Most pharmacies and pharmacists targeted for an investigation by the Texas State Board of Pharmacy can expect to receive an invitation to an informal conference at some point during their case. At the informal conference, the license holder and their attorney meet with a Board panel to answer questions and present their defense to any alleged violations of the Texas Pharmacy Act.
From the perspective of the pharmacy or pharmacist, the goal of the informal conference is to either convince the panel to recommend dismissal of the case to the full Board or, if this is not possible, persuade the panel to recommend an otherwise favorable settlement. While the pharmacy or pharmacist is not bound to the panel’s recommendation and is still entitled to the full hearing process and possible mediation through the State Office of Administrative Hearings, in my experience most cases with the Pharmacy Board resolve through the informal conference process.
Previously, licensees attending an informal conference with the Pharmacy Board appeared before a panel consisting of a single Board member, the Board’s executive director, the Board’s director of enforcement, and the Board’s general counsel. The single Board member could be a pharmacist or a public (non-pharmacist) member. With only a single Board member present—who may or may not be a pharmacist—most of the licensee’s and their attorney’s interactions with the Panel occurred with the three high-level Staff members: the executive director, director of enforcement, and general counsel. This varied according to the individual personality of the Board member and whether they had a solid background in pharmacy and the specific issues at hand.
The Pharmacy Board recently changed their informal conference format so that there are always two Board members present, at least one of whom is a licensed pharmacist. The Board’s director of enforcement is no longer part of the informal conference while the executive director and general counsel remain participants. This seemingly small change alters the dynamics of the informal conference as the Board members are now much more front and center in the process. More of the questions come from the Board members and interactions with them tend to occupy the majority of the conference. The addition of a second Board member also guarantees a licensee will appear before at least one pharmacist who should have some familiarity with any practice issues important to the case.
In my opinion, the presence of two, as opposed to one, Board members in the informal conference results in a better process. From the perspective of the pharmacy or pharmacist, it increases the likelihood of a dismissal or recommendation individually tailored to the facts of the case and the licensee’s specific circumstances. As a defense attorney I favor this change as it largely leads to better outcomes and is more likely to give clients the feeling they have received a fair opportunity to present their case. In contrast, informal conference processes that are primarily or exclusively Staff driven have a more rigid set of pre-determined results as Staff understandably believe their job is to faithfully implement broad Board disciplinary policies that are aimed at general categories of violations rather than specific facts or circumstances. In contrast, Board members possess more leeway to recommend dismissal or a non-standard result. They are also better positioned to advocate for their recommendation when it is considered by the full Board.
Any pharmacist or pharmacy who has been invited to an informal conference with the Texas State Board of Pharmacy should promptly consult with an attorney. Because most cases resolve though an informal conference process it is important to not put off speaking with an attorney until after the conference. By this time the client may have already unknowingly damaged their case or made it more difficult to obtain a better result without the time and expense of going to trial.