The Texas State Board of Pharmacy (“the Board”) is the state entity responsible for licensing and regulating pharmacists, pharmacy technicians, and pharmacies. The Board receives complaints about pharmacists who have allegedly violated the laws and rules that govern their profession. The Board can take various types of disciplinary action against the pharmacist if sufficient evidence of a violation exists. Disciplinary action can result in severe sanctions for a pharmacist.
Having experienced legal counsel on your side throughout any disciplinary proceedings before the Board can be crucial to protecting your professional license. Legal representation can be essential to reach a positive outcome in your case. As a result, if you are facing a complaint before the Board, you should consult a pharmacist license defense attorney for help.
Potential Sanctions in TSBP Disciplinary Proceedings
Under Tex. Occ. Code §565.051, the TSBP can impose a number of disciplinary actions, including:
- License revocation or suspension;
- Restriction(s) to prohibit a licensee from performing certain acts or from practicing pharmacy or operating a pharmacy in a particular manner for a term and under conditions determined by the board;
- Refusal to issue or renew a license;
- Placement of the licensee on probation and supervision by the TSBP for a period determined by the board and require the license holder to:
- Report regularly to the board on matters that are the basis of the probation;
- Limit practice to the areas prescribed by the TSBP;
- Continue or review professional education until the licensee attains a degree of skill satisfactory to the TSBP in each area that is the basis of the probation; or
- Pay the TSBP a probation fee to defray the costs of monitoring during the period of probation;
- Assessment of an administrative penalty;
- Reprimand the licensee; or
- Retire the license.
The TSBP may impose more than one of the sanctions listed above for a violation of the laws or rules that govern licensees.
Disciplinary Sanctions for Criminal Offenses
22 Tex. Admin. Code §281.64 outlines the sanctions for licensees who commit certain criminal offenses. These sanctions apply whether a licensee has a criminal conviction, deferred adjudication community supervision, or a deferred disposition. Additionally, TSBP may impose the sanctions provided in this section in conjunction with other sanctions.
Sanctions based on criminal offenses fall within three major categories: offenses that require registration as a sex offender with the Department of Public Safety, felony offenses, and misdemeanor offenses. Offenses that require sex offender registration will result in the denial or revocation of a license, as applicable. Sanctions for other offenses vary based on the nature and severity of the offense. If a licensee has more than one criminal offense or other violations, they are likely to be subject to more severe sanctions. Furthermore, if a licensee suffers from an impairment such as substance abuse or mental health condition, they may provide mitigating information, such as treatment, counseling, and monitoring to mitigate the sanctions assessed.
Felonies
Sanctions for felonies are based on the type of felony involved and how much time has passed since the date of disposition of the criminal case. For instance, drug-related offenses, such as those listed in Tex. Health and Safety Code, Chapter 481 or 483, are subdivided into the following categories:
- Offenses involving manufacture, delivery, possession with intent to deliver, or illegal dispensing;
- Personal use of the drugs or alcohol and/or chemical impairment;
- Uses other than personal use of the drugs or alcohol and/or chemical impairment; and
- Offenses involving possession of drugs, fraudulent prescriptions, theft of drugs, or alcohol.
Non-drug-related offenses fall within two other categories:
- Offenses involving sexual contact or violent acts, or offenses considered to be felonies of the first degree under the Texas Penal Code; and
- Other felony offenses.
These offenses generally will result in the denial or revocation of a licensee if the individual is still on probation, except for personal use of the drugs or alcohol and/or chemical impairment. Otherwise, the sanctions generally depend on how long it has been since the date of disposition of the criminal offense. For instance, for an offense involving manufacture, delivery, possession with intent to deliver, or illegal dispensing, TSBP will deny or revoke a license until at least 10 years have passed since the date of disposition. If the offense is more than ten years old, then TSBP will place the individual on probation, for five years if the offense is less than 20 years old, or for three years if the offense is more than 20 years old.
Misdemeanors
The section of the statute that addresses sanctions for misdemeanors also divides the sanctions into categories based on the type of offense and length of time that has passed since the date of disposition. These categories include:
- Drug-related offenses;
- Offenses involving manufacture, delivery, possession with intent to deliver;
- Offenses involving possession of drugs, fraudulent prescriptions, or theft of drugs;
- Intoxication and alcoholic beverage offenses as defined in the Texas Penal Code, if two such offenses involving intoxication due to ingestion of alcohol occurred in the previous five years or if one such offense involving intoxication due to ingestion of controlled substances or dangerous drugs occurred in the previous five years; and
- Other misdemeanor offenses involving moral turpitude.
Schedule of Administrative Sanctions
22 Tex. Admin. Code §281.65 provides a schedule of administrative sanctions or monetary penalties that may apply in TSBP disciplinary proceedings. Potential administrative sanctions range from $250.00 to $5,000.00 and depend on the type of violation involved. TSBP may assess administrative penalties instead of or in addition to other sanctions in disciplinary proceedings.
Determining Sanctions in TSBP Disciplinary Proceedings
22 Tex. Admin. Code §281.62 sets forth aggravating and mitigating or extenuating factors that TSBP may consider in determining the appropriate 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 that serves as a basis for disciplinary action under; and
- violation of a TSBP order.
TSBP also may consider the following mitigating or extenuating circumstances:
- 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 that serves as a basis for disciplinary action;
- the remoteness of misconduct, when not based on delay attributable to actions by the licensee;
- the extent to which the respondent cooperated with the TSBP 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 §§565.001(a)(4) and (7) of the Act; and
- if acting as pharmacist-in-charge, the licensee 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.
We Can Advocate on Your Behalf in Disciplinary Proceedings
The pharmacist license defense lawyers of Bertolino LLP are here to guide you throughout the disciplinary complaint process. No matter the allegations you may be facing, we can work to protect your interests and work to minimize the negative effects of a complaint on your license and career. Our goal is to help you resolve the allegations against you and maintain your pharmacist license. Call us today at (512) 980-3751 to reach the offices of Bertolino LLP or contact us online.
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