for engaging in conduct that has the capacity or potential to deceive or defraud;

d.	247 CMR 10.03(1)(n) for being convicted of any crime, entering a plea of guilty to any crime, entering a plea of nolo contendere to any crime, or admitting to sufficient facts to warrant a finding of guilty of any crime;

e.	247 CMR 10.03(1)(r) for engaging in conduct that demonstrates a lack of good moral character;

f.	247 CMR 10.03(1)(u) for engaging in conduct which undermines public confidence in the integrity of the profession; and

g.	247 CMR 10.03(1)(w) for failing to comply with recognized ethical standards of the profession, including, but not limited to, the standards of practice of pharmacists, pharmacy interns, pharmacies and pharmacy departments set forth in 247 CMR 9.01: Code of Conduct for Registered Pharmacists, Pharmacies and Pharmacy Departments.

6.	The Respondent’s conduct constitutes unprofessional conduct and conduct which undermines public confidence in the integrity of the profession. Kvitka v. Board of Registration in Medicine, 407 Mass. 140, cert. denied, 498 U.S. 823 (1990); Raymond v. Board of Registration in Medicine, 387 Mass. 708, 713 (1982).

On October 13, 2011, Administrative Hearings Counsel (“AHC”) issued a Notice 

of Hearing scheduled the sanction hearing for November 9, 2011 from 1:00 p.m. to 2:00

p.m. On November 8, 2011, Counsel for Respondent filed a Request for Continuance of 

the Hearing on Sanctions (“Request for Continuance”) The Request for Continuance was

allowed and the sanction hearing was continued to November 22, 2011 from 1:00 p.m. to

2:00 p.m.

		The sanction hearing was convened on November 22, 2011 before the Board 

pursuant to G.L. c. 30A and the Standard Rules of Adjudicatory Practice and Procedure 

At 801 CMR 1.00 et. seq. AHC Maimoona Ahmad presided at the sanction hearing.

Respondent was represented by Samuel Lazarus, Esq. Prosecuting Counsel was Eugene 

Langer, Esq.

Witnesses

The following witnesses testified at the sanction hearing:

1.	Ernest McGee, Respondent

2.	Samuel Lazarus, Esq., Respondent’s Attorney

Exhibits

The following exhibits were entered into the record at the sanction hearing:

1.	Order to Show Cause dated August 1, 2011.

2.	Answer to the Order to Show Cause dated August 21, 2011.

3.	Stipulation of the Parties and Request for Sanction Hearing dated October 11, 2011.

4.	Thirteen (13) letters of Reference/Support from personal and professional acquaintances of the Respondent.

5.	Two (2) Certificates: Certificate of Appreciation from the Health Centers Academy and Certificate of Completion for a Computer Training for Employment program.

Discussion

The Board has reviewed the undisputed facts set forth in the Stipulation, namely 

the finding that on July 19, 2011, the Respondent pled guilty to and was convicted of, one 

count of Conspiracy to Defraud the Government with Respect to Claims to violation of 18 

U.S.C. § 286, in the United States District Court for the District of Massachusetts.

The Board summarily suspended any right Respondent may have to renew 

Pharmacist registration n. 20084 (Expired 12/31/10), pursuant to the Temporary Order of 

Summary Suspension (effective July 19, 2011) and Final Order of Summary Suspension 

(effective July 25, 2011) based on the Information dated June 23, 2011 issued in the 

matter of U.S. v. Ernest McGee (U.S. District Court, District of Massachusetts, Criminal 

 and referenced in the Temporary Order of Summary Suspension; which 

Information details Respondent’s conduct as the assistant pharmacist at Codman Square 

Pharmacy (formerly located at 624-626 Washington Street in Dorchester, Massachusetts), 

from on or about October 2007 till on or about July 2009, soliciting customers (Title 42, 

United States Code, Section 301, et. seq. “Medicaid Program” beneficiaries) to bring their 

prescriptions to the pharmacy and to sell them for cash, with payments to the customers 

ranging from one-tenth to one-third of the amount Codman Square Pharmacy billed and 

was paid by the Medicaid Program, as well as, in some instances, Medicare as a secondary 

insurance, without ever dispensing the medications to the beneficiaries (U.S. District 

Court, District of Massachusetts Filed 6/24/11). (Board records)

	The Board has reviewed the statements and information Respondent presented in 

mitigation which he requests the Board to consider in determining a sanction. The 

Respondent states that he was born in Roxbury in 1960 and was the eighth of ten children.

 He was raised by a single mother in a working-class community. He was the first member 

of his family to attend college. He worked very hard to pursue an education and obtain a 

pharmacy degree, despite many obstacles and a lack of guidance. The Respondent states

 that he is passionate about pharmacy and devoted to the patients and the healthcare staff 

he served as pharmacist. He has submitted numerous letters of support from the healthcare 

  	community he worked with, in addition to character reference letters from family and 

friends Respondent admits to the fraudulent conduct that is the subject of the Stipulation. 

He states that poor judgment led to his misconduct and that when he approached his 

employer about fraudulent activities taking place at the pharmacy, he was told to follow 

orders or he would be replaced. Respondent states that due to his strong relationship with 

his patients and his desire to serve his community, he participated in fraudulent activities 

so he could continue to practice at the pharmacy. He states that he made a terrible mistake, 

one that has left an awful blemish on his career. He wishes to put this incident behind him, 

and practice pharmacy once again in the future. He is willing to do volunteer work, attend 

continuing education classes and take any other steps the Board may recommend so that 

one day he may have his pharmacy license reinstated.

		The Board has reviewed the testimony on behalf of Respondent, stating that 

Respondent is a devoted husband and father. He is responsible for the care of five 

generations of his family and viewed as a patriarch of the family. She states that as a 

pharmacist, Respondent goes above and beyond the call of duty to serve his patients. As 

an example, witness states that she once in the car with Respondent when he received a 

call from an 80 year old patient concerned about new medication the patient had been 

prescribed and that Respondent proceeded to visit the patient at home so that he could 

instruct the patient on the proper use of the medication.

		The Board has also considered the testimony of Respondent’s attorney, Samuel 

Lazarus, Esq. (“Mr. Lazarus”). Mr. Lazarus states that he understands, as does the 

Respondent, that what happened in this case was a choice and that he believes Respondent 

participated in fraudulent behavior because he was insecure about finding a new job, and 

wanted to continue to serve his community. Mr. Lazarus states that he knows Respondent 

worked very hard to gain his pharmacy skills and wants to use them in the future.

		The Board is charged with the responsibility of protecting the public health, safety, 

and welfare. To that end, the Board acts to insure that pharmacies are operated in a safe, 

competent and professional manner and that pharmacist acting as managers of record 

manage and operate pharmacies in accordance with state and federal regulations. The 

Board has broad authority to regulate the conduct of the profession and broad discretion in 

determining an appropriate sanction. Sugarman v. Board of Registration in Medicine, 422 
	
Mass. 338, 342 (1996); see also Kvitka v. Board of Registration in Medicine, 407 Mass. 

140 cert. denied, 498 U.S. 823 (1990); Raymond v. Board of Registration in Medicine, 387 

Mass. 708, 713 (1982). The Board’s regulations establish a system designed to allow the 

Board to monitor carefully the conduct of pharmacist and the management and operation 

of pharmacies, as well as the dispensing and flow of prescription drugs within the 

Commonwealth. G. L. c. 94C, § 6; Board regulations at 247 CMR 2.00 et seq.

		Based on the Stipulation, the statements made and exhibits introduced at the 

sanction hearing, Respondent’s conduct in violation of multiple federal and state statues 

and regulations, and the Board’s responsibility to protect the health, safety and welfare of 

the public and duty to maintain the public’s confidence in the integrity of the pharmacy 

profession, the Board enters the following Order:

ORDER

		At a Board meeting on June 5, 2012, the Board voted to issue this Final Decision 

and Order after Sanction Hearing and REVOKE Respondent’s Pharmacist registration

In favor: Stanley B. Walczyk, R. Ph.; George A. Cayer, R. Ph.; Joanne M. Trifone, R. Ph.; 

Karen M. Ryle, R.Ph.; Anita Young, R.Ph.; Donald D. Accetta, M.D.; James T. DeVita, 

R. Ph.; Kathy J. Fabiszewski, Ph. D., N.P.; and Sophia Pasedis, R. Ph., Pharm.D. 

Opposed: None. Absent: Steven Budish, Public Member.

		The Board will not review any petition for pharmacist licensure in the 

Commonwealth filed sooner than July 19, 2016 (or five (5) years from the Effective Date 

(July 19, 2011) of the summary suspension of Respondent’s right to renew his expired 

pharmacist registration). During the period Respondent’s pharmacist license is revoked, 

Respondent may not be employed as a pharmacist or pharmacy technician to provide any 

services related to the practice of pharmacy, or be employed to provide any pharmacy 

related services in any capacity, in any pharmacy setting in the Commonwealth. If at any 

time in the future Respondent seeks re-licensure by the Board, he will be required to re-

apply to the Board and meet all current requirements for licensure, including, but not 

limited to, requirements related to good moral character, re-examination, re-training and 

such other reinstatement terms and conditions as the Board may deem to be necessary and 

appropriate. Any decision to grant a petition for licensure in the future would include 

probationary status, practice limitations and other monitoring conditions as the Board may 

deem to be necessary and appropriate.

EFFECTIVE DATE

		The Order of the Board shall be effective as of June 6, 2012

RIGHT TO APPEAL

		Respondent is hereby notified of his right to appeal this Final Decision and Order 

after Sanction Hearing to the Supreme Judicial Court, pursuant to G.L. c. 112, § 64 and 

G.L. c. 30A, §§ 14 and 15, within thirty days of receipt of notice of this Final Decision 

and Order after Sanction Hearing.

							Board of Registration in Pharmacy

							James T. DeVita, R. Ph.
							President

Date Issued and Effective Date of REVOCATION ORDER: June 6, 2012

Decision No. 2928

VIA FIRST CLASS MAIL AND CERTIFIED MAIL 
RETURN RECEIPT REQUESTED NO 7010 2780 0001 8675 8350
Samuel Lazarus, Esq.
888 Washington Street, 3rd Floor
Dedham, MA 02026

VIA HAND DELIVERY
Eugene Langner, Prosecuting Counsel
Division of Health Professions Licensure
Department of Public Health
239 Causeway Street
Boston, MA 02114 

      

The Commonwealth of Massachusetts
Office of Health and Human Services
           	       Department of Public Health
                                                	 Division Health Professional Licensure

DEVALL, PATRICK
GOVERNOR

TIMOTHY P. MURRAY
LIEUTENANT GOVERNOR

JUDYANN BIGBY, MD
SECRETARY

JOHN AUERBACH
COMMISSIONER

Dear Ernest M. McGee:

     Board of Registration in Pharmacy
239 Causeway Street, Suite 500, 5th Floor
                  Boston, MA 02114
                     (800) 414-0168
http://www.mass.gov/dph/boards/pharmac          

  Re: Temporary Order of Summary Suspension effective July 19, 2011
     	  Proposed Voluntary Surrender Agreement
     	  Complaint Docket No. PHA-2009-0128/Pharmacist 
      	  License No. 20084 (Exp.12/31/10)

  Dear Mr. McGee:

  The Board of Registration in Pharmacy (Board) has voted to issue the enclosed Temporary Order of 
  Summary Suspension suspending any right you may have to renew your expired pharmacist license   
  based on your guilty plea on this date in U.S. District Court relating to conduct alleged in above-
  reference Board Complaint Docket No. PHA-2009-0128 (Complaint) concerning your practice as a 
  pharmacist while employed at Codman Square Pharmacy. You may request a hearing limited to the  
  necessity of the summary suspension by filing a written request with the Board by 5:00 p.m. on  
  Thursday, July 21, 2011 (address as noted above or by Fax 617 973 0980)

Also enclosed is a Voluntary Surrender Statement (two copies) for your consideration to be executed in   
resolution of the Complaint. If you desire to resolve the Complaint by surrendering your right to renew 
your pharmacist registration, please return one signed and dated Voluntary Surrender Statement to the 
Board.

  Very truly yours, 

  Stanley B. Walczyk, R. Ph., President

  Encls.

  First Class and Certified Mail 7009 1680 0000 6389 7651
  cc: Elliot M. Weinstein, Esq. w/Encls. by Fax 617 523 7554 and First Class Mail

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK ss.						BOARD OF REGISTRATION
								IN PHARMACY
In the Matter of 
ERNEST M. MCGEE., R.Ph.				DOCKET NO. PHA-2009-0128
Pharmacist No. 20084
Exp. 12/31/10

TEMPORARY ORDER OF SUMMARY SUSPENSION

In accordance with its broad grant of authority, pursuant to Massachusetts General Laws Chapter 112, Section 42A; 247 CMR 10.07 and 247 CMR 11.15, to decide when professional standards have been violated and to discipline any violations in order to promote the public health, safety and welfare (Strasnick v. Board of Registration in Pharmacy, 408 Mass. 654; 562 N.E. 2d 1333 (1990); Rosen v. Board of Registration in Medicine, Supreme Judicial Court, June 3, 1987), and following the withdrawal of a request for a hearing on the necessity of the summary suspension (letter of counsel dated May 11, 2011), the Board of Registration in Pharmacy (Board) ORDERS that:

Any right to renew the EXPIRED pharmacist registration of ERNEST MCGEE (Respondent), a pharmacist previously employed at CODMAN SQUARE PHARMACY (Pharmacy), formerly licensed to operate at 624-626 Washington Street in Dorchester, Massachusetts (Pharmacy No. 2692/Status: SUSPENDED, effective August 6, 2009, REVOKED, eff. July 13, 2010), be SUSPENDED, as of this date, pending a hearing, if requested, on the merits of the allegations relating to above-referenced Complaint Docket No. PHA-2009-0128 or other agreed upon disposition by the parties.

The Board has determined that based upon the information contained in that certain Information (Complaint) dated June 23, 2011 in the matter of United States of America v. Ernest McGee (U.S. District Court, District of Massachusetts, and Respondent’s guilty plea to related charges in U.S. District Court on July 19, 2011, the health, safety, and welfare of the public necessitates such summary action 

Respondent may request the Board to schedule a hearing limited to the necessity, of the summary action within seven days of the Board’s action by filing a written request for such hearing with the Board at 239 Causeway St., 5th Floor, Boston, MA 02114 (FAX 617 973 0980) not later than 5:00 p.m. on July 21, 2011.

								BOARD OF REGISTRATION
								IN PHARMACY

								Stanley B. Walczyk, R.Ph.
								President
								Effective Date: July 19, 2011
	
Decision No. 2632

First Class Mail and Certified Mail 7009 1680 0000 6389 7651
By FAX to Atty. Elliott M. Weinstein