Texas State Board of Pharmacy Vigorously Pursues New Sanction Guidelines for Criminal Offenses
In the past year the Texas State Board of Pharmacy has started attempting to strictly enforce their recent amendments to the Board’s administrative rules related to punishment for criminal offenses. These rules prescribe certain standard disciplinary sanctions for a wide-ranging list of specific offenses. Pharmacists with either a criminal record or a pending criminal case should take note as the sanctions involved are generally quite severe and can include revocation of a licensee’s registration by the Pharmacy Board.
For example, according to the guidelines a pharmacist who is convicted or placed on deferred adjudication/probation for a felony drug-related offense under Chapter 481 or 483 of the Health and Safety Code related to fraud, or the manufacture, delivery, theft, or possession with intent to deliver of drugs is subject to the denial or revocation of their pharmacist license until 20 years after the date of disposition. Even at the twenty year mark, the guidelines state the Texas State Board of Pharmacy’s intent to place the pharmacist on a five year probationary order.
For those pharmacists convicted or placed on deferred adjudication for the felony possession of drugs, the guidelines state that the Board will deny, revoke, or suspend the professional’s license if they are still on probation. Likewise, if the pharmacist is not on probation but it has been five or less years since the date of disposition, then they are eligible for a five year probationary order but only if they have first been evaluated by an addiction specialist who opines that they are safe to continue practicing pharmacy. Even if it has been over twenty years since the date of disposition, the TSBP still wants to place the pharmacist on a one year probationary order. Of additional note is that the guidelines apply essentially the same set of penalties to a pharmacist convicted or placed on deferred adjudication for misdemeanor possession.
It has been my experience as an attorney that the Texas State Board of Pharmacy tries to strictly adhere to these guidelines at the informal stage of the investigatory process only to become somewhat more receptive to mitigating evidence and other factors once a case has been filed at SOAH. Unfortunately, I have seen many pro se or poorly represented pharmacists accept the Board’s settlement offer, however harsh, at the informal stage out of sense that nothing better is possible.
Legally speaking, the TSBP’s sanction guidelines are only just that: guidelines. Although an Administrative Law Judge will give the guidelines some deference at a formal administrative hearing, Pharmacy Board attorneys are still required to show that under the specific factors present in that case, the requested sanction is warranted. On the flipside, it is the burden of the pharmacist and their attorney to draw out the mitigating factors and demonstrate why a lesser sanction is in order. This necessarily demands an intimate and working knowledge of the rest of the Pharmacy Board’s rules, the Texas Pharmacy Act, and other pertinent sections of the Texas Occupations Code, including Chapter 53, as to first, what are the relevant mitigating factors and second, how to get them into evidence.
Every pharmacist with a criminal record or a pending criminal case should be aware of the Texas State Board of Pharmacy’s new sanction policies. If you are in such a situation I strongly advise that you contact an attorney experienced in administrative law and representation before the Texas State Board of Pharmacy to discuss possible outcomes and preemptive courses of action.
Enough is Enough: Texas Board of Nursing Pursuit of Licensees Following Criminal Acquittal
Recently I have represented several nurses before the Texas Board of Nursing who were being pursued by Board Staff for allegations for which they had already been acquitted by the criminal justice system. As one would expect, this quasi-double jeopardy is extremely frustrating to the nurse. Despite already having hired a criminal lawyer and clearing their name in criminal court, they must now hire a license defense attorney to do the same thing before the Board of Nursing.
The most recent example, involved a case where the nurse had been accused of an inappropriate touching by a ten year old girl. The girl claimed that she had awaken at a sleep over at the client’s house to discover the nurse touching her; however, there were several inconsistencies with the girl’s testimony and it later came out that she was friends with another young girl who had made the exact same allegation (down to every detail) against my client several years prior but had subsequently admitted to her mother that she had made it up.
At the close of the nurse’s criminal trial, the jury returned a unanimous verdict of not guilty. Moreover, Child Protective Services had conducted their own investigation into the matter and determined that nothing had occurred. Yet, despite his acquittal and the negative finding by Child Protective Services, the Texas Board of Nursing decided to pursue their own disciplinary action against my client, seeking the revocation of his nursing license.
Thankfully, my firm was able to enforce the expunction order which had previously been entered by the criminal court to prevent the Board from using second-hand records from that trial to prove their case. Instead, the Board of Nursing was forced to bring the girl to testify in person at a hearing at the State Office of Administrative Hearings. Based on conflicting testimony from our witnesses and several discrepancies between the girl’s original outcry and her testimony at the hearing, the Administrative Law Judge concluded that the Board of Nursing had not met their burden of proof and accordingly entered an opinion favorable to the nurse.
I understand that the Board has a mission to protect the public from bad nurses; nevertheless, at some point one has to think that enough is enough. A person should only have to clear their name so many times before it is reasonable for the Board to think twice about wasting state money to retry a licensee for the same conduct.
The underlying lesson is that simply because you received a not guilty verdict in criminal court or the District Attorney decided not to prosecute, you are not shielded from a licensure action by the Texas Board of Nursing. They frequently subject a nurse licensee to yet another legal action where they are forced to again clear their name or face severe restrictions on, or even termination, of their livelihood. If you are facing such a situation with the Texas Board of Nursing, I highly recommend that you contact a seasoned administrative attorney with experience before the Texas Board of Nursing and the State Office of Administrative Hearings as otherwise you could be risking your license.
Texas State Board of Pharmacy Overreaches Statutory Mandate
Texas State Board of Pharmacy Overreaches Statutory Mandate Regarding Deferred Adjudications/Community Supervision:
I am currently serving as the defense attorney in several cases before the Texas State Board of Pharmacy that involve clients who are presently on deferred adjudication/community supervision for drug related offenses. In all of these cases the Board has taken the position that their Rules mandate the outright revocation of the license of any pharmacist or pharmacist tech who is on community supervision or probation for a felony drug related offense regardless of the circumstances or any other factor. This is outrageous and a clear contravention of their statutory mandate.
All administrative licensing agencies are creatures of statute and accordingly must derive their authority to regulate from law passed by the state Legislature. The Texas Pharmacy Act sets forth the public mandate of the Texas State Board of Pharmacy in § 551.002 of the Texas Occupations Code. This Sections states that it is the purpose of the Pharmacy Act and the Pharmacy Board “to regulate in the public interest the practice of pharmacy in this state as a professional practice…” in such a way that will “promote, preserve, and protect the public health, safety, and welfare.” Tex. Occ. Code § 551.002. Try as it might, the Board must regulate and discipline pharmacists while remaining within the confines of this public mandate.
In defiance of § 551.002, the Board has, within the past three years, passed and frequently amended Title 22 § 281.64 of the Texas Administrative Code in such a way as to make it impossible for any pharmacist or pharmacist tech to retain their license if they are also placed on deferred adjudication. For example, under Rule 218.64 any pharmacist or pharmacist tech who has been convicted of or is currently on deferred adjudication or deferred disposition for a felony involving either 1) mere possession or 2) the manufacture, delivery, or possession with intent to deliver, fraud, or theft of drugs is automatically subject to the revocation or denial of their license. This is without regard to the individual’s culpability, rehabilitation, age at the time of offense, or current fitness to serve as a licensed pharmacist or pharmacist tech. In many situations the pharmacist is not even deemed eligible for licensure until 20 years has passed since the date of disposition.
This Rule is in clear conflict with the Board’s statutory mandate. That mandate requires the Board to regulate “in the public interest” and in such a way that will “promote, preserve, and protect the public health, safety, and welfare.” Tex. Occ. Code § 551.002. Licensure revocation based merely in the bare fact of being on community supervision or probation for a drug-related offense satisfies neither of these standards. This Rule takes no account of the pharmacist or pharmacist tech’s extent of involvement in the criminal offense, whether they were even aware a criminal offense was being committed, or whether their participation was minimal or expansive. No account is taken of the licensee’s subsequent rehabilitation, their youthfulness at the time of the offense, or their present and future value to the community. The only thing that matters is whether or not twenty years have passed since the date of disposition.
Keep in mind that under Chapter 53 of the Texas Occupations Code licensing agencies such as the Pharmacy Board are required to take into account a set of specified mitigating factors, many of which are listed above, when taking a disciplinary action against a licensee who has actually been convicted of the same offense. Arguably on this ground alone, the Pharmacy Board’s Rule 281.64 is ultra vires (A Latin phrase crucial to administrative law which translates as “beyond the powers”) and hence void.
The only real explanation for this outrageous policy is a desire to punish pharmacists merely for the fact that they are on criminal probation and thereby guard the public image of the Pharmacy Board. There is no rational reason for summarily revoking a pharmacist who is on deferred adjudication for a drug-related offense. This is underlined by the fact that the Board freely permits chemically dependent and impaired pharmacists to continue to practice. Almost by definition these licensees have committed acts that would be deemed, had they been prosecuted, criminal possession, prescription fraud, and any of a number of offenses under the Texas Health and Safety Code. Many of these licensees also have ongoing addiction and chemical dependency issues, a circumstance which would arguably make their continued licensure more dangerous to public health and safety.
Furthermore, in my practice I have served as the defense attorney for hundreds of other licensed health care professionals before the Texas Medical Board, the Texas Board of Dental Examiners, and the State Board of Veterinary Examiners. These agencies are all notable because they all regulate licensees who hold prescriptive authority. None of these agencies have a similar provision in their administrative Rules. It is unclear why these Texas Boards feel that the public health and safety is safeguarded by permitting their licensees, who are also on felony deferred adjudication, to continue to practice under probated suspensions or subject to a reprimand whereas the Pharmacy Board demands outright revocation as a matter of law. Likely they realize that revocation as a matter of law is unreasonable, overly draconian, and likely beyond the bounds of their administrative authority. Even a Texas criminal court has greater discretion in fitting an appropriate punishment to each case.
It remains to be seen whether or not Rule 281.64 can actually withstand legal scrutiny in a full contested case or declaratory judgment action. I feel confident that it cannot, however, even challenging this Rule places the pharmacist in a position where they have spend extensive legal fees, not to mention time and frustration, to circumvent Rule 281.64.
The lesson any pharmacist or pharmacist tech should take away is that if you are on deferred adjudication for a drug-related offense you should seek the advice of an attorney immediately. This attorney should also be someone who is familiar with the Texas State Board of Pharmacy, the Pharmacy Act, and the applicable administrative rules. Early intervention can mean the difference between continuing as a pharmacist and losing your license and source of income.
TMB & BNE's Policy on Deferred Disposition Arguably Unlawful
Despite the Texas Code of Criminal Procedure’s clear admonishment that a person’s successfully completed Deferred Disposition (available for Class C offenses in Municipal and Justice Courts only) cannot be used against them, the Texas Board of Nurse Examiners and Texas Medical Board continue to use such a record as a basis for disciplinary investigations and sanctions. I recently represented a client physician who had been given a deferred disposition for Public Intoxication -a Class C misdemeanor. Even though my client successfully completed their deferral requirements, the TMB nevertheless dug this fact up and used it to try and sanction the physician’s license. The Texas Board of Nursing is also guilty in this area. Despite the fact that an attorney / prosecutor and a criminal judge decide that a deferred disposition is warranted, licensing boards and administrative agencies routinely attempt to impose discipline anyway. Unfortunately, all too often unrepresented applicants and lawyers practicing outside of their scope fail to realize the remedies available to them.
Besides being bad policy and simply unfair, the practice is also arguably illegal under the Code of Criminal Procedure. The Code specifically states that once the complaint is dismissed upon the person’s successful completion of deferred disposition, “there is no final conviction and the complaint may not be used against the person for any reason.” Texas Code of Criminal Procedure § 45.051(e). Yet, the Medical Board and the Texas Board of Nursing frequently use such criminal history as the foundation of investigations, licensure actions and application denials. The statute’s prohibition against the use of the disposition goes to the very reason for having deferred disposition in the first place. It is designed to give the minor criminal offender a second chance at a clean slate. The policies of the Texas Medical Board and the Board of Nurse Examiners undermine this purpose and needlessly burden their license and discipline divisions with minor offenders that pose no danger to Texas patients. Ultimately when this predicament the licensee should seek the remedy of expunction which is availalable in almost all cases where a defferred disposition has been succesfully completed.
The Texas Board of Nursing & Minor Criminal Infractions
For the January 17-18, 2008 meeting of the Texas Board of Nursing (formerly the Texas Board of Nurse Examiners), attorney and general counsel Dusty Johnson presented an informational report on the Board’s policy in regards to minor criminal infractions and licensing. Of particular interest for current and future Texas nurses, the report provides a list of crimes which the Board has deemed to be too minor to warrant an investigation or disciplinary order in connection with a license application or renewal. Following the mandate of Chapter 53 of the Texas Government Code, the BON (BNE) recognizes that there are some forms of criminal conduct which are not sufficiently related to nursing to bring into question the licensee’s competency. Specifically, the listed criminal offenses are compared to the Board’s own Rule 213.28(i) concerning “youthful indiscretions.” Also of note is the finding that the Nursing Board now annually investigates approximately 3000 “positive hits” resulting from the standard FBI criminal background check required of all license applicants.
The criminal offenses considered not to be sufficiently related to the practice of nursing as to warrant an investigation or disciplinary action are:
- One misdemeanor DWI/DUI (not on probation)
- One misdemeanor offense of possession of marijuana
- Up to two misdemeanor theft by check
- One misdemeanor domestic/family violence
- One misdemeanor theft over $20 less than $250 (normally assoc. with shoplifting)
- One misdemeanor shop lifting
- One misdemeanor criminal mischief
- Misdemeanor graffiti
- One misdemeanor criminal trespass
- One misdemeanor disorderly conduct
- Up to two misdemeanor Public Intoxication
- Up to two misdemeanor Pan Handling
- Misdemeanor “loud noise” violations
- One misdemeanor Reckless Driving
- Misdemeanor minor in possession of tobacco
- One misdemeanor selling alcohol to a minor
- Failure to appear
- Vehicular molestation (slashing tires)
It has been my experience that the Board is oftentimes less than faithful to the above stated policy. In fact a discerning reader will note that the exemption of the above offenses is subject to the proviso that the Board does not deem them connected with patient care or the practice of nursing. In reality BNE attorney’s are all too ready to stretch any reading of what relates to the practice of nursing beyond all plausibility in their crusade to discipline nurses. For example, of the above, DWI convictions/deferred adjudication, domestic/family violence, and any form of theft are frequently the basis of Board of Nurse Examiners license investigations and disciplinary action. The Board’s mandate of protecting Texas medical consumers while also ensuring the licensing of much needed new nurses would be better served when the BNE decides to rigorously adhere to these stated policies.
Deferred Adjudication Probation & Discipline by State Licensing Boards
Last week I resolved three cases involving pleas of guilty or no contest to drug / alcohol related offenses and the subsequent investigations and prosecutions by the individual Client’s respective State licensing Board(s):
- The Texas Optometry Board
- The Texas State Board of Pharmacy
- The Texas Medical Board
In each case, although the Board did not have jurisdiction to discipline for the criminal status in-and-of-itself, each agency found a way to link the conduct (the actions behind the commission of the criminal offense) to the Client’s occupational practice and attempt to resolve the matter through a reasonable agreed order.
Neither the Texas Pharmacy Act nor the Texas Optometry Act afforded jurisdiction to the agency to discipline the license holder for the court ordered felony deferred adjudication probation(s). However, public scrutiny being what it is, each Board simply stated that the conduct was egregious and unbecoming of a licensee. Moreover, the Board’s mission was to protect the public and each agency felt this was something the public should know about.
In each case the Respondent was able to put forth an excellent showing of compliance since the offense date as well as evidence demonstrating their good professional character including efforts made to remediate the circumstances. Each Agreed Order allowed the individuals to remain in active practice in an unsupervised manner. No active suspension was imposed in either case. A fine was assessed in one case. The reality –a pound of flesh for punishment and appearance! Unfortunately, each Client had technically violated another Rule or Statute of their respective licensing Board’s Act so if prosecuted they would be subject to discipline under an alternative theory. The good news is each agency was receptive to the individual’s situation(s) and took into account the mitigating and remedial circumstances. The bottom line is sometimes deferred probations do not afford the protection from State licensing board & agencies that they used to. The Texas Pharmacy Act has also been amended to include jurisdiction over deferred adjudication(s). The act discussed above occurred prior to the amendment going into effect.
Expunctions: Disclosure, Discipline & The Texas Board of Nurse Examiners
The Texas Code of Criminal Procedure Chapter 55, Article 55.04 forbids a State Agency from using, questioning an individual about, or in any way releasing information about an arrest that has been expunged pursuant to the provisions of Chapter 55. Moreover, Tex. Code Crim. Proc. § 55.03 provides that the effect of an Expunction Order in a licensure disciplinary proceeding, including the application process, allows for the individual to deny the arrest and the existence of the Order of Expunction. However, the Texas Board of Nurse Examiners (BNE) requires that a licensed nurse or nursing license applicant disclose the existence of the arrest on renewals and initial license applications. It is undetermined if they seek to utilize these arrests against the nurse in a disciplinary proceeding or as a basis for the denial of a license. However, the mere thought that the registration renewals or applications ask about information which if utilized would subject members of Board Staff to criminal sanctions raises a few alarming concerns.
Clearly a great number of people are under the false impression that a dismissal and an order of expunction are one and the same. Perhaps Board Staff is attempting to make sure that the arrest has truly been expunged. Unfortunately, this violates the spirit of the expunction statute as the effect of the expunction allows an individual the right to deny the arrest and the existence of the expunction order.
Moreover, the Board of Nurse Examiners can clearly discipline a nurse’s license or deny an application for failing to completely and fully disclose discoverable criminal history. They can not however, use an expunged offense (or the conduct behind the offense) as a basis for discipline or denial. In the last several years my law firm has expunged several arrests for both Registered Nurses (RN’s) and Licensed Vocational Nurses (LVN’s) and have always noticed the BNE in the Petition for Expunction. They have never contested the expunction or attempted to utilize the information.
If a nurse finds themselves in a situation of uncertainty with respect to whether or not an arrest has been expunged or needs to be disclosed they should contact an attorney who is familiar with both criminal law & the administrative process. If the offense is truly expunged a nurse does not have to prove that it is. However, if it is not then it must be disclosed. Finally, oftentimes DPS and other agencies make mistakes so sometimes truly expunged arrests are not properly destroyed by the reporting entities. It is therefore imperative that a certified copy of the Order of Expunction be retained indefinitely.BNE & Criminal History -Public Image or Public Safety?
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The Board of Nurse Examiners for the State of Texas received authorization and funding from the legislature to undergo complete criminal history and background checks on every nurse in the State of Texas. Accordingly, every LVN and RN in Texas will be required to submit a fingerprint card to the BNE over the next ten years. The cards will be submitted to the FBI and the Texas Department of Public Saftey for verification and accuracy of the Nurse's identity and criminal history. Ten percent of nurses will be required to undergo this scrutiny per year until all licensees have been evaluated. This has created a marked rise in investigations and disciplinary orders. There are several inherent problems with this process however, and nurses should seek advice from an experienced lawyer before they accept a proposed disciplinary sanction that will mar their record indefinitely.
To begin, the BNE did not acquire jursidiction over deferred adjudications until September 1, 2005. Staff of the Board however, is investigating offenses that resulted in deferred adjudication probations and dismissals that are more than twenty years old. This week alone I received calls from two LVNs who had just such misdemeanor criminal records and were being investigated by the BNE. Board Staff, including the Attorneys, readily admit they did not and do not have substantive jurisdiction over the criminal history, but maintain they are concerned about the conduct or the psychiatric disorder that may be reflected by the offense and the behavior. The fact is both of these nurses have renewed their licenses for the last twenty (20) years and have never been required to reveal this history. Additionally, both have practiced nursing without incident during this period and each has had exceptional performance appraisals from all employers. Why then is the BNE delving into these issues when all of their investigators have such large case loads that they can not adequately work up a case? The answer is simple -Public Image.
A recent article published by the Fort Worth Star Telegraph entitled Nursing Board Sets High Standards describes Staff of the Board referring to public opinion concerning nurses. The Executive Director of the Board was quoted as saying: "Americans rate nurses at the top of the list of trusted professionals. And there's plenty of reason why". So is the BNE more concerned about the way they appear to the press and the public or ensuring there are enough quality nurses available to meet the demands of the workforce? Arguably, the stance and the approach suggest that public appearance and image is what is priority.
Recently I have had a flurry of client's who are being invesigated for alcohol related Class C offenses that are over a decade old. Staff of the Board maintains they are worried that the nurse may suffer from alcohol abuse or chemical dependency. What Board Staff fails to look at however, are the last ten years of a perfect working history, with no practice related errors. Board Staff would like to predicate a nurse's future on their remote past without due consideration given to recent history. This absurd infringement was taken to an extreme when a prospective Client was being investigated for an arrest for marijuana possesion that occurred overseas over thirty years ago. What is even more ludicrous is that no conviction ever was imposed and the country is now a war zone. I would like to see staff of the Board issue a subpoena to this war ridden country for a police report that is written in hyroglyphics. BNE lawyers and attorneys may be adequate trial lawyers, but any Administrative Law Judge would be hard pressed to admit such evidence given the numerous evidentiary and admissibility problems inherent with such a report.
