Disciplinary Proceedings Before the Texas State Board of Pharmacy

As a pharmacist, you can face serious consequences if your licensing board finds that you have violated the rules or laws that govern your profession. Therefore, having a pharmacist license defense lawyer on your side to defend you in disciplinary proceedings before the Texas State Board of Pharmacy (TSBP) can be critical to protecting your career and your professional reputation. By obtaining legal counsel, you will be better positioned to fight back against the severe sanctions you may face in disciplinary proceedings.

How Does the TSBP Handle Complaints?

The TSBP handles complaints against all licensed pharmacy professionals and facilities in the state, including pharmacists, pharmacist interns, pharmacy technicians, and pharmacies. However, the TSBP only investigates and potentially takes disciplinary action against licensees if the complaints allege violations of the Texas Pharmacy Act or Texas drug laws. Other complaints about pharmacy professionals or facilities, such as customer service, pricing, or insurance issues, do not fall within the jurisdiction of the TSBP.

As a result, if TSBP receives a complaint concerning a subject outside its jurisdiction, the agency can dismiss it without further action. However, TSBP also may refer the complaining party to another agency that may have authority over the subject of the complaint.

On the other hand, if the complaint concerns a matter over which the agency has jurisdiction, TSBP will assign an investigator to the complaint. That investigator may contact the complainant to obtain more information and/or gather documentary evidence.

Most complaints involve minor issues resolved with no action by the TSBP or with verbal or written warnings to license holders. In certain cases, the licensee and TSBP can enter a remedial plan. If completed, all record of the complaint and remedial plan is removed. However, some complaints merit disciplinary action by the TSBP.

Disciplinary Action by the TSBP

When the TSBP pursues disciplinary action against a licensee, its initial step usually is to set up an informal settlement conference. License holders should secure legal representation before the informal settlement conference so their attorney can accompany them.?

Informal Settlement Conferences

At the informal settlement conference, the license holder, the attorney, and the TSBP will discuss the issues related to the disciplinary action and the possibility of settling the matter. More specifically, the licensee can present evidence on their behalf and prove that they have complied with all applicable laws.?

After hearing the evidence, a panel of the TSBP, which consists of TSBP staff and two TSBP members, will issue its recommendation for the resolution of the case. Potential forms of resolution could include the following:

• Dismissal;
• Warning;
• A disciplinary sanction, which may include: Public reprimands or censures; License suspension; License revocation; Retirement; or monetary fines.

If the TSBP panel recommends a sanction and the licensee agrees to the recommendation, the two parties will sign a proposed Agreed Board Order (ABO). The full TSBP will then consider the proposed ABO at its next regularly scheduled meeting for approval or denial.??

Administrative Hearings

If the TSBP panel and the licensee cannot agree upon the panel’s recommended sanction, TSBP refers the case to the State Office of Administrative Hearings (SOAH). SOAH will assign an administrative law judge (ALJ) to the case, holding a contested administrative hearing at which both sides will present evidence to support their positions. After the hearing, the ALJ issues a proposal for decision (PFD) that contains the ALJ’s findings of fact, conclusions of law, and proposed disciplinary sanctions based on the evidence presented during the hearing.?

The PFD then goes to the TSBP for consideration. Ultimately, the TSBP decides whether to impose discipline on the licensee and, if so, what discipline is appropriate. Once TSBP issues its final decision, the licensee’s only legal recourse is to appeal that action in state court.

How the TSBP Determines Sanctions

Texas law provides significant guidance on how the TSBP determines sanctions for licensees facing disciplinary proceedings. For instance, 22 Tex. Admin. Code §281.62 outlines the aggravating and mitigating factors that TSBP must consider in issuing sanctions in disciplinary proceedings.?

Aggravating factors include the following:

• extent and gravity of personal, economic, or public damage or harm;
• vulnerability of the patient(s);
• willful or reckless conduct, or as a result of a knowingly made professional omission, as opposed to negligent conduct;
• a pattern of misconduct that serves as a basis for discipline;
• prior disciplinary action(s);
• attempted concealment of the conduct, which serves as a basis for disciplinary action under the Act; and
• violation of a board order.

Mitigating factors include the following:

• an isolated incident that serves as a basis for disciplinary action;
• remorse for conduct;
• interim implementation of remedial measures to correct or mitigate harm from the conduct, which serves as a basis for disciplinary action under the Act;
• the remoteness of misconduct, when not based on delay attributable to actions by the respondent;
• the extent to which the respondent cooperated with the board investigation;
• treatment and/or monitoring of an impairment;
• self-reported and voluntary admissions of the conduct which serves as a basis for disciplinary action under section 565.001(a)(4) and (7) of the Act; and
• if acting as pharmacist-in-charge, the respondent did not personally engage, either directly or indirectly, in the conduct that serves as the basis for disciplinary action; did not permit or encourage, either by professional oversight or extreme negligence, the conduct that serves as the basis for disciplinary action; promptly reported the conduct to the board or other state or federal regulatory authorities or law enforcement upon identifying the conduct that serves as the basis for disciplinary action; and took all reasonable steps to mitigate or remediate the conduct that serves as the basis for disciplinary action.

Administrative Penalties

22 Tex. Admin. Code §281.65 creates a schedule of administrative penalties for violations that may be imposed in addition to other forms of discipline. These penalties can range from $250 to $5,000 per violation. For instance, failing to properly supervise or improperly delegating a duty to a pharmacy technician carries an administrative penalty of $1,000. Dispensing unauthorized prescriptions can result in an administrative penalty of up to $5,000. Failing to maintain the confidentiality of prescription records also can cause a $1,000 administrative penalty.?

Criminal Convictions and Deferred Adjudications or Dispositions

22 Tex. Admin. Code §281.64 provides for certain sanctions if a licensee is convicted of specific criminal offenses or if the licensee receives a deferred adjudication or disposition for one of those offenses. Some specified offenses result in license revocation or suspension, whereas others require a period of probation. For example, a first-degree felony conviction would result in the revocation of a pharmacist license. However, if it has been over 20 years since the disposition of that same offense, the licensee would be subject to one year of probation.?

Defending Your Pharmacist License

When a complaint threatens your ability to earn a living, you should retain a seasoned pharmacist license defense attorney to represent your interests. The sooner you contact an attorney about your disciplinary case, the sooner they can start working on your case.