Alcohol and Drug Abuse, Physician Health Program, Mental Health Issues, and Peer Assistance Matters


Michael Sharp was the first Director of the State Program on Drug Abuse under Governor Dolph Briscoe in 1973. From his task of obtaining federal funds for drug treatment, to identifying effective treatments for the exploding Viet Nam Era drug problem, he and members of the Firm have been actively engaged in advising clients as to drug and alcohol issues. Firm members also commonly advise and represent individuals who may suffer from physical or mental health conditions, which may also be reviewed by licensing agencies and may be grounds for action by agencies.

Michael Sharp, along with others in this field, successfully urged the Texas Medical Board (then the Texas State Board of Medical Examiners) to seek from the Texas Legislature a means to address substance abuse as well as other mental health and physical impairments without the taint of disciplinary action and public Orders. At that time the Texas Legislature did provide an exception to the public Order requirement that allowed physicians suffering from drug or alcohol disease or other conditions to self report conditions and to have an opportunity for a “non-disciplinary non-public” Agreed Rehabilitation Order.

Subsequently, in 2009 the Texas Legislature passed Senate Bill 292 authorizing creation of the Texas Physician Health Program (“PHP”). PHP was created as an adjunct agency to the Medical Board and as a confidential mechanism for physicians, physician assistants, and acupuncturists to self-report substance abuse or mental health or physical conditions. However, the Board may also refer any investigation case matter to PHP for further assessment and/or monitoring. This referral from the Board to PHP commonly occurs when a licensee reports on a renewal application an arrest for an alcohol or drug charge or other issue concerning a possible mental health or physical issue.

Under PHP a participant is usually required to conduct an interview with the PHP director. In most cases the participant will be required to undergo a further independent evaluation to assess the nature of the illness or condition, whether further or additional treatment is necessary, and to assess whether the licensee may safely practice and under what conditions. In situations warranting monitoring by the PHP, which may include random alcohol/drug screens, continued psychiatric or other professional care, attendance at AA/NA meetings, and a workplace monitor to periodically report to the PHP, a “contract” for a period of years is offered to the participant. If the terms of the contract are not acceptable to the participant, the matter is then referred back to the Board for possible further action, which may be of a public nature if fully pursued. PHP does not consider terms of an offered contract negotiable. Furthermore, communications or documentary materials kept by PHP are considered confidential and not released to the participant.

While the PHP program has many positive aspects to participation in a confidential manner, especially to licensees in recovery, a licensee should be aware of the legal and factual limitations of the program and should always seek legal counsel as to participation and whether to self report or after referral to the PHP by the Board. PHP is in fact administratively attached to the Texas Medical Board and communications between and to/from the entities does occur, especially as to issues regarding compliance with the program. Furthermore, if a licensee does not in fact suffer from a substance abuse or medical condition warranting evaluation or monitoring, responses to the Board or PHP may have unintended negative and long term consequences to the licensee.

Nurses, pharmacists and dentists and other health care professionals also have certain  opportunities for assessment and treatment outside the agency disciplinary arena through peer assistance programs. However, cases may be referred back to the agency for lack of compliance with a peer assistance program or if a practitioner disputes an allegation of impairment or abuse.

Members of the Firm have extensive dealings with these issues, both from working inside the agencies as well as in private practice. A substantial number of cases involving these issues are continuously handled by our firm. We are experienced in the issues involving substance abuse versus addiction, dependency, relapse issues and effective recovery treatments and programs. We have worked closely with treating professionals and are knowledgeable about the attendant issues very often associated with abuse or addiction (e.g. depression, work stress, ADD/ADHD, family issues).

In many situations, proactively seeking evaluation and/or treatment is preferable to later exacerbation of the matter. For example, practitioners may be faced with a first time arrest for driving while intoxicated, allegations by peer or co-workers of impairment or inappropriate behavior or outbursts or behavioral issues, or adverse family or personal situations which may indicate the need to assess the client’s possible risk of disciplinary or peer review action and to assess whether professional treatment or other action may be advisable. Early assessment within the confidentiality protections of the attorney- client relationship and the privileges from discovery protections may help avoid later disciplinary or peer review actions or help reduce the risk of such action.

A key to effective representation in these matters is the ability of each attorney to adequately counsel a client on the complicated risks and benefits of various courses of action. There is not a strategic formula that fits every client. The only way to effectively advise a client (who may be struggling with perceptual issues as well) is to have a thorough knowledge of the system and practice available at the particular agency that licenses that client, assessing the specific practice situation, and assessing the client’s goals and particular personal and professional situation. We understand that these issues are highly personal; however, the Firm has extensive experience in assessing the preferred course of action. Attorneys with the firm are experienced in finding evaluators and  treatment facilities when appropriate. We also work in conjunction with criminal defense counsel when collateral criminal matters are involved or possible. We are highly sensitive and responsive to our client’s professional and personal needs and goals.