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

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

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.


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I often receive calls from nursing students, or even those only considering pursuing a nursing degree, with questions concerning whether or not they will be licensed by the Board of Nursing. Typically, these individuals have a criminal record, history of misuse of controlled substances, or a mental health diagnosis that they fear will present

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

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.


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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.


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