Doctors and other medical professionals who have the authority to write prescriptions have significant responsibilities under state and federal law. Findings of misconduct related to writing prescriptions can lead to a denial of license renewal, disciplinary proceedings against your medical license, and other severe consequences. Therefore, having a medical professional license defense attorney on your side can make a significant difference in the outcome of your case.
Under Texas law, doctors can prescribe medications for their patients, as well as delegate their prescriptive authority to advanced practice professionals, such as physician assistants (PAs) and advanced practice registered nurses (APRNs). This delegation is subject to some limitations, depending on the practice setting. Both doctors and the advanced practice professionals must follow state and federal laws concerning prescribing medications for patients. The Texas Medical Practice also requires that physicians provide adequate supervision for those advance practice professionals to whom they delegate their prescriptive authority. As a result, failure to follow these laws and requirements could lead to disciplinary action for these medical professionals.
Texas Prescription Monitoring Program
Under 22 Tex. Admin. Code §170.9, before and every time physicians and advanced practice professionals prescribe four types of prescription drugs – opioids, benzodiazepines, barbiturates, or carisoprodol – they must check a patient’s prescribing history under the Texas Prescription Monitoring Program (PMP). They also must document their PMP in the patient’s medical records in a contemporaneous, legible, and complete manner.
The only exemptions to this rule are for patients with documented cancer diagnoses or sickle cell disease, those receiving care from a licensed hospice provider, or when the prescriber makes a good faith attempt to comply but cannot do so due to circumstances outside of their control. PMP checks are also not needed for patients before and during inpatient stays, or during outpatient encounters, such as at an emergency room or outpatient surgery center.
Failure to comply with the PMP can result in disciplinary action against a physician’s license or that of an advanced practice professional. Furthermore, since a physician is ultimately responsible for supervising advanced practice professionals to whom they have delegated their prescriptive authority, physicians also could face disciplinary action for failure to properly supervise staff members.
Prescribing Drugs in a Manner Inconsistent with Public Health and Welfare
Medical professionals also violate the Texas Medical Practice Act (“the Act”) under 22 Tex. Admin. Code §190.8 when they practice in a manner that is inconsistent with public health and welfare. Some of the provisions in this section that are violative of the Act include:
- prescription or administration of a drug in a manner that is not in compliance with the Standards for Physicians Practicing Complementary and Alternative Medicine or, that is either not approved by the Food and Drug Administration (FDA) for use in human beings or does not meet standards for off-label use, unless an exemption has otherwise been obtained from the FDA;
- prescription of any dangerous drug or controlled substance without first establishing a valid practitioner-patient relationship, subject to some exceptions;
- inappropriate prescription of dangerous drugs or controlled substances to oneself, family members, or others in which there is a close personal relationship that would include the following:
- prescribing or administering dangerous drugs or controlled substances without taking an adequate history, performing a proper physical examination, and creating and maintaining adequate records; and
- prescribing controlled substances in the absence of immediate need. “Immediate need” shall be considered no more than 72 hours.
Potential Sanctions for Prescription Drug-Related Violations
22 Tex. Admin. Code §190.14(9) provides a matrix containing a range of disciplinary sanctions for different violations of the Act. Some of the sanctions included are for violations related to prescribing drugs, as follows:
- Failure to maintain drug logs – Sanctions range from a remedial plan requiring the completion of 8 hours of ethics/risk management education and a $500 fine to an agreed order providing for a public reprimand, 8 hours of education, a $2,000 administrative penalty, and completion of a jurisprudence exam.
- Failure to adequately supervise subordinates and improper delegation – Sanctions range from a remedial plan requiring 12 hours of supervision and delegation CME, development and furnishing of delegation orders, and a $500 fine to an agreed order with low category sanctions, plus practice monitoring, no delegation or supervision authority, a $2,000 administrative penalty, and completion of a jurisprudence exam.
- Improperly prescribing controlled substances, creating adequate records, taking an adequate history, or performing an adequate physical exam – Sanctions range from an agreed order requiring 8 hours of recordkeeping or risk management CME and 8 hours of prescribing controlled substances CME and completion of jurisprudence exam to an agreed order with low category sanctions, plus a public reprimand, restrictions on practice and prescribing controlled substances, and an administrative penalty of $3,000 per violation. If it is an isolated instance, the TMB will consider a remedial plan as opposed to an agreed order.
- Improperly prescribing dangerous drugs, creating adequate records, taking an adequate history, or performing an adequate physical exam – Sanctions range from a remedial order requiring 8 hours of recordkeeping or risk management CME and completion of jurisprudence exam to an agreed order with low category sanctions, plus a public reprimand, restrictions on practice and prescribing dangerous drugs, and an administrative penalty of $2,000 per violation.
We Will Stand Up for Your Rights and Fight for Your License
You can count on the experienced medical license defense lawyers at Bertolino LLP, to defend you when you receive notice of disciplinary action against your license. We will investigate the circumstances that led to your disciplinary proceedings and devise the best strategy for your case. Together, we will work to clear your name and ensure that your medical license remains intact. Call us at (512) 515-9518 or contact us online.
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