Texas State Board of Pharmacy's Ability to Impose Discipline for Violations of Other States' Law

 

Like most health licensing boards, the Texas State Board of Pharmacy possesses extensive authority to discipline pharmacists and pharmacies for violations of their enabling statute, the Texas Pharmacy Act. This includes criminal matters, negligent practice, fraud and deceit, suspected substance abuse/dependency, and anything the Board determines falls within the broad and ill-defined ambit of unprofessional conduct. Unlike most Texas medical licensing boards, however, the Pharmacy Board is also authorized to discipline pharmacists for violating another state's law pertaining to drugs or the practice of pharmacy. This grant of jurisdiction is expansive and raises unique regulatory pitfalls for Texas pharmacists whose practice reaches into other states or who hold licenses in multiple jurisdictions.

Normally, before a Texas licensing board can impose discipline on a licensee for violations of another state's law, the licensing board in the subject jurisdiction must have already entered a disciplinary order in their state. In this event, the Texas board, including the Pharmacy Board, can then discipline the licensed professional in Texas through their reciprocal discipline statute. Through reciprocal discipline the Pharmacy Board need only present the foreign order and is not required to separately prove up the underlying allegations. The same almost always holds true in any other states where the pharmacist or medical professional is licensed. This is one of the primary problems facing a Texas medical professional holding licensure in multiple states: an order in one state can cause a cascade effect of similar disciplinary actions in the other jurisdictions were they are licensed. 

The Pharmacy Board's disciplinary statutes go even further, however, and authorize discipline for a violation of another state's laws even in the absence of any action by the other state. As an example, my firm recently represented a compounding pharmacy located in Texas which sold medications to practitioners located throughout the country. This pharmacy, which initially was not licensed in any other jurisdiction, was investigated and subsequently disciplined by the Texas Pharmacy Board due to their lack of the proper non-resident pharmacy permits required in many of these other states. This was despite the fact none of these other states had taken any action against the pharmacy nor were there any indications they planned to do so even after my client had made them aware they had ostensibly been in violation of their regulations. The pharmacy has now been subjected to a disciplinary order in Texas which it will need to report to all the other states in which it has or will soon be licensed. The end result could easily be a series of orders and fines in other jurisdictions pursuant to each state's reciprocal discipline statute. This is all because Texas elected to punish this pharmacy due to its failure to adhere to the law in other states even when such states had declined to impose discipline.

As can be seen above, this far-reaching grant of authority permits the Texas Pharmacy Board to essentially be the enforcer of other state's law and can have serious consequences to Texas pharmacists and pharmacies. Every licensee actively or merely planning to conduct business in another state would be well advised to ensure adherence to the other jurisdiction's laws pertaining to drugs and pharmacy. At a minimum this should involve consulting with an attorney to investigate whether licensing or out-of-state permitting is required by the other state. Failure to do so can lead to an otherwise avoidable disciplinary order in Texas, likely a significant impediment to the continued expansion of your business.

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