A Texas pharmacist who is suspected of having a potential substance abuse or dependency problem or other mental health issue which could impact their ability to safely practice is almost always asked by the Texas State Board of Pharmacy or Professional Recovery Network (PRN) to undergo an evaluation with a mental health provider (MHP). This request is typically made in one of two contexts:
- A pharmacist has just been referred to PRN and is asked to undergo an evaluation to determine whether they suffer from an impairment issue, and, if so, what is the appropriate course of treatment; or
- The pharmacist has been invited to attend an informal conference with the Texas State Board of Pharmacy about a disciplinary issue and is also asked to complete a PRN-coordinated mental health evaluation prior to the scheduled conference.
In both instances the pharmacist should be wary of accepting and undergoing this process unassisted by legal counsel, particularly if the pharmacist has some doubt as to whether they suffer from an impairment or mental health issue. I have seen many, many pharmacists who have unwittingly undercut their own case by failing to hire an attorney until after they are evaluated by an MHP.
The potential pitfalls of this process are multifold. First, the pharmacist is always asked to see a mental health provider who is on PRN's pre-approved evaluator list. PRN's list is primarily composed of licensed chemical dependency counselors (LCDC) as, pursuant to their contract with the Pharmacy Board, PRN is required to pay for the evaluation and, as a lower level provider, an LCDC can charge a much lower rate than a forensic psychologist or psychiatrist.
Besides not possessing the same level of expertise as a physician or psychologist, it has been my experience that the LCDCs on PRN's list tend to repeatedly misdiagnose pharmacists with impairment issues they do not have. A classic case is a person with two alcohol related criminal offenses, such as two DWIs, which are multiple years apart. According to DSM-IV criteria, the near universally accepted gold standard for diagnosis in this area, this fact alone would not qualify the pharmacist for an alcohol abuse or dependency diagnosis. Yet, time and time again, my firm has been retained by a pharmacist who was improperly diagnosed based on stale criminal history or other criteria not recognized in addiction medicine.
Also an issue, most LCDC's are employed by or closely affiliated with a treatment center. Because of this, there is often a presumption on the part of the evaluator that the pharmacist must have a problem simply because they have been referred to their office. Additionally, the LCDC's connection to a treatment center creates an incentive to find some diagnosis in order to justify treatment.
Finally, many of the evaluators on the PRN's pre-approved list suffer from the perception, whether accurate or not, that in order to stay on the list and continue to receive referrals, they must find problems with the pharmacists sent to their office.
All of these factors combine to create a pool of pharmacists who are misdiagnosed with substance abuse or mental health issues they do not have. Once a pharmacist has been diagnosed with a problem they will at a minimum be required to enter into a five year monitoring agreement with PRN. If they refuse, PRN is required by law to refer their case to the Texas State Board of Pharmacy. Once the Pharmacy Board is involved, the Board's disciplinary policies mandate that the person be placed on a five-year Board Order which requires full PRN participation as well as workplace reporting and restrictions. In either scenario, the pharmacist will be required to regularly attend AA, abstain from alcohol and any other potentially addicting substances, and undergo expensive inpatient or outpatient treatment.
In most cases, such a poor outcome could have been avoided had the pharmacist hired an attorney prior to undergoing an evaluation with an MHP either by command of the Board or PRN. Our attorneys have years of experience working with both the Board and PRN and are familiar with evaluators on PRN's approved list. We have the knowledge necessary to collaborate with PRN to locate an evaluator who is fair and holds the expertise necessary for an individual case.
In matters involving allegations of impairment the selection of an appropriate evaluator is oftentimes the single most important point in the pharmacist's entire case. Once a pharmacist has received some form of impairment diagnosis, the damage is often irreparable. If you have been asked to undergo an evaluation by either PRN or the Board, it is absolutely crucial that you immediately contact an attorney familiar with both entities prior to moving forward.
In 2011, Courtney Bolin, LMSW, became the new Program Director of the Professional Recovery Network (PRN). Prior to assuming her duties as the new Program Director, Ms. Bolin had already worked for several years as a social worker / case manager with PRN. Since the start of her tenure, PRN has hired two new social workers, Ms. Emily Abel, LMSW, and Eden Folks, and instituted several notable changes in the program's operation.
For those unaware, the Professional Recovery Program is the official peer assistance program for the Texas State Board of Pharmacy, Texas State Board of Dental Examiners, Texas State Board of Veterinary Medical Examiners, and Texas Optometry Board. PRN accepts both third-party and self-referrals concerning licensed professionals who may be suffering from some kind of impairment issue, whether related to substance abuse or mental health.
If the person is determined to have an issue for which PRN can provide assistance, they will typically be referred to an appropriate expert for an evaluation and any treatment recommendations. Following this the licensee will be asked to sign a PRN participation agreement wherein they agree to follow-through with their treatment plan and conform with standard PRN monitoring conditions, such as drug and alcohol screening for a case involving substance abuse. So long as the individual complies with their contract, their participation in PRN remains confidential. Because of this, PRN referral and assistance can be an attractive option as it avoids the involvement of the professional's licensing board and the potential entry of a board order, which may be public.
In representing numerous pharmacists, dentists, veterinarians, and other licensed professionals, my firm has in the past conflicted with PRN when the client's and PRN's interests do not necessarily match. This has even involved contentious civil litigation with PRN resulting in a substantial award of attorney's fees and costs to one of our clients. Thankfully, under Ms. Bolin's tenure such disputes have been rare and both my office and PRN have almost always been able to work together towards the client's best interest. In addition to this general trend I have noticed several other developments which represent a positive direction for PRN participants.
For example, since assuming leadership of PRN, Ms. Bolin has instituted new protocols ensuring referred persons are better aware of how the PRN process works and the situations in which their case can be forwarded to their licensing board. In my opinion this had been a problem in the past as participants would contact PRN or even sign a contract under the misunderstanding that even if they elected to quit participating their case could not be referred to the board. Trust is integral to good recovery and a willingness to comply with treatment recommendations. Because of this I applaud PRN's upfront efforts to more clearly delineate boundaries and the limits of the program's confidentiality.
It has also been our experience as attorneys routinely representing pharmacists, dentists, and veterinarians before PRN and their respective boards, that Ms. Bolin is very willing to take a proactive approach and work with referrals and participants to ensure they are treated fairly and are not asked to comply with inappropriate treatment recommendations. This includes keeping an open ear to second opinions when the report and recommendations from the original evaluator are unreasonable or not reflective of objective data and prior treatment.
Finally, Ms. Bolin and other PRN personnel have been more ready to advocate on behalf of participants than was true in prior years. PRN has always claimed as one of its core principles a willingness to advocate on behalf of its participants, however, in my opinion such advocacy was often sacrificed to avoid confrontation with treatment providers or the Boards with which PRN contracts. As related above, recently PRN has been more involved in ensuring participants receive fair evaluations and treatment recommendations. This has also extended to other areas such as a recent case were PRN has been very helpful in advocating on behalf of a participant whose license is suspended in another state and all efforts at correcting this situation have been stonewalled.
I am encouraged by Ms. Bolin's stewardship and the fresh start it represents for the program. Hopefully PRN maintains their current direction as I feel it is better for participants and more conducive to maintaining their trust, ensuring good treatment outcomes, and assuring sustainable recovery and health.
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.
According to the Texas Board of Nursing’s Administrative Rules any nurse who has a diagnosis of chemical dependency or who otherwise has a history of abuse of controlled substances must demonstrate through “objective, verifiable evidence” that they have been sober for the past twelve months before they can be allowed to continue practicing licensed nursing. Title 22 Texas Administrative Code § 213.29 and the Board’s “Eligibility and Disciplinary Sanctions for Nurses with Substance Abuse, Misuse, Substance Dependency, or other Substance Use Disorder.” Normally, a nurse will establish that they have been sober throughout the past year by offering up AA logs, negative drug screens, an expert evaluation by an addiction specialist, and testimony from support group members, coworkers, and other intimate acquaintances. The idea is that with the evidence in hand, the Nursing Board will be able to verify the nurse’s sobriety date and see if this meets the twelve-month threshold.
Regrettably, it has been my recent experience serving as an attorney for such nurses that the Texas Board of Nursing is all too eager to brush aside such offers of proof and race to a full administrative hearing where they seek, contrary to their own rules and policy guidelines, a one-year suspension of the nurse’s license. In the cases I have been involved with, Texas Nursing Board Staff have repeatedly argued that a one year “timeout” is the appropriate sanction. Their idea is that during this year long timeout period, the licensee can work on their recovery and accumulate verifiable evidence of their sobriety. The problem is that the Board maintains that this timeout applies whether or not the nurse all ready has twelve months of verifiable sobriety. This is an incorrect statement of the law and is grossly unfair and unnecessary for nurses who have already been sober for a year or longer.
Another problem with the Board trial strategy in this area is that in the lead up time to a full SOAH hearing, they typically refuse to accept a chemically dependent nurse’s evidence of their sobriety date. In line with this any Agreed Order offered by the Board to settle the case fails to include a finding of fact setting forth the licensee’s date of sobriety. Inclusion of the sobriety date is absolutely crucial. This is the finding the nurse needs so that they can trace back twelve months of continuous sobriety. Otherwise when they later seek to lift any bar to their ability to actively practice nursing, the whole issue of when is their initial date of sobriety will have to be litigated all over again. The Board of Nursing will once again reject the nurse’s evidence of sobriety as insufficient and force the licensee to once again hire an attorney and take the matter all the way through to the State Office of Administrative Hearings.
Given the Texas Board of Nursing’s intransigence on this point, a nurse’s only real option is to pursue their case all the way to SOAH the first time around. This is the only way to have a finding of fact issued, in this case by an Administrative Law Judge, establishing their date of sobriety so that they will have a concrete point from which to trace their one-year of sobriety. This is a waste of taxpayer money and needlessly creates stress and drains the finances of the nurse. Simply put, the Board needs to follow their own administrative rules and policies.
As an attorney I usually advise my clients in this situation not to accept an Agreed Order that does not contain a sobriety date. Fighting the Board all the way through SOAH may be more expensive in the short run than simply signing the agreement, however, in the long run they will probably need to hire an attorney when they later attempt to reactive their license or lift any bar preventing them from practicing as a nurse. This is because they still need to establish their sobriety date so that they can demonstrate twelve months free from any chemical substances. Furthermore, if they decide to challenge the Board now, their current license will remain active and they will be able to continue working as a nurse while the disciplinary process runs its course. Because of the Board’s refusal to accept a sobriety date, by the time this process has run its course, the nurse may have already accumulated a full year of sobriety and therefore not suffer any down time.
I strongly recommend that any nurse’s facing this scenario contact an attorney with experience in administrative law and representing clients before the Texas Board of Nursing. They will be able to help you accumulate the evidence needed to demonstrate twelve months of continuous sobriety and be able to discuss with you the best options for protecting your license.
In recent years, I have witnessed an increase in the recreational use of dextromethorphan among Texas doctors. An ingredient found in many common cold medicines, dextromethorphan acts as an effective cough suppressant by operating as a narcotic analgesic thereby relieving upper respitory irritation. When administered at higher, non-therapeutic doses, however, the drug causes dissociative hallucinogenic effects that have been compared to those caused by ketamine and PCP.
At a lower recreational dose, “dex” can lead to a mild euphoria. At higher levels the effects include an intense euphoria, vivid imagination, and closed-eyed hallucinations. Taken to extreme levels the user will experience complete alterations in consciousness which can even extend to temporary psychosis. While physical addiction is rare, psychological addiction is likely, and long-term or intense use can cause permanent damage to chemical receptors in the brain.
Increased awareness of dextromethorphan abuse has caused most sellers of cough medicines containing the drug to move it behind the counter. This obstacle is less of a challenge to physicians who have ready access to prescription versions of the same medicines. One of the most troubling aspects of this trend is the fact that the drug screens used by the Texas Medical Board will not detect dextromethorphan. This in part probably explains its popularity among chemically dependent Texas doctors. While dextromethorphan is not currently included in the Controlled Substances Act this could easily change as awareness of its use as a recreational drug spreads.
Unfortunately, use of dextromethorphan and its attendant hallucinogenic effects present serious practice risks and potentially imperil patient safety. Licensees should also be aware that a positive drug screen is not needed for the Texas Medical Board to pursue disciplinary action. Many of the complaints commonly received by my firm consist of nothing more than an allegation that the doctor “seemed confused and out of it” or “like he was drunk” while on duty. It should also be obvious that the Board will vigorously pursue any allegation that a doctor is abusing their prescriptive authority to obtain drugs for recreational use.
Any doctor being investigated or prosecuted for dextromethorphan use should contact an attorney with experience before the Texas Medical Board so that they are aware of their options. A common course of action is to have the doctor evaluated by an independent expert in addiction to determine whether or not they are chemically dependent. If so, then self-referral to a quality drug rehabilitation center is often the best choice for both the doctor and for reaching a beneficial agreement with the TMB. As in all cases, disciplinary charges based on intemperate use and/or abuse of prescriptive authority have their own set of complex issues that is typically better handled by an attorney with experience before the Medical Board.
The Texas Peer Assistance Program for Nurses (TPAPN) has a long history of helping Texas nurses suffering from chemical dependency regain control over their lives and keep their license in the process. Nurses referred to TPAPN are able to confidentially undergo treatment and later return to nursing practice. Texas nurses should be aware of two new changes regarding the TPAPN program, one positive and one negative. For a description of TPAPN please see my law firm's web site or blog post from July 2007 entitled "What is TPAPN"
On the positive front, the TPAPN program has developed a new category of treatment named the Extended Evaluation Participation (EEP). To be eligible for the EEP program, the nurse must be involved in an isolated drug incident with no other history of substance abuse and, after professional evaluation, be found to have a low probability of chemical dependency. Participants are subject to one year of drug screening, with a minimum of 18 screens, and are allowed to continue work without any restrictions during this period. If there are no positive screens at the end of the year, the nurse is discharged from the program and their participation and the initial incident remain confidential. Yet, if there is a positive screen or the nurse fails to adhere to the screening program, the participant will be referred to the Texas Board of Nurse Examiners. This new category of treatment program should prove beneficial to the class of nurses who become involved in an isolated incident involving a chemical substance, maybe even inadvertently, and also are not actively abusing that substance and show a low risk of doing so in the future.
Unfortunately, this step in the right direction is undermined by a change in the confidentiality provisions of the standard TPAPN treatment program. Traditionally, nurses whose practice was impaired by substance abuse or mental illness could be either referred by a third party or self-referred directly to TPAPN without the involvement of the Board of Nurse Examiners. Under the new regime, however, the Board must be notified of any referral that involves a practice violation, such as diverting medication or practicing while impaired.
While it is understandable that the Nursing Board would want to be apprised of instances of impaired practice, I fear this change could have an overall negative impact on Texas nursing. Nurses suffering from mental illness or a chemical dependency will likely be more reluctant to self-refer to TPAPN once they know that the Nursing Board and their license will be involved. This may lead to more nurses putting off seeking help until their situation and the potential well-being of their patients become much worse. The old confidentiality provision was specifically, and wisely I think, designed to promote self-referrals to treatment. Now, nurses will have to be more careful in deciding whether to report. Unless they qualify for the new Extended Evaluation Program, the threat to their license will be much more serious.
Functioning under the authority of Chapter 467 of the Texas Health and Safety Code, the Professional Recovery Network (PRN) provides intervention, treatment & continued support and advocacy to dentist’s suffering from chemical dependency and/or mental illness with the goal of integrating them back into professional practice. Due to its confidential nature, the PRN offers an incentive for impaired dentists to commit to a program of recovery thereby avoiding potential harm to the public or themselves.
Entry to the program begins with a report to PRN. Concerned colleagues, friends, and family may report the dentist to PRN if they have information relating to the professional’s impairment due to mental illness or chemical dependency. In fact, a license holder who is required to report knowledge of an impaired professional satisfies that mandate if they refer the dentist to PRN. Frequently the dentist will self-refer themselves to the program, an avenue which is highly encouraged and can lessen the chance of a later disciplinary sanction. The Texas State Board of Dental Examiners also has the option to refer impaired professionals in lieu of a disciplinary action.
Once PRN receives a report they will contact the dentist and send them to an evaluation by a mental health professional. After evaluation, the license holder will sign a Recovery Support Agreement with the program committing themselves to treatment and a continued aftercare plan of recovery and also authorizing PRN to disclose their records if they drop out of the program or otherwise fail to adhere to their contract. This Agreement will outline the proposed treatment and incorporate recommendations made by the evaluator. By entering into the Recovery Agreement, the dentist consents to maintaining contact with the PRN Staff and an assigned mentor, writing quarterly recovery reports, and, if appropriate, undergoing random drug screens. The pharmacist’s mentor, who is a dentist with either a long history of sobriety or extensive experience in a twelve-step or similar recovery program, is there to support, advise, and advocate for the professional throughout treatment.
As long as the dentist adheres to the Recovery Support Agreement their treatment should remain confidential and formal disciplinary proceedings may be avoided. The Board may only disclose the dentist’s treatment and the nature of their impairment in a subsequent disciplinary hearing, to a state licensing body in another jurisdiction, or in response to a court order. If the Board determines that the dentist’s impairment is to such a level that it poses a potential danger to the public, they can only disclose that the professional’s license has been suspended, probated, or revoked, not the specific nature of the impairment. Yet, any disciplinary order entered by the Board pursuant to such a report will only remain confidential if the licensee agrees to the order and there is no previous or pending action, complaint, or investigation concerning the licensee involving malpractice, injury, or harm to any member of the public.
If the dentist fails to comply with their Recovery Support Agreement, then the initial report and the nature of the dentist’s impairment / intemperate use may become public and the Board may initiate a disciplinary action. PRN may also disclose the report to the Board if the licensee refuses to see a mental evaluator or undergo treatment. In these cases the State Board of Dental Examiners is likely to pursue disciplinary action as the problem will be seen as not being taken seriously or so advanced that additional intervention and consequences are needed. Even if the dentist is not actually chemically dependent or suffering from a mental health problem, they are not in a credible position to argue that point. Here, hiring an attorney becomes a necessity as the penalties imposed by the Board can be severe. Moreover, a lawyer experienced in professional licensing / administrative law and recovery from chemical dependency can ensure that the dentist doesn’t make any mistakes or admissions that can create obstacles to their recovery and future practice..More information on the Professional Recovery Network can be found at the PRN section of the TexasPharmacy Association’s website: (www.texaspharmacy.org).