Texas State Board of Pharmacy's Agressive Use of Investigators
Within the last two weeks my firm has signed on as clients two pharmacists who have encountered first-hand the aggressive tactics used by investigators at the Texas State Board of Pharmacy. This is something I feel all pharmacists and pharmacy technicians need to be aware of so they do not inadvertently damage themselves or accidently forfeit their right to contest the Board’s charges.
The day after I had sent in my letter of representation to the Pharmacy Board regarding the first client, the pharmacist contacted me by phone to tell me that a Board investigator was at her pharmacy asking her to sign a sworn statement admitting to the Board’s allegations. I asked her to transfer the phone to the investigator who stated that he was not aware that my client was represented by an attorney. He apologized and it was clear that he was genuinely unaware that the pharmacist was represented. Nonetheless had my client been unable to get in contact with me at that moment she may have made potentially harmful admissions.
The second client informed me that the evening before he retained me an investigator showed up at his home to essentially interrogate him and, again, have him sign a sworn statement admitting to the Board’s allegations. The investigator represented himself as both an employee of the Board and a licensed peace officer. He asked numerous loaded questions in his quest for additional allegations and also told the pharmacist how lucky he was that the Board did not turn his matter over to the local prosecutor. Thankfully, my client had the good sense not to tell the investigator anything or sign any statements.
These two experiences are unfortunately typical. Oftentimes the first time a pharmacist even learns that they are being scrutinized by the Board is when an investigator suddenly shows up at their home or place of employment demanding records and signed confessions. Duly intimidated by the Pharmacy Board’s strong-arm police tactics the licensee frequently signs a premade confession or discloses potentially damaging information without first consulting an attorney.
Make no mistake, despite any entreaties to the contrary the Board and its investigators are not your friends and they are not there to objectively assess the allegations to determine their merit; they are there to build the Board’s case against you and parse out info that can lead to additional allegations. I emphatically recommend that as soon as an investigator is at your door to politely decline talking with them or giving any statements and immediately contact an attorney with experience before the Texas State Board of Pharmacy. At that point your livelihood and reputation are plainly at stake. Do not try and go it alone and do not think you can “work things out” with the investigator.
Executive Director of Texas Medical Board Agrees to Overturn Revocations/Cancellations
Within the past three weeks my firm has represented two physicians whose licenses had been summarily revoked by the Texas Medical Board pursuant to alleged violations of their Agreed Orders. In both cases the Medical Board had failed to follow proper procedure and adhere to the terms of each physician’s Agreed Order prior to revoking their registrations.
The first case involved a physician on a long-standing monitoring order. The Automatic Revocation Order reneged his license on the stated bases that he had failed to continue timely payments with the Board’s drug testing company and he had submitted several “dilute negative” specimens. First and of most importance, this physician was never provided proper notice of the informal show compliance proceeding and accordingly never showed up at the hearing, directly resulting in the revocation. The notice of hearing had been sent to the physician’s old address despite the fact that he had previously filed the appropriate change of address form with his compliance officer.
Furthermore, the specific terms of his Agreed Order did not allow the Texas Medical Board to revoke his license for either late payments to the drug testing company or submitting dilute negative samples. In summary, not only did he not receive notice of the show compliance hearing, but the stated reasons for his revocation were illegal under his existing Board Order. Thankfully due to the quick intervention of my firm, the Executive Director of the Medical Board agreed to overturn the revocation and set the matter for a new show compliance proceeding. Unfortunately, my client had in the interim already lost his job and been subject to a public HIPDB report noting the revocation.
The second physician was revoked on the grounds that he had not kept up with his CME requirements. Again, this doctor was not given proper notice that the Medical Board was considering cancelling his registration until less than a month before the deadline date and moreover this was conveyed in an ambiguous letter discussing other matters. Understandably, the physician sent in a letter to the Board letting them know that he was presently enrolled in a Masters of Health Administration program and accordingly would be unable to complete the CME within such a short timeframe.
Apparently disregarding the letter, the Medical Board went ahead and cancelled his registration. The physician subsequently hired me and I was able to have the cancellation overturned through a letter to the Board’s Executive Director. The Board also agreed to give him additional time to complete the CME.
I think the experiences of these two clients demonstrate that timely intervention by counsel can make a huge difference and greatly mitigate the negative impact of an adverse Board action. Any physician facing a Board issue should seriously consider conferring with an experienced attorney so that they can head off such situations before they can harm their practice and reputation.
Board of Nursing Intimidation of Nurses Through Formal Charges
The Texas Board of Nursing continues to use tactics which arguably violate and abuse the due process protections guaranteed Texas nurses under the Federal and Texas State Constitutions. The Board’s tactics can put your employment and reputation in jeopardy without any opportunity to defend yourself.
This abuse occurs through the Board’s filing of formal charges without the corresponding docketing of those charges at the State Office of Administrative Hearings, thereby preventing licensees from either clearing their name or achieving a final resolution. To illustrate how the BON is strong-arming nurses, we must understand how a complaint about a nurse works its way through the administrative system to a potential hearing.
Complaints are submitted to the BON in writing and contain information about the nurse and of the pertinent facts or conduct. 22 Tex. Admin. Code § 213.13(a) (Tex. Bd. of Nursing, Complaint Investigation and Disposition). Not later than 30 days after a complaint is received, the BNE staff shall place a time line for completion, not to exceed one year (this is frequently ignored), in the investigative file and notify all parties of the complaint.
If a complaint is not resolved informally, the staff at the Texas Board of Nursing may commence disciplinary proceedings by filing formal charges. 22 TAC 213.15(a). This is where the BON can strong-arm unsuspecting RNs, LVNs and other licensed nurses: the formal charge will show up on your record when a potential or current employer attempts to verify your nursing license online at the Board of Nursing website. Furthermore, your employer or potential employer can call the Board of Nursing to discuss the content of the formal charge, oftentimes resulting in the employer’s decision to terminate the nurse or not hire a job applicant.
At this juncture, the nurse is stuck in limbo. His or her license has the stigma of a formal charge attached to it, often injuring the nurse’s ability to retain or find employment. This is where the time line for completion, mentioned above, comes into play. The time line is said not to exceed one year, but the Board of Nursing, while you have this formal charge attached to your license, can continually extend the timeline by “3-12” months. This can go well over the one year timeline proscribed by the statute. The Leichter Law Firm represents numerous nurses who have been in this situation for years and are still receiving letters informing them that the timeline for the investigation into their case has been extended another “3-12” months, with no apparent end in sight and no solution to the formal charges attached to their license.
How can this be resolved? Unfortunately, at present, the method for resolving such cases rests with the Texas Board of Nursing, and they have made no effort to reasonably settle these cases. The Texas Board of Nursing will often ask the nurse to simply sign an order agreeing to whatever punishment the Texas Board of Nursing deems appropriate. If the nurse refuses, the formal charges remain, and the case is supposed to move to an administrative hearing. But, the case cannot move from a formal charge to an administrative hearing unless the Texas Board of Nursing completes and files a Request to Docket Case form (and any other documents as required by statute) with the State Office of Administrative Hearings. For many licensees, the Texas Board of Nursing has simply not filed such a request.
Even a nurse who is represented by an attorney faces a tough situation in this scenario. In previous cases I have attempted to file discovery requests so that we could learn whether or not the Board can even prove up the case. In response, I always receive a curt letter from the Board stating that we have no present discovery rights as the case has not yet been docketed at SOAH. Thus the nurse remains in an arbitrary and bureaucratic nightmare where they are faced with formal charges and yet have no avenue to contest them until the Board deigns to set them at SOAH. The only possible recourse is file an action in District Court to try and compel the Board of Nursing to set the matters at SOAH, however, this is a costly and time-consuming process.
The real solution, of course, would be for the Board to change their policy and ensure that matters are docketed at SOAH within a reasonable time after the filing of formal charges. The Board has recently hired several new attorneys and this appears to have helped in the number of cases which are being set at SOAH. However, much room for improvement remains.
Recent Rule Changes at the Texas Medical Board
Recent rule changes by the Texas Medical Board will be taking effect on June 19th. Licensed doctors and licensed physicians in the state of Texas ought to be aware of these changes. The attorneys of the Leichter Law Office has the experience and expertise necessary to assist medical licensees or medical license applicants in these and other issues relating to your medical license.
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22 Tex. Admin. Code § 173.1(b)(1) (2009) (Tex. Med. Board, Profile Contents)
(a) The Texas Medical Board (the “board”) shall develop and make available to the public a comprehensive profile of each licensed physician electronically via the Internet or in paper format upon request.
(b) The profile of each licensed physician shall contain the following information listed in paragraphs (1) – (27) of thus subsection:
(1) full name as the physician is licensed;
(2) – (27) (No change.)
Subsection (b)(1) previously read “full name as the physician requests that it be published;” with this rule change in effect the physician’s name will be published as it reads on the license, not when the physician requests it be published.
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22 Tex. Admin. Code § 190.8(1)(L)(iii) (2009) (Tex. Med. Board, Violation Guidelines)
Notwithstanding the provisions of this subparagraph, establishing a professional relationship is not required for a physician to prescribe medications for sexually transmitted diseases for partners of the physician's established patient, if the physician determines that the patient may have been infected with a sexually transmitted disease.
This new subsection will be amended to the current § 190.8(1)(L). A physician need not establish a professional relationship with the partner of a patient to prescribe medications for STDs if the patient with whom the physician has a professional relationship has the STD. This new subsection seems to allow the physician greater flexibility in controlling the spread of STDs quickly and effectively.
Nevertheless, the Leichter Law Firm recommends being aware of the partner’s medical history and relationship with your patient in order to protect yourself and your license to practice in Texas.
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Whether registering your medical license with the Texas Medical Board, defending yourself in an investigation before the Texas Medical Board, or concerned that your medical license or practice might be in danger, you will need a competent and experienced medical license attorney to assist you. Going it alone against the Texas Medical Board risks your medical license and your livelihood. The attorneys at the Leichter Law Firm have the experience and expertise in dealing with the Texas Medical Board and assisting doctors and physicians in all of their medical licensure needs.
