Formal Investigation Phase
Once a Texas pharmacist or pharmacy licensee has received an initial complaint letter from the Texas State Board of Pharmacy or been visited by a Board investigator, the Pharmacy Board’s investigation is oftentimes already complete. Typically, Board Staff will wait until they have accumulated their evidence and determined that a probable violation of the Texas Pharmacy Act has occurred prior to sending the initial complaint. If the pharmacist or pharmacy’s first Board contact is through an investigator, it is likely the Texas Pharmacy Board has already decided a probable violation has occurred but is still gathering evidence, usually by obtaining harmful statements from the licensee and/or demanding that the licensee sign a medical release.
Regardless, the tactics remain similar to those employed at the initial complaint stage: persuading, frequently through intimidation, the licensee to write a self-incriminating affidavit, obtaining statements from fellow employees, asking a pharmacist to sign an all-encompassing medical release, seizing pharmacy records, etc. Texas pharmacists and pharmacies should also be aware that the Texas State Board of Pharmacy closely coordinates their activities and investigations with the Texas Department of Public Safety, the Drug Enforcement Agency, and state and local law enforcement. These entities freely share information and documents, thereby giving the Pharmacy Board easy access to evidence it would otherwise not be able to obtain. This includes complete patient profiles to show where persons are obtaining their prescriptions as well as the list of the leading pharmacy recipients of controlled substances in a given area. This kind of information and agency coordination is particularly common in non-therapeutic dispensing and diversion cases.
In cases involving allegations of drug abuse or other physical or mental impairment, the Texas Pharmacy Board will usually request that a pharmacist undergo an evaluation with a Board-approved Mental Health Provider (MHP). The Board has contracted out its responsibility to maintain a list of pre-approved providers and make individual referrals to its official peer assistance program, the Texas Professional Recovery Network (PRN). To comply with the Pharmacy Board’s request, the licensee is required to contact PRN, perform an intake interview, and then receive a referral to an appropriate PRN evaluator. A refusal to submit to the evaluation will result in a separate show cause hearing before a panel of the Board where the burden is on the pharmacist to show why they should not be evaluated. Therefore, it is often advisable to employ the services of an experienced Texas license defense attorney in these situations, both for representation and legal advice.
The PRN Evaluation Process
This process is very delicate and full of fatal pitfalls for unassuming pharmacist licensees. All PRN evaluators are not created equal; some of them are much more conservative than others, while other experts may not be a good fit for an individual licensee for personality reasons or because the pharmacist’s case presents unique issues which would be better addressed by an alternate evaluator with an appropriate subspecialty, such as a physician certified in pain management.
The Texas pharmacy board attorneys at the Leichter Law Firm have a good working relationship with PRN and are familiar with many of the evaluators on PRN’s ever evolving list. Our experienced pharmacist licensing lawyers can almost always work with PRN to find a conveniently located evaluator who everyone can agree will give a fair and cogent evaluation. We have seen many, many cases where an unrepresented pharmacist will undergo an evaluation with a poorly chosen MHP and receive a bad report. By then, their case has likely already been irreparably damaged with the end result being a burdensome Board Order or worse.
The close of the Texas Pharmacy Board’s formal investigation is usually signaled by the scheduling of an informal settlement conference and, in rarer instances, a temporary suspension hearing. Both of these proceedings are discussed in great detail on their own pages. By this point, Board Staff believe they have the evidence necessary to establish a violation of the Texas Pharmacy Act and are ready to present it to an informal settlement conference panel with the pharmacist or pharmacy in attendance to respond.
If a Texas pharmacist or pharmacy has not yet sought legal counsel, we strongly urge licensees to seek out experienced legal advice once it is learned they are subject to a Board investigation. The Pharmacy Board has their own team of attorneys and experienced investigators and may even be receiving assistance from outside agencies. The Texas State Board of Pharmacy is an aggressive agency and will typically seek a Board Order in even marginal cases. The stakes are too high and there are too many possible fatal mistakes to justify going it alone and wishing for the best. If you are facing a Board investigation, contact the Texas license defense attorneys of the Leichter Law Firm today at 512-495-9995.