Texas Board of Nursing Abuse of Chemical Dependency Guidelines
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.
The Texas Medical Board and Recreational Use of Dextromethorphan
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.
Chemical Depndency, PRN and The State Board of Dental Examiners
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).Pharmacists: Addiction, Mental Health & PRN
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)
