PRN and the Texas State Board of Pharmacy: The Limitations of Confidentiality
As many pharmacists are aware, the Professional Recovery Network (PRN) is a peer assistance program designed to aid licensees seeking treatment and other assistance with problems related to alcohol and substance abuse as well as certain mental illnesses. In this role PRN can play a valuable part in helping troubled pharmacists receive the counseling and intervention they need to regain control over their lives while continuing to exercise their skills and expertise through their practice.
While PRN is commendable in this regard, a recurrent problem I encounter in representing pharmacists before the Texas State Board of Pharmacy is that PRN does not fully disclose upfront the significant limitations in their confidentiality protections and their captured role vis a vis the Pharmacy Board. As an attorney, I frequently see this lack of full disclosure on the part of PRN result in significant harm to a pharmacist’s ability to defend themselves in any related Board disciplinary action avoid the imposition of a severe and prolonged public disciplinary orders.
There are two primary ways in which pharmacists can become involved with PRN: These are through a referral, either by the individual themselves or a third party, or through a disciplinary investigation initiated by the Texas State Board of Pharmacy. In either case, PRN will take an initial history and likely perform an in-house assessment on the pharmacist licensee in addition to having the individual evaluated by an outside expert. Following this PRN, will present the pharmacist with a contract asking them to agree to participate for a number of years in a list of recovery activities and other requirements. This typically includes agreeing to complete an intensive inpatient or outpatient recovery program, regular attendance of AA or other support group meetings, submission to randomized drug testing, and potentially other restrictions focused on their ability to function as a PIC or working without being unsupervised by another pharmacist. Another mandated requirement is a consent form allowing PRN to turn the pharmacist’s entire file over to the Pharmacy Board in the event they fail to comply with any aspect of the agreement.
The fundamental problem is that up until this point pharmacists (even self-referrals) are not told that if they, for whatever reason, decide not to enter into the PRN agreement then PRN will forward their full file to the Pharmacy Board. Based on the stories of many of my clients, prior to this juncture licensees are assured that everything they tell PRN is confidential. As seen above, this is seriously misleading and, in my opinion, arguably illegal.
By this point the pharmacist has likely made numerous statements and admissions to PRN which will be turned over to the Texas State Board of Pharmacy and used as evidence in any disciplinary action. The licensee has probably also undergone an assessment with an addiction specialist or other mental health professional. This expert’s report will likewise be forwarded to the Board. With the receipt of the above damaging admissions and other evidence, which likely would not have been made had the pharmacist been aware that PRN does not, in fact, strictly maintain their confidentiality, the Board’s case is already fully formed and ready to prosecute. The licensee’s legal options at this time are likely very circumscribed even though this is often the first time they may consider contacting an attorney. With little room to maneuver, the pharmacist can essentially be forced to sign a public and long-term Agreed Order that significantly restricts their ability to function as an ongoing concern.
What pharmacist’s need to understand is that PRN is the Texas State Board of Pharmacy’s statutory peer assistance program under the Health and Safety Code and as such can function as an arm of the Board in disciplinary actions. The first and primary consequence of this captured status is the disclosure of supposedly confidential information to the Board. In the future I hope to write about other issues with this conflicting mandate and the way it can subvert PRN’s ostensible role as an agency set-up to encourage troubled pharmacists to seek need treatment and intervention.
The bottom-line is that every pharmacist who is dealing with or considering contacting PRN needs to be aware that any information or statements provided by them can be, and often is, turned over to the Pharmacy Board. Consulting with a Texas pharmacy license attorney either prior to or after you have made contact with PRN is likely a prudent step to ensure you aren’t unnecessarily jeopardizing your ability to continue practicing as a pharmacist..
Texas State Board of Pharmacy Vigorously Pursues New Sanction Guidelines for Criminal Offenses
In the past year the Texas State Board of Pharmacy has started attempting to strictly enforce their recent amendments to the Board’s administrative rules related to punishment for criminal offenses. These rules prescribe certain standard disciplinary sanctions for a wide-ranging list of specific offenses. Pharmacists with either a criminal record or a pending criminal case should take note as the sanctions involved are generally quite severe and can include revocation of a licensee’s registration by the Pharmacy Board.
For example, according to the guidelines a pharmacist who is convicted or placed on deferred adjudication/probation for a felony drug-related offense under Chapter 481 or 483 of the Health and Safety Code related to fraud, or the manufacture, delivery, theft, or possession with intent to deliver of drugs is subject to the denial or revocation of their pharmacist license until 20 years after the date of disposition. Even at the twenty year mark, the guidelines state the Texas State Board of Pharmacy’s intent to place the pharmacist on a five year probationary order.
For those pharmacists convicted or placed on deferred adjudication for the felony possession of drugs, the guidelines state that the Board will deny, revoke, or suspend the professional’s license if they are still on probation. Likewise, if the pharmacist is not on probation but it has been five or less years since the date of disposition, then they are eligible for a five year probationary order but only if they have first been evaluated by an addiction specialist who opines that they are safe to continue practicing pharmacy. Even if it has been over twenty years since the date of disposition, the TSBP still wants to place the pharmacist on a one year probationary order. Of additional note is that the guidelines apply essentially the same set of penalties to a pharmacist convicted or placed on deferred adjudication for misdemeanor possession.
It has been my experience as an attorney that the Texas State Board of Pharmacy tries to strictly adhere to these guidelines at the informal stage of the investigatory process only to become somewhat more receptive to mitigating evidence and other factors once a case has been filed at SOAH. Unfortunately, I have seen many pro se or poorly represented pharmacists accept the Board’s settlement offer, however harsh, at the informal stage out of sense that nothing better is possible.
Legally speaking, the TSBP’s sanction guidelines are only just that: guidelines. Although an Administrative Law Judge will give the guidelines some deference at a formal administrative hearing, Pharmacy Board attorneys are still required to show that under the specific factors present in that case, the requested sanction is warranted. On the flipside, it is the burden of the pharmacist and their attorney to draw out the mitigating factors and demonstrate why a lesser sanction is in order. This necessarily demands an intimate and working knowledge of the rest of the Pharmacy Board’s rules, the Texas Pharmacy Act, and other pertinent sections of the Texas Occupations Code, including Chapter 53, as to first, what are the relevant mitigating factors and second, how to get them into evidence.
Every pharmacist with a criminal record or a pending criminal case should be aware of the Texas State Board of Pharmacy’s new sanction policies. If you are in such a situation I strongly advise that you contact an attorney experienced in administrative law and representation before the Texas State Board of Pharmacy to discuss possible outcomes and preemptive courses of action.
Texas Medical Board Moves Away from Rehabilitation Orders with Adoption of Texas Physician Health Program
Currently, physicians and physician assistants with a history of substance abuse, mental illness, or other medical conditions which could affect their ability to safely practice medicine have been eligible to receive a rehabilitation order from the Texas Medical Board. Pursuant to a set of specific criteria, physicians and PA’s with such issues are also frequently able to have such orders be confidential from the public and colleagues.
In line with general national trends in regards to medical licensing, this current arrangement is set for a major change next year due to the passage of Senate Bill No. 292 by the Texas Legislature. This bill adds Section 167 to the Medical Practice Act thereby establishing the Texas Physician Health Program (TPHP) as a replacement for the old regime of rehabilitation orders administered and monitored through the Medical Board. Somewhat similar to the Professional Recovery Network of the Texas State Board of Pharmacy and Texas Dental Board, the Texas Physician Health Program is designed to become the first stop for impaired and ill physicians. Like the older rehabilitation order system, the Physician Health Program would be directed towards impaired and mentally ill physicians, although it would still also cover other licensees with rarer medical conditions which could affect their safe practice.
Once the TPHP springs into existence on January 1st, 2010, a physician can now be referred into the Physician Health Program in lieu of an investigation and disciplinary action by the Medical Board. Virtually anyone can refer a physician into the Program, including the Board, a hospital, another physician, a physician health and rehabilitation committee, or a concerned member of the public. Importantly the new law also notes that the Physician Health Program is not allowed to accept a referral which also involves a violation of the standard of care as a result of the use of drugs or alcohol or a boundary violation with a patient or their family. Also significant, the Medical Board now has the authority to make the granting of an initial license contingent on the physician’s agreement to enroll and participate in TPHP.
Similar to the current rehabilitation orders, a referral to TPHP and participation therein remains completely confidential unless the physician or physician assistant leaves the program, fails to adhere to their participation agreement, or otherwise is determined to pose a risk to patient safety by Program Staff. In such an event, the Physician Health Program will forward the licensee’s file to the Medical Board and the TMB will likely open a disciplinary investigation.
What is still left unclear is the process when a licensee is referred by a non-Board individual to the Physician Health Program for an impairment or mental health issue that does not involve a standard of care violation and that physician decides not to enroll in the Program. It has been my experience serving as an attorney in cases involving PRN and the Board of Nursing’s TPAPN program that the peer assistance entity is then required to forward the matter to the Board.
In the same vein, it is also unclear as to what extent the physician and physician assistant will be notified that they can hire an attorney to represent them before the Texas Physician Health Program. As it stands now, basic due process concerns require that the Medical Board inform physicians of their right to legal representation whenever they open an investigation. This is a potential issue as based on my dealings with PRN and TPAPN, a peer assistance program like TPHP, while having nothing but good intentions, is unfortunately often beholden to their governing Board. In such situations the threat is that they could become a mere instrument of the Board collecting potential damaging evidence and admissions from the physician while acting under the guise of being an independent entity.
Nevertheless, I am cautiously optimistic as I believe if run well, the Texas Physician Health Program has the potential to be a great resource for impaired and mentally ill physicians and consequently their patients and the public at large. It remains to be seen, however, how the Program performs once it launches into action at the start of the new year.
