In the past year-and-a-half there have been several changes to the Texas Peer Assistance Program for Nurses (TPAPN). First, the length of participation has been increased from two years to three years for RNs and LVNs and three to five years for nurse practitioners and CRNAs. This change brings TPAPN more in line with the other official peer assistance programs for health care professionals in Texas such as the Texas Physician Health Program and Professional Recovery Network.
Another important change has been the Board’s move towards offering confidential TPAPN orders in certain cases. Previously, the Board had the option to either refer a nurse to TPAPN directly or enter a public order requiring the nurse to enroll. For cases raising moderate to severe public safety concerns or where the nurse had previously participated in TPAPN, the Board was highly unlikely to agree to a TPAPN referral without a public order. Now such cases can be settled through a non-public order accomplishing the same result. This is a good option in many cases as it allows the nurse to avoid a public order which would follow them for the rest of their careers.
More recently, TPAPN has initiated a new program for nurses with marginal mental health issues comparable to the Extended Evaluation Program (EEP) available to nurses who may have misused a mind-altering substance but lack a DSM-V substance abuse or chemical dependency diagnosis. Like EEP, the new mental health track is a one year commitment, confidential, and not considered to be disciplinary. Typically the participant is only required to regularly meet with their mental health provider who is expected to supply periodic status reports to TPAPN. My experience thus far has been that clients with minor mental health issues or diagnoses in long-term remission are most likely to be accepted.Given these new developments it is more important than ever for a nurse to contact an experienced attorney to discuss their options if they have been asked or are considering participation in TPAPN. The changes outlined above offer new possibilities for resolution which were not previously available. It takes a lawyer familiar with the Board and TPAPN to know what might be available to a nurse and how to navigate the system to achieve the best result. The increased length of the standard TPAPN contract makes it all the more important for a nurse to seek knowledgeable counsel rather than proceed on their own.
Since its inception several years ago, the Texas Physician Health Program has provided a valuable option for physicians suffering from chemical dependency, serious mental illness, or physical impairment. For appropriate Texas physicians, the Physician Health Program (also known by its acronym “PHP”) can help a practitioner set up a structured recovery or monitoring program based on recommendations by qualified medical and mental health professionals. Additionally, in most instances participation in PHP is confidential and will not be reportable to the National Practitioner Databank, hospitals, insurance networks, or other credentialing entities.
Unfortunately, my firm has observed an increasing number of Texas physicians referred to PHP by the Texas Medical Board for marginal issues. This includes physicians with a single DWI conviction, long stable mental health conditions, and physical conditions unlikely to affect their practice. Such a physician can quickly find themselves asked to sign a long-term participation agreement with PHP that imposes restrictions on their practice and onerous monitoring conditions. This situation is tragic as in many instances it is possible to obtain a dismissal if the physician hires an attorney and allows the Board to review their case.
A common scenario begins with a physician fulfilling their duty to self-report a first-time DWI or Public Intoxication conviction to the Texas Medical Board. As a follow-up, the physician will often receive a letter from the TMB stating the Board is referring their case to the Physician Health Program for evaluation in lieu of an investigation or possible disciplinary action. The physician is then typically contacted by PHP and asked to set up a meeting with the program director, also a physician, at their office in Austin, Texas. Out of an abundance of caution, PHP will then usually ask the physician to sign a participation agreement with or without further evaluation or treatment. At this juncture, many physicians will enter into the agreement out of a fear of Board action even though their case would likely be dismissed by the Board at an informal conference.
My firm has represented many physicians in the same and similar situations and, through skillful representation before the Medical Board, obtained a dismissal at or before an informal conference. If the issue is marginal, not supported by a diagnosis, or is an existing diagnosis in long-term remission, it is often possible to put together appropriate evidence and expert opinion, present this to the TMB, and convince the Board to dismiss the case without taking any action.
The Board’s decision to refer a case to the Physician Health Program is usually reflexive and done prior to any real review of the physician’s case and circumstances. Effective advocacy by an attorney familiar with the Board’s process can allow a physician with a marginal issue to avoid both discipline by the Board or participation in PHP. Any physician finding themselves in this type of situation should contact an attorney to discuss their options. Evaluation and participation in the Texas Physician Health Program may be inappropriate and unnecessary.
Starting September 1st, 2013, the Texas Peer Assistance Program for Nurses (TPAPN) will significantly increase the length of their standard monitoring contracts. Previously an RN or LVN participant could expect to sign a two-year participation agreement while an Advanced Practice Nurse or CRNA would be asked to participate for three years. RN/LVN's and APN/CRNA's will now need to participate for three and five years, respectively. The new change applies to both nurses who enter TPAPN with or without an accompanying Board Order.
This policy change is probably meant to bring TPAPN more in line with the monitoring programs used by other Texas healthcare licensing agencies. For example, the Professional Recovery Network, which serves as the official peer assistance program for the Texas Pharmacy, Dental, and Veterinary Boards normally asks its participants to sign a five-year agreement. The Texas Physician Health Program also frequently makes use of a five-year agreement, although this can be much longer depending on the case.
While it is understandable why the Texas Board of Nursing would want to increase the standard timeframe for TPAPN participation, I have concerns as to how effective this change will be without corresponding reform of the TPAPN process. My firm has represented hundreds of nurses who have participated in TPAPN both with and without a corresponding Board Order. Many of these nurses have ended up in TPAPN even though they do not have a qualifying substance abuse, chemical dependency, or mental health issue. Usually this is due to the nurse believing they have no other option to retain their license and/or avoid action by the Board. This is oftentimes incorrect and our firm has helped numerous nurses achieve a better result.
This being said, for many nurses participation in TPAPN is a good option. TPAPN does provide a level of structure and direction which can be helpful to someone who is new to sobriety and just learning the tools necessary to remain abstinent. Ideally, this should be accompanied by a supportive and non-punitive atmosphere designed to assist this process. TPAPN's goal is, and should be, assisting nurses to become and stay sober while monitoring this process through objective indicators such as drug and alcohol screening and regular reports from employers and medical/mental health providers. Unfortunately, it has been my experience that many of TPAPN's rules and policies are counterproductive to these goals, lead to unnecessary referrals to the Board, and discourage potential participants from enrolling in the program.
Flaws with TPAPN include its policy of refusing to allow a participant to work until they have been cleared by an evaluator and passed a drug and alcohol screen. While sometimes this makes sense, oftentimes it does not as the nurse is already sober and may have been so for some time. This requirement frequently results in the nurse losing their job which significantly undermines their ability to successfully participate both from a sobriety, financial, and mental health standpoint.TPAPN also prohibits its participants from taking any medication that is potentially abusable even if it is medically indicated, validly prescribed, and completely unrelated to the reason for their participation. For example, a nurse who enrolls in TPAPN due to a history of alcohol abuse but who also has a longstanding and well documented chronic pain syndrome will be asked to discontinue all narcotics. A nurse may also be forced to discontinue psychiatric medications even though these are medically indicated and beneficial. This rule automatically disqualifies a whole range of potential participants who would otherwise be good candidates and can make compliance for existing participants extremely difficult.
This policy also causes significant hardship for participants who develop a new medical condition while enrolled in TPAPN. As an example, a previous client of the firm was discharged from TPAPN after repeatedly testing positive for narcotics. The reason for the positive tests were the client's periodic trips to the Emergency Room when he would pass a kidney stone and be given a short-term prescription to treat the accompanying severe pain. Each time the reason and prescription for the medication were clearly documented and not in dispute; However, in each instance the nurse was pulled away from work by TPAPN, often for more than a week, until he could provide a negative urine screen. He was further warned repeated instances could result in him being ejected or asked to restart the program. Not surprisingly, this is eventually exactly what occurred.
I see no reason why the above scenario should occur. It makes no sense from a sobriety perspective, is cruel to the participant, and places an unnecessary burden on the Nursing Board who is then forced to take on the case. Both the Professional Recovery Network and Physician Health Program allow participants to receive potentially addictive medication so long as it is medically indicated and documentation is promptly provided. In appropriate cases, they may require a consult with an addictionologist or other qualified professional to assess and monitor the need for such medication, but the decision is left to medical professionals, not a blanket policy.
A reform of TPAPN's policies and process to allow greater discretion on a case-by-case basis would greatly improve the program's effectiveness and success rate. It should emulate the more flexible approaches of its fellow monitoring programs in Texas, particularly as it starts to model the length of their participation agreements. Absent some of these reforms, I foresee the expanded participation window only compounding existing problems and increasing the number of nurses who fail to complete their agreements.As emphasized repeatedly throughout this blog, a nurse who has been referred to TPAPN, or who is being referred to the Board by TPAPN, should contact an attorney for a consult. Many nurses aren't aware there may be alternative options or, in the event of a Board referral, the best way to defend themselves and minimize any impact on their ability to practice. An experienced Texas Board of Nursing attorney should be able to discuss these issues and help you decide if it makes sense to retain a lawyer to defend your interests.
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.
When confronted with allegations of drug diversion or intemperate use, an employer will frequently present a nurse with a choice: either accept a referral into TPAPN or face a report to the Texas Board of Nursing. For a nurse who actually suffers from a substance abuse or chemical dependency diagnosis, acceptance of a referral toTPAPN may be a wise first step towards recovery. Nurses who do not believe they are an appropriate candidate for TPAPN, however, may want to give pause prior to pursuing that route as the restrictions and conditions imposed on a participant are onerous and will affect, sometimes drastically, their ability to continue practicing in their present capacity.
This is doubly so for Advanced Practice Nurses such as Certified Nurse Anesthetists and Nurse Practitioners. At a minimum both CRNA’s and Nurse Practitioner’s will be precluded from practicing in their respective fields for one year. Moreover, the TPAPN participation term for Advanced Practice Nurses is three years instead of the two years applicable to regular RNs and LVNs. A CRNA or Nurse Practitioner’s enrollment in TPAPN is also clearly reportable to provider networks, malpractice insurers, hospitals, and other credentialing agencies and can affect their ability to successfully enter into agreements with these entities for years to come.
A CRNA or NP who has been referred to TPAPN, or the Board of Nursing, should know there are other potential options available and I strongly advise them to speak with an attorney well versed in representation before both TPAPN and the Texas Board of Nursing prior to making a final decision. At the outset, it may be possible for you and your attorney to refute or dispel the allegations underlying the TPAPN or Board referral. Even if this is not possible, a CRNA, Nurse Practitioner, or any other nurse is not eligible to participate in TPAPN or be placed on an equivalent Board Order unless they have a diagnosis of substance abuse or chemical dependency. Depending on the allegation and the nurse’s history of use or abuse of mind-altering substances, they might not carry such a diagnosis.
Some cases may even be eligible to be resolved through a referral to the Extended Evaluation Program (EEP), a sub-program operated by TPAPN which is meant to apply to nurses who may have some history indicating an issue with drugs or alcohol but who do not carry a DSM-IV diagnosis of substance abuse or chemical dependency. A nurse in EEP is only required to verify their sobriety through one year of negative random drug screening. It does not involve any restrictions on their scope of practice or, in the case of Nurse Practitioner’s, their prescribing authority. Moreover, a nurse’s participation in EEP is confidential, not a part of the public record, and is not disclosable on credentialing and other similar applications. Furthermore, participation in EEP is not considered to be discipline under the Nursing Practice Act.
A CRNA or Nurse Practitioner who is being asked to enroll in TPAPN and who thinks this is not an appropriate route should explore their options prior to making a decision which will dramatically affect their ability to practice as an APN. The unfortunate truth is that many nurses are in TPAPN when they shouldn’t be, likely because they felt they had no other choice. Even more tragically, it is often these nurses who have the most problem complying with their participation agreement as an individual who is in a treatment program but who don’t belong there is more likely to not give sufficient attention to remaining in compliance. Completing 90 Alcoholic’s Anonymous meetings in 90 days is hard enough for someone who genuinely belongs in and can benefit from AA. It is especially difficult for someone who does not. If you are in such a situation, I emphatically suggest that you talk to an attorney and weigh your options prior to making a final decision.
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 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.
Recently I have been the attorney of record in nursing license defense matters against the Texas Board of Nursing for a number of registered nurses and licensed vocational nurses (RN & LVN Practice) in cases where a low level EtG test is in issue despite clear indications that these test results are inadequate proof of deliberate consumption of ethyl alcohol (ETOH). Thus the formal charge by the BON is unsupported by adequate admissible evidence and should not be the basis for the discipline of the nursing license / registration. In most of these cases a favorable result is anticipated for the nurse, but not without a long and arduous fight against the staff and lawyers of the Texas Board of Nursing.
Generally the cases arise in one of two ways:
- The Texas Peer Assistance Program for Nurses (TPAPN) is monitoring someone’s nursing practice pursuant to a Board Directive or Agreed Order and as such any low level test per TPAPN policy is considered a violation and is per se grounds for dismissal from TPAPN. This is also cause for a new report to the Texas Board of Nursing and Staff’s allegations / Formal Charges that the Nurse’s conduct is “unprofessional”;
- The Texas Board of Nursing has disciplined the license of a Nurse who is now under an Agreed Order and monitored by staff of the Board’s compliance and enforcement division (Carolyn Hudson for LVN Practice and Diane Burell for RN and APN practice).
In either case my law firm has seen low level tests where the result is less than 1000 ng/ml being used as an attempted basis for the unwarranted discipline of a nursing license by the attorneys and executive director of the Texas Board of Nursing in spite of clear advisory warnings that the test is in-and-of-itself flawed. Despite clear evidentiary problems staff of the Texas Board of Nursing still attempts to impose new disciplinary action against the nurse and their nursing license that generally involves either a voluntary surrender or an order of enforced suspension. This is especially egregious, as in most of the cases that the lawyers in my law firm have reviewed there is no indication that the nurse has actually violated their agreed order or the Texas Nursing Practice Act.
In a recent case I am the attorney for a Nurse (RN) who admitted truthfully on her license renewal form that she had attended treatment for alcohol use and dependency (Substance Abuse). There were no practice issues alleged and a long history of quality nursing care provided. The Nurse was ordered to TPAPN under a Board Order and she had been compliant in TPAPN for almost two (2) years -22 months to be exact.
The client then threw off a low lying result for EtG which was under 500 ng/ml. Nevertheless TPAPN deemed her non-compliant and reported her to the Texas Board of Nursing for further prosecution and licensure discipline. Staff of the Board is now attempting to revoke her license even though she has never been charged or deemed to have committed a nursing practice error and there is no evidence that she has been anything but sober.
SAMSHA (the Substance Abuse and Mental Health Services Administration) has posted an advisory warning that the EtG lacks proven reliability and should not be used as the basis for regulatory action on its own. Despite this fact, staff of the Texas Board of Nursing continues to harass and punish nurses who do not hire an experienced attorney to defend themselves in a license defense matter involving allegations / violations of the Nursing Practice Act. The punishment is executed in the form of an Agreed Order of Surrender or Enforced Suspension until the nurse goes through unnecessary treatment again and demonstrates one-year of objective and verifiable proof of sobriety / abstinence. Any nurse with a vested interest in thier license owes it to themselves to call an experienced attorney so they may better understand and properly assert their rights.
In cases involving possible alcohol/controlled substance abuse or mental health issues, the Texas Board of Nursing frequently asks nurses to submit to a forensic psychological evaluation and polygraph examination. This standard letter also contains a list of pre-approved evaluators and polygraph examiners. Any nurse who receives such a request should immediately stop and call an attorney with experience practicing before the Texas Board of Nursing.
The psychologists and psychiatrists referenced on this pre-approved list are there solely because they have a history of providing one-sided reports supporting whatever disciplinary measures the Board is considering imposing on your license. During the past decade I have represented approximately one thousand nurses before the Texas Board of Nursing. Throughout this period I have never seen an evaluation performed by a professional on the pre-approved list that is favorable to the nurse. This includes individuals whose entire history involves one or two DWIs or misdemeanor marijuana charges from two or more decades ago.
The bulk of these questionable evaluations are performed by two forensic psychologists in Richardson Texas. When reading an evaluation by one of these evaluators, I am frequently shocked by the vast leap between the verifiable facts in a given case, the results from the relevant forensic tests (such as the SASSI), and the final recommendations of the Board evaluators. Regardless of whether or not it is objectively justified, this recommendation is typically for revocation, referral to TPAPN, or the imposition of a long period of Board monitoring.
For example, one recent case involved a nurse with a ten-year old deferred adjudication involving possession of methamphetamines. Despite ten intervening years of incident-free nursing practice, my client’s successful completion of five years of community supervision (including the provision of five years of clean drug screens), and no other evidence of a problem, one of the above-referenced doctors wrote an evaluation finding that the nurse was an addict, unfit to practice nursing, and that the Board should seek to revoke her license. At this point the nurse felt the situation was so hopeless she had already sent started voluntarily surrendering to the Board; however, thanks to a last minute call to my office, I was able to rescind her surrender and ultimately have her case dismissed without any disciplinary action.
I have previously blogged about the Board’s use of polygraph examinations on this site which I urge you to read. The bottom line is that despite being scientifically invalid and clearly inadmissible in court, the Board continues to request polygraph exams. This is presumably so that their pre-approved evaluators can then use the questionable results to claim that a nurse was lying or overly defensive during the examination. Yet, even in the rare instance where the nurse obtains a clean polygraph, the forensic psychologist’s evaluation is invariably still negative.
Any nurse who receives a request from the Board that they should submit to a forensic evaluation and polygraph exam should immediately contact an attorney with experience before the Texas Board of Nursing. You need to know your rights including the ability to refuse the polygraph exam and request an evaluator not on the pre-approved list. By seeing one of the Board’s evaluators and polygraph examiners you place your nursing license at significant risk. A negative report will have to be rebutted, likely through a second evaluation by a neutral and better credentialed evaluator. Even then there is still a disfavorable evaluation out there raising an issue as to your fitness to practice.
I sincerely urge you to contact a lawyer prior to simply acceding to the request. More is at stake than you might think and you shouldn’t go ahead without some advice from someone other than the agency who holds authority over your license.
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.
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).
Authorized under Chapter 564 of the Pharmacy Act, the Professional Recovery Network (PRN) offers a means for chemically dependent and/or mentally ill pharmacists and pharmacy students to confidentially enter a recovery program with the goal of integrating them back into professional practice. Founded by the Texas Pharmacy Association, PRN provides an incentive for pharmacist’s suffering from mental illness or chemical dependency to commit to early treatment and thereby avoid additional harm to the public and themselves.
A person who has who has knowledge of an act or omission by a pharmacist that could provide grounds for discipline under Section 565.001(a)(4) or (7) of the Pharmacy Act- mental illness and intemperate use of drugs or alcohol respectively- may report the license holder to the PRN. In addition to such reports by concerned colleagues and family members, pharmacists and students are encouraged to self-report to PRN. The Pharmacy Board may also refer the professional to PRN in lieu of a disciplinary proceeding. Once PRN receives a report they will contact the pharmacist, if it was not a self-report, and refer them to a mental health evaluator. After meeting the mental health evaluator, the pharmacist will enter into a Recovery Support Agreement with the PRN committing themselves to treatment and recovery. The Agreement will outline the proposed treatment program and include specific recommendations made by the evaluator. By entering into the Support Agreement, the pharmacist or student will also consent to maintaining contact with the PRN Staff and an assigned mentor, providing written quarterly reports, and, if appropriate, undergoing random drug screens. The pharmacist’s mentor, who is either a pharmacist with a long history of sobriety or extensive experience in a twelve-step program, is there to support, advise, and advocate for the professional throughout treatment.
As long as the pharmacist adheres to their Recovery Support Agreement their treatment should remain confidential and formal disciplinary proceedings may be avoided. The Board may only disclose the pharmacist’s treatment and nature of their impairment in a subsequent disciplinary hearing, to a state licensing body in another jurisdiction, and in response to a court order. If the Board determines that the pharmacist’s impairment is to such a level that it poses a potential danger to the public, they may only disclose that the professional’s license has been suspended, probated, or revoked, not the specific nature of their impairment.
If a license holder fails to comply with their Recovery Support Agreement, then the initial report and the nature of the pharmacist’s impairment may become public and the Board may take 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 Texas State Board of Pharmacy is likely to take disciplinary action as the problem will be seen as not being taken seriously or so advanced that additional intervention is needed. Even if the pharmacist or student is not actually chemically dependent or suffering from a mental illness, they are not in a credible position to argue. Here hiring an attorney becomes a necessity as the penalties imposed by the Board can be severe. Moreover, a knowledgeable attorney experienced with recovery and the process can help to reduce the terms and impediments inherent in and Agreed Board Order
More information can be found at the website of the Texas Pharmacy Association: (www.texaspharmacy.org)