Texas Physician Health Program - When It Is Not Appropriate

In 2010, the Texas Legislature created the Texas Physician Health Program (PHP), effectively shifting the oversight of licensed Texas physicians with substance abuse disorders and mental illness from the Texas Medical Board to a program uniquely tailored to monitor those issues. Responsible in part for the success of this idea is the sentiment that physicians generally do not like dealing with the Medical Board, and are not keen on self-reporting substance abuse issues to the Medical Board or being candid about mental health problems. The PHP, while not entirely independent from the Medical Board (PHP is administratively linked to the TMB), was intended to provide a more attractive option for those physicians who needed the oversight and the help that PHP would provide. In the 2+ years since its creation, the PHP has largely been successful, and certainly is still preferable to the Medical Board’s investigative and disciplinary process in many instances. However, there are certain types of “substance-related” cases in which a referral to the PHP is not appropriate, and a physician would be better served to hire an experienced professional license defense attorney and take the case to the Medical Board, seeking dismissal. Simply put, a one-time arrest and conviction for DWI or Public Intoxication does not justify a long-term PHP contract aimed at facilitating recovery. 

The PHP is not typically appropriate in instances where the physician has had a one-time substance-related arrest, but no substance abuse diagnosis. However, we frequently encounter physicians who have been arrested for one-time instances of DWI or public intoxication and are subsequently offered participation in the PHP in lieu of Medical Board action. Oftentimes, the offer of PHP contract will have been given before the DWI case is even criminally adjudicated. For a physician that does not seek the proper legal guidance, that one-time DWI arrest will result in a 5-year PHP contract, where the physician is subjected to terms that likely include substance abuse treatment, Alcoholics Anonymous attendance, drug screening, and possibly practice restrictions. While a confidential PHP contract that offers that level of structure is probably appropriate for a physician with a diagnosed substance use disorder, it is not appropriate for the physician who made a highly regrettable, one-time decision to drink and drive. Additionally, it is very difficult for anyone to stay compliant with a 5-year PHP contract when there is no actual substance abuse disorder- the terms of the order start to look very arbitrary. Moreover, there will be lifelong consequences with credentialing and applications for privileges. 

The alternative to a PHP contract is the perceived threat that the physician’s case will be forwarded to the Medical Board for investigation and possible disciplinary action. Contrary to common misperceptions, that is often the preferable scenario in this instance. The Medical Board does not have the power to discipline a physician for a one-time arrest and conviction of DWI, and as long as that DWI does not lead to evidence that the physician may have a substance abuse problem, the Medical Board must dismiss the case (Tex. Occ. Code § 164.051(a)(2)). The physician will probably be investigated and invited to participate in an Informal Settlement Conference with the TMB, but an experienced administrative law attorney should be able to guide them through the process without receipt of any discipline. The professional license defense attorneys of the Leichter Law Firm have been very successful in getting these cases dismissed.

If you are a physician, physician assistant, or other licensee of the Texas Medical Board, and you have been offered a PHP participation contract in response to a one-time substance-related arrest, do not hesitate to contact the experienced administrative law attorneys of the Leichter Law Firm. Even if you have not yet been contacted by the TMB or the PHP regarding your substance-related arrest, it is advisable to contact us at 512-495-9995 for a free consultation.       

Request for Mental Health Evaluation by Texas Pharmacy Board or PRN

 

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.

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.

DWI: Medical Licenses & Physician Discipline

The Texas Medical Board does not have the power to discipline a physician’s medical license / registration for an isolated arrest and subsequent conviction for driving while intoxicated. However, Board Staff will open an investigation into all physicians who have been arrested for DWI to determine if the physician suffers from a medical or physical condition which may impair their ability to practice or during the commission of the DWI they committed unprofessional conduct.

The Texas Medical Practice Act (Texas Occupations Code § 164.051) and the Medical Board’s Rules found in the Texas Administrative Code (Title 22, Part 9, Rule 190.8) are the guiding statutory for the Board’s ability to investigate and discipline a physician’s license for the offense of DWI. Per the Medical Practice Act the Board lacks the jurisdiction to impose discipline for a DWI offense that “stands alone” as it is neither a felony nor a crime of moral turpitude (Tex. Occ. Code § 164.051(a)(2). However, if an investigation yields that a physician was on call, subject to duty or scheduled to work soon after the time of arrest the following potential violations will be explored:

  • implications of unprofessional conduct (Prohibited Practices § 164.052(5)
  • the possibility of the physician’s use of alcohol or drugs in an intemperate manner that in the Board’s opinion could endanger a patient’s life ( Prohibited Practice § 164.052(4)

Practically speaking, Board Staff will investigate and schedule an informal settlement conference (ISC) after the arrest has been finally adjudicated. Generally, arrests that result in dismissals in the criminal court may be dismissed before making their way to the Board's legal department; however, convictions will almost always lead to an ISC. If, during the ISC, the physician is able to demonstrate that the DWI was an honest mistake and/or isolated incident the case will usually result in the recommendation of a dismissal -no disciplinary action. However, if the Board’s panel suspects the habitual and intemperate use of alcohol or drugs a disciplinary order (Agreed Order) involving drug testing, treatment and psychological / psychiatric evaluations may be presented to the physician. Anytime a physician has two DWI’s the physician will be placed into a position where they are forced to prove an absence of a DSM IV diagnosis relating to alcohol / substance abuse. For a more detailed explanation of the Texas Medical Board’s investigatory / disciplinary process please see our firm’s website pamphlet concerning medical licenses & discipline.

DWI & Nursing License Discipline by the Texas Board of Nurse Examiners

Although initial arrests and convictions for Driving While Intoxictated (DWI) will not ordinarily result in the imposition of a disciplinary sanction against a Texas Nurse, they often do give rise to a stressful and searching investigation by Staff of the Board of Nurse Examiners. This result is due to, on the one hand, the legal fact that under the Nursing Practice Act, many DWI’s do not relate to the practice of nursing, and on the other, the practical reality of the Nursing Board’s zealous policing of what it deems unprofessional conduct (Texas Occupation Code § 301.452(b)(10).  A knowledgeable attorney can best secure a positive outcome by ensuring that the correct standard is applied and not substituted by the Board’s personal opinion(s) on what constitutes unprofessional or dishonorable conduct.  

Under the Nursing Practice Act the Board can take disciplinary action against a licensee if a nurse has been convicted or placed on deferred adjudication for either a felony or a misdemeanor involving moral turpitude. (Texas Occupation Code § 301.452(b)(3)). An individual’s first two DWI’s are misdemeanors under the Texas Penal Code with the third and all those thereafter rising to felonies. From a legal standpoint, however, the Nursing Board’s broad discretion to take disciplinary action under the Nursing Practice Act is limited by the Texas Occupation Code’s prescription that discipline can only be imposed if the felony or misdemeanor “directly relates to the duties and responsibilities of the license holder.” (Texas Occupation Code § 53.021). In deciding this issue, the Board must weigh certain factors such as “the relationship of the crime to the purposes for requiring a license to engage in the occupation” and “the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.” (§ 53.022)

Board Staff’s policy, however, is to initiate an investigation into a nurse’s fitness and character if they have two or more criminal arrests for alcohol or drug related offenses in a lifetime. Board Staff does not seem to differentiate between arrests, deferred probations, regular probations, dismissals and final convictions with respect to opening an investigation. Once the investigation is initiated, Board Staff tries to force the nurse into a forensic psychological evaluation and polygraph test in an effort to determine if the license holder suffers from a DSM IV diagnosis of chemical abuse or dependence. Unfortunately, any other conduct or psychiatric disorder discovered through this battery of questionable discovery is then utilized to stipulate the nurse’s registration. Board Staff is successful in this less than admirable procedure as many nurses think they do not need or can not afford an attorney. Competent, experienced counsel however, can put a halt to this process and mount a successful defense against Board Staff’s position that all criminal conduct is unprofessional and therefore relates to the practice of nursing. Moreover, a knowledgeable attorney will know how to circumvent Board Staff’s insistence that the Nurse undergo an evaluation with a “Board Approved” expert and then submit to the rigors of a “qualifying” polygraph examination.  

The Nursing Practice Act also requires that a license holder maintain good professional character throughout their licensure tenure. Any instance of professional misconduct that, in the Board’s opinion, poses a risk to the public or patients can subject a nurse to a disciplinary sanction. The broad reach of this amorphous standard is utilized by Board Staff in an effort to discipline a nurse where no other statute applies. The final legal force of this rule, however, is restricted by the requirement that criminal convictions must be shown to relate to the practice of nursing in order to sustain a disciplinary action.

An illustration of these two statutes in play can be seen in the 2006 case In the Matter of Charles Stephen Phillips. Here Board Staff initiated disciplinary action against Phillips due to his guilty plea to the felony offense of intoxication assault. Pursuant to the plea agreement Phillips’ prison sentence was probated and he was placed on felony community supervision. The defendant had struck and severely injured a pedestrian while driving home after playing pool and consuming numerous alcoholic beverages. Board Staff sought to revoke Phillips’ license on separate but related theories:

  1. That his felony conviction related to the practice of nursing; and
  2. For committing unprofessional or dishonorable conduct that is likely to deceive, defraud, or injure a patient or the public.

However, after reviewing the facts and testimony of several expert witnesses, the Administrative Law Judge recommended that Phillips should retain his nursing license due to the Board’s failure to connect the unique criminal conduct and the criminal offense of intoxication assault with the practice of nursing. Moreover, the Board’s own expert (a forensic psychologist) determined that the Phillips was not chemically dependent and in fact had quit drinking since the accident. Further, the Board’s position that such conduct was unprofessional and likely to injure the public or patient’s was not substantiated due to Board Staff’s failure to establish a nexus between the criminal offense of intoxication assault and the practice of nursing.

My law firm has tried numerous similar matters. In Debra Ross vs. Board of Nurse Examiners, Board Staff denied the Registered Nurse reinstatement application of Ms. Ross due to four convictions for Driving While Intoxicated. Moreover, Board Staff insisted Ms. Ross was ineligible for licensure because she was on felony probation. Ms. Ross appealed Board Staff’s decision and requested a hearing on the merits at the State Office of Administrative Hearings (SOAH). The Administrative Law Judge (ALJ) recommended that Ms. Ross’ license be reinstated, once again, because of the Nursing Board’s failure to sufficiently relate her conviction to the practice of nursing. In Fact the ALJ made light of Board Staff’s failure to relate Ms. Ross’ criminal conduct of DWI to the practice of nursing through opining:

“Even Assuming one can practice nursing while driving, there was no showing in this case that Applicant was ever intoxicated while practicing nursing, on duty or on call as a nurse. There was no factual nexus established between Applicant’s performance of her professional duties as a nurse and her DWI arrests. Further, the record contains ample, persuasive evidence of her current sobriety."

These cases show that, as a legal matter, many DWI’s will not relate to the practice of nursing: However -this is not always the case. If, for example, a nurse is arrested while coming to or from work or is found intoxicated sufficiently close to their time on duty or on call, this could very well be found to relate to the practice of nursing and result in the discipline of the nurse’s license. Likewise, a finding of alcohol abuse / dependency following an arrest could result in a sanction. This frequently occurs as a result of the pre-trial services and assessment / evaluation process or due to the criminal defense attorney recommending alcohol treatment in an effort to obtain a better plea offer. Evidence of treatment participation is considered by Board Staff as prima facie evidence of a DSM IV diagnosis of chemical abuse or dependence. Criminal defense attorneys would be wise to seek the advice of an experienced administrative law attorney prior to advising a client as to the ramifications of defense strategy and plea bargains on their Client's professional registrations / licenses.