Temporary Suspension Hearings
Although infrequently exercised, the Texas State Board Pharmacy possesses the authority under the Texas Pharmacy Act to temporarily suspend or restrict a pharmacist or pharmacy’s license. This provision of the Act allows a three member panel of the Pharmacy Board to immediately suspend or restrict a licensee if their continued licensure would “constitute a threat to the public welfare.”
The temporary suspension hearing can be held either with or without notice to the license holder. However, traditionally the Board does provide advanced notice to the pharmacist or pharmacy. If the Texas Pharmacy Board provides advanced notice, the licensee is only entitled to know ten days prior to the scheduled hearing date. In the event a licensee is temporarily suspended or restricted, they are entitled to a full trial before an Administrative Law Judge at the State Office of Administrative Hearings within 90 days, as otherwise the suspension or restriction is automatically lifted. It is frequently necessary to pursue the services of a qualified Texas license defense attorney at this stage to ensure the best possible outcome.
How Temporary Suspension Hearings Work
At the hearing, a Texas Pharmacy Board attorney will present evidence and testimony to the Board panel as to why the pharmacist’s practice or pharmacy’s continued operation poses a threat to the public. The licensee and their administrative law attorney are allowed an opportunity to cross-examine the Board Staff’s witnesses as well as present their own evidence and witnesses.
In most cases, Board Staff will submit pharmacy records and call a Pharmacy Board investigator to testify about what they have found in the course of their investigation. At the close of the hearing, which takes place over a single day, the Texas Pharmacy Board Panel will vote on whether to temporarily suspend or restrict the pharmacist or pharmacy’s license.
The outcome of a temporary suspension hearing is typically biased in favor of the Pharmacy Board. To win, Board Staff need only convince two of the three Board members that the licensee’s continued practice or operation would pose an ongoing danger. Because the Pharmacy Board members are naturally more inclined to accept the representations of Board Staff than those of the accused pharmacist or pharmacy owner, a temporary suspension hearing does not provide the same protections and equal playing field of a trial at the State Office of Administrative Hearings before an independent Administrative Law Judge. Additionally, the Pharmacy Board panel, which may or may not include a lawyer, is more likely to admit and consider evidence and testimony which would not be allowed at a normal trial.
Common Causes for Temporary Suspension Hearings
The most common cases in which the Texas Pharmacy Board Staff will schedule a temporary suspension hearing are those involving allegations of serious pharmacy-related criminal behavior, dispensing medications with no valid therapeutic purpose, and impaired pharmacists who have been deemed unsafe to practice.
Given the increased scrutiny focused on pain clinics and doctor shopping, the Texas Pharmacy Board has dedicated more and more of its temporary suspension hearings to target pharmacists and pharmacies it feels are dispensing medications pursuant to invalid prescriptions. These often occur in conjunction with criminal charges pursued by local law enforcement and the Drug Enforcement Administration.
A temporary suspension is devastating to both a pharmacist and pharmacy. Being temporarily suspended effectively removes a licensee from practice or operation for at least five months and likely more, given the time it takes for a SOAH hearing and final decision by the full Pharmacy Board. The only other recourse is an immediate appeal to Travis County District Court ,which itself is an expensive and time consuming process. Furthermore, a temporary suspension will cause a pharmacy to lose its DEA and DPS registrations. Texas Pharmacy Board Staff are well aware that temporarily suspending a pharmacy can effectively put it out of business regardless of the case’s final resolution.
Any pharmacy or pharmacist in receipt of a temporary suspension notice from the Texas State Board of Pharmacy should immediately contact an pharmacy board attorney. The short notice period provides little time to adequately prepare and most licensees are unaware of their right to request a copy of Board Staff’s evidence prior to the hearing. The attorneys at the Leichter Law Firm have successfully tried temporary suspension hearings before the Texas State Board of Pharmacy, Texas Medical Board, and Texas Board of Nursing. Our Texas license defense lawyers have the experience necessary to guide both you and your case through this high stakes situation with an eye to the best possible outcome for your pharmacist license and business. Contact us today at 512-495-9995.