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.
What is Ethylglucuronide -EtG Testing?
Ethyl Glucuronide (EtG) is a metabolite created by the body following alcohol consumption. Testing for this metabolite, typically via a urine sample, has become increasingly prevalent in the United States following its initial approval and use in Europe especially by agencies concerned with monitoring an individual for any relapse or return to active drinking. Many favor EtG sampling because it is a “direct” test for alcohol consumption in contrast to older, more traditional tests like Gamma Glutamyl Transferase or Carbohydrate-Deficient Transferrin which look for indirect signs of alcohol use such as liver damage. Further, while older tests generally only become positive following heavy alcohol use, EtG can be present in the urine after only a single drink. Moreover, EtG remains in the body and is detectable in urine three to five days after consumption
Unfortunately, EtG testing has several serious short-comings that limit its viability as an stand-alone objective marker of recent alcohol consumption and relapse. In the area of medical testing, a test is characterized by two qualities: sensitivity and specificity. Sensitivity measures the ability of the test to correctly identify those individuals who do have the condition of interest, here relapse, while specificity measures the ability of the test to correctly identify those persons who do not have the condition of interest. EtG testing has a high sensitivity, that is it has a high probability of correctly identifying as positive an individual who has recently relapsed. However, it also has a low specificity, that is it has a high probability of showing as positive a person who has not recently consumed alcoholic beverages. For example, research has shown that use of everyday items such as bug spray, mouth wash, various over-the-counter medicines, and hand sanitizer can produce positive results. Additionally, without further research, testing facilities have been unable to arrive at a consensus on the level of EtG that should be considered positive for a relapse. The high level of false positives seriously undercuts its status as a viable test for relapse and can easily lend itself to abuse by monitoring agencies such as the Texas Medical Board or the Texas Board of Nursing (Formerly known as the Texas Board of Nurse Examiners).
In fact, EtG’s failings have led the US Department of Health and Human Services to advise cautious interpretation of test results and have expressly stated that use of EtG “is not warranted as a stand-alone confirmation of relapse...” Likewise, Dr. Gegory Skipper, a pioneer and continued advocate of EtG testing, has counseled monitoring agencies that a positive test could very well be the result of incidental exposure to alcohol. These failings readily lead to the test’s misuse by Examining Board’s & Board Staff resulting in a plethora of unwarranted and unfair disciplinary action against their respective licensees.
EtG testing can be an excellent tool to help detect a return to active drinking / addiction, but its shortcomings must be adequately considered. Properly utilized, it affords a compliance officer or State licensing agency an opportunity to confront and question someone about their positive test and specifically inquire as to their program of recovery. Oftentimes a relapse is admitted and can be dealt with swiftly and appropriately. However, if relapse is denied and the licensee’s program appears otherwise strong, the EtG test in and of itself may not provide enough ammunition to warrant disciplinary action.
