Legal issues in pharmacy education: making the case for engaging university counsel.

To the Editor. In the past 30 years, new laws and legal liabilities have emerged that have dramatically changed the landscape of the educational environment. No longer is it advisable to act and ask questions later about the potential impact or consequences of a decision. By necessity, administrative actions must be based on sound legal advice when significant decisions are contemplated. Truthfully, few administrative decisions in higher education lack legal ramifications. What legal issues face pharmacy administrators and faculty today? Sexual harassment, student privacy, wrongful termination, discrimination, interviewing, disabilities, workers' compensation, employment contracts, employee handbooks, student rights, academic integrity, intellectual property and due process are but a few areas of legal concern. While administrators and educators are not intentionally unaware of legal issues, few may recognize the importance of a decision until a complaint is filed. Why should faculty members and administrators be concerned about legal issues? One legal misstep, one failure to consider the legal consequences in a decision, or one lapse in judgment could have a dramatic and lasting impression on the university, school, and/or career of the employee. That is why many universities have enlarged their general counsel team to be able to provide adequate and clear legal direction. Take, for example, the University of Florida. Since 1987, the legal office has gone from 5 attorneys to 11.1 It is not uncommon for attorneys employed at a university to become specialized in unique areas of law in order to address critical issues that regularly appear in higher education. Does the pharmacy school have many of the same legal concerns or needs as the overall university? Absolutely. In some ways the pharmacy program will have added concerns. Take for example Health Insurance Portability and Accountability Act (HIPAA). As students are placed in health care facilities, concerns are raised regarding both the privacy and security of patient information. Because of HIPAA, health care institutions may now impose certain contractual obligations, known as business associate agreements, on pharmacy programs in order for the school to place students at those sites. What are the obligations of the pharmacy school regarding these contracts? Does the university have obligations? Will there be short- or long-term obligations from such an agreement? Will liability attach to the administrator or faculty member for student breach of protected health information? Obviously many questions of a legal nature are raised with such an agreement. With so many questions regarding liability, it is possible to become paralyzed with decisional fear, afraid to go right or left, up or down. Generals do not motivate or lead an army with indecision and neither will pharmacy school administrators. In such a litigation-prone environment, one must find a way to move with confidence. In many cases, it is the university attorney who can provide that needed assurance and direction. But this counsel must be sought out. An administrator or faculty member should not be reluctant to inquire of legal concerns. Questions regarding the impact of an action should be asked and done so in a timely fashion, prior to reaching a decision or taking action. While inquiry of counsel may prevent some legal problems, no amount of legal counsel can reduce the risk of litigation to zero. When dealing with a decision that negatively affects an individual or group, perceived harm may result that involves litigation even with advice of counsel. Nevertheless, we cannot let the fear of litigation, intimidation by plaintiff's counsel, or the prospect of legal costs stop us from leading, acting, or doing what we believe is right. Education as a profession and a business has risks—always has and always will. Are there any additional options administrators or faculty members can use to address legal issues? Legal counsel could be hired by the college or school on an as needed basis. The problem with such employment is while one attorney may be very knowledgeable with sexual harassment claims, the same attorney may know very little about the Family Education Rights and Privacy Act. Hence, you end up with a revolving door of counsel. Higher education attorneys frequently are affiliated with the National Association of College and University Attorneys, which offers a broad range of services that help members to identify, analyze, resolve, and prevent legal problems on campus. This organization allows member attorneys to share knowledge and work product on current legal issues for the benefit of the colleges and universities they serve. These attorneys truly are your experts, your go-to counsel for legal concerns. Call them, confide in them and trust them with your legal issues. It's the smart thing to do. Virgil Van Dusen, JD School of Pharmacy, Texas Tech University