New Jersey’s Proposed Medical Marijuana Act Amendments

Pennsylvania’s Medical Marijuana Act details in excruciating detail the prescribing limits placed on physicians (the only allowed prescribers). New Jersey’s MMA differs from Pennsylvania at the outset by not limiting prescribers to physicians.  Any medical professional with DEA prescribing authority may dispense Medical Marijuana.
This blog discusses NJ’s proscriptions against all NJ health care professionals who chose to dispense marijuana and patient card holders.  Importantly, the first significant rule is that the list of list of the persons to whom it has issued registry identification cards and their information contained in any application form, or accompanying or supporting document shall be confidential, and shall not be considered a public record and shall not be disclosed except to confirm the legality of their pot possession. Applying for a registration card does not waive physician-patient confidentiality.
As for dispensing health care professionals, a health care practitioner shall not be required to be listed publicly in any medical cannabis practitioner registry as a condition of authorizing patients for the medical use of cannabis.
When authorizing a qualifying minor patient who is a minor for the medical use of cannabis, if the treating health care practitioner is not a pediatric specialist, the treating health care practitioner shall, prior to authorizing the patient for the medical use of cannabis, obtain written confirmation from a health care practitioner who is a pediatric specialist establishing, in that health care practitioner’s professional opinion, and following an examination of the minor patient or review of the minor patient’s medical record, that the minor patient is likely to receive therapeutic or palliative benefits from the medical use of cannabis to treat or alleviate symptoms associated with the patient’s qualifying medical condition. If the treating health care practitioner is a pediatric specialist, no additional written confirmation from any other health care practitioner shall be required as a condition of authorizing the patient for the medical use of cannabis.
No authorization for the medical use of cannabis may be issued by a health care practitioner to the practitioner’s own self or to a member of the practitioner’s immediate family.
These are important but very liberal provisions.  Any health care professional may write a prescription for medical marijuana.  Confirmation of a medical condition that is LIKELY to receive therapeutic or palliative benefits for marijuana is the medical burden.  Pennsylvania comparative provision is significantly more stringent.  Similar to Pennsylvania, health care professional can not prescribe pot to themselves or their family.
Ownership of a Medical Marijuana dispensary is a significant legal issue. In Pennsylvania, physicians can not have any owership interest in any verticle aspect of the marijuana manufacturing, production, or supply chain. In NJ, this is extremely different.
Except as provided in subsection b. of this section, no health care practitioner who has authorized a patient for the medical use of cannabis pursuant to within the past 90 days, and no member of such health care practitioner’s immediate family, shall be an interest holder in, or receive any form of direct or indirect compensation from, any medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant.
If the health care professional does not prescribe marijuana, they CAN have an ownership interest.
Nothing in subsection a. of this section shall be construed to prevent a health care practitioner from serving on the governing board of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, or on the medical advisory board of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant established pursuant to section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill), or from receiving a reasonable stipend for such service, provided that:
(1) the stipend does not exceed the stipend paid to any other member of the governing board or medical advisory board for serving on the board; and
(2) the amount of the stipend is not based on patient volumes at any medical cannabis dispensary or clinical registrant or on the number of authorizations for the medical use of cannabis issued by the health care practitioner pursuant to P.L.2009, c.307 (C.24:6I-1 et al.).
c. A health care practitioner, or an immediate family member of a health care practitioner, who applies to be an owner, director, officer, or employee of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, or who otherwise seeks to be an interest holder in, or receive any form of direct or indirect compensation from, a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, shall certify that the health care practitioner has not authorized a patient for the medical use of cannabis pursuant to P.L.2009, c.307 (C.24:6I-1 et al.) within the 90 days immediately preceding the date of the application.
In almost every jurisdiction, use and possession of medical marijuana can and is a basis from professional disciplinary action.  Showing up high to work, for any reason, or being charged with driving under the influence of pot triggers professional license disciplinary actions.  Under the proposed legislation, the new law try to change this!
b. A qualifying patient, designated caregiver, institutional caregiver, health care facility, medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, health care practitioner, academic medical center, clinical registrant, testing laboratory, or any other person acting in accordance with the provisions of the new law shall not be subject to any civil or administrative penalty, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, related to the medical use of  cannabis as authorized under the bills (pending before the Legislature as this bill).
c. Possession of, or application for, a registry identification card shall not alone constitute probable cause to search the person or the property of the person possessing or applying for the registry identification card, or otherwise subject the person or the person’s property to inspection by any governmental agency.
d. The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of  cannabis determined to exist by the commission, shall not apply if a qualifying patient, designated caregiver, or institutional caregiver has in his possession a registry identification card and no more than the maximum amount of usable  cannabis that may be obtained in accordance with section 10 of P.L.2009, c.307 (C.24:6I- 10).
e. No person shall be subject to arrest or prosecution for constructive possession, conspiracy, or any other offense for simply being in the presence or vicinity of the medical use of cannabis as authorized under the bills pending before the Legislature as this bill.
Shall not alone constitute probable cause. These are the operative words. Simply using medical marijuana for a proper therapeutic or palliative need will not trigger a disciplinary investigation. Showing up at work smelling of pot and attempting to perform as a medical professional will cause problems. Work place reports, medical mistakes, criminal charges of driving while high (in any jurisdiction) are additional facts New Jersey’s licensing board will and can consider. They can not ignore “additional facts”. That is why the statute says “shall not alone constitute probable cause.”
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Physician Employment Contracts and Licensee Disciplinary Actions

I spend a majority of my time helping medical professionals secure and keep their professional license. Recently, a physician contacted me to discuss his group practice employment contract and his hospitalist job. Reviewing his employment contract enlightened me on numerous ways a single licensing issue can impact medical professionals’ employment and future employability.

Standard medical group and hospital employment contracts include the following terms to which physicians shall comply:
1.1. At all times engage in the practice of medicine, specializing in ******, and diligently perform all of the normal and customary functions of a physician with such specialty, and ensure that the services of others over whom he has responsibility are at all times at a level of competence that, at a minimum, is recognized as acceptable in the community served by the Department (the “Community”) and at a standard that is acceptable under the applicable Governing Policies and in the Hospital Contract), all applicable legal and accreditation statues, regulations, standards, and requirements, and other recognized professional standards in the Community.

This paragraph is a catch all scope and competence to practice requirement. It is based upon the local practices in the region, not necessarily the training and experience learned in medical school. Competence is also based upon group community peers and their biases and long held beliefs.

1.2. Perform such other and additional duties and functions for and on behalf of Corporation reasonably relating to the planning, management and operation of Corporation’s activities, as shall be assigned to him from time to time by Corporation; 1.3. Perform any and all duties required of, or assigned to, Physician under the Hospital Contract; 1.4. Comply with all policies, standards and procedures of Corporation which Corporation may, from time to time, reasonably promulgate and, as required in its’ discretion, amend;

1.5. Render all services with competence, efficiency and fidelity, and comply with the ethical precepts of his profession at all times.

These clauses focus on how hard can the group or hospital make the physician work, to the groups’ partner’s satisfaction. “Any and all” duties or “all” policies allows the group or medical corporation to impose their will and practices on the physician. Conformity and compliance are the norm. To wear the White Coat getting along to go and get along is the norm. Weekends, holidays, and midnight shifts are necessary and the norm.

1.6. Without limiting the foregoing:

1.6.1. Continuously be duly qualified to perform the radiology services required of him under this Agreement and the Hospital Contract;

1.6.2. Continuously maintain his license, and be in good standing, to practice medicine in the Commonwealth of Pennsylvania;

1.6.3. Continuously possess a valid narcotics license, as issued by the Drug Enforcement Administration (“Narcotics License”);

1.6.4. Continuously maintain his board eligibility in radiology and, within two years, achieve and maintain board certification by successfully completing and passing the Certifying Examination from the American Board of ________ (“Board Certification”);

1.6.5. At all times comply with the policies, rules and regulations of any and all governmental authorities relating to the licensure and regulation of physicians and _________;

1.6.7. Continuously maintain full privileges at the Hospital, and continually maintain membership on the Active Medical Staff (the “Medical Staff”) of the Hospital in the Department;

1.6.8. Abide by and be subject to the bylaws, rules, regulations, policies and procedures of the Hospital, the Medical Staff, and the Department (the “Governing Policies”);

These clauses speak for themselves. A single criminal or disciplinary investigation creates a domino affect. Prescription Drug Monitoring Program (“PDMP”) violations and/or fraud diversion investigations trigger qualification challenges under each provision. A criminal investigation (not conviction) could affect medical staff privilege issues and/or constitute a violation of the employer’s separate Bylaws and governing policies. DEA issues affect prescription writing capabilities. A criminal conviction (as compared to an investigation) will ripple through and trigger these provisions.

Call me before participating in any criminal investigation of your medical practice or individual license. The physician employee must provide annual or semi-annual truthful information regarding any licensing or other criminal involvements whether it involves a license or not. For example: a DUI charge or spouse abuse/domestic assault charge. Be very careful what you say to whom about what investigation. I have represented numerous physicians in non-work related criminal investigations that did not result in criminal charges only because of my involvement early in the process. Sometimes, here, the truth and just talking to “take care of things” is not the correct process!  You always have something to hide!  Do not talk to anyone without consulting me.

In drug use impairment investigations, proceeding carefully and with counsel is even more important. Referrals to Pennsylvania or New Jersey’s Physician’s Assistance Program (“PAP”) is a gray area. It is not an investigation and it is not a criminal conviction. Call me. The VRP-PAP Referral Letter  A PAP referral is not from Pennsylvania’s Medical Board. A PAP referral is confidential and is not communicated to the Medical Board. Do not disclose any PAP communications with your medical group practice administrator! Professional License Issues

What should a physician do if he/she receives a confidential voluntary recovery program referral. Read many of my other webpages and Blogs on what is the VRP. The Disciplinary Process Referral A VRP referral is much different than a confidential petition filed compelling an evaluation. Voluntary enrollment in the monitoring program will automatically restrict a physician’s ability to write prescriptions, hold a DEA license and participation in many insurance contracts, Boards, and federal insurance programs. DO NOT listen to the lies of the PAP case worker or manager who says you may be able to continue working.  Seriously consider the ramifications of a PAP, VRP enrollment. The Medical License Issue
If the Board files a Petition Compelling a Mental and Physical Evaluation, there still is no disciplinary action. Do not tell your work! If the Board expert concludes no impairment, or the prosecution does not file a petition after a referral, then the case is over. Telling your employer too early in the investigation will trigger consequences that are unnecessary.

If the Board’s PHMP approved expert concludes you are unable to safely practice medicine due to a drug or alcohol addiction, which continues, and impairs your ability to practice, this still is not a disciplinary action . The Board prosecutor must file the petition, there must still be a hearing, and that expert must come to court and testify.

If there is a final Medical Board order compelling enrollment in a drug monitoring program, what does this mean. Only after a full hearing and the medical board issuing a Final Adjudication and Order is there a formal disciplinary order. The same process must be complied with for any other basis before a final board order triggers each of the above sections of the contract. Then enrollment is necessary to comply with this contract.
1.6.9. Continuously be empanelled to be paid for services by, and remain in good standing with, Medicare, Medicaid, the health maintenance organization maintained by Blue Cross/Blue Shield of Northeastern Pennsylvania, and any other payors identified by Corporation and/or the Hospital, or as otherwise required by Corporation and the Hospital contract or agreement.

1.6.10. Sign participation agreements with, and provide true and accurate information for his credentials as required for participation in the, Medicare and Medicaid programs and any other insurance programs required by Corporation and Hospital, and agree to be reimbursed in connection with such programs in accordance with the Hospital Contract;

1.6.11. Serve on such medical and administrative committees of the Hospital to which Physician is reasonably assigned, and perform such additional administrative duties as are required by Corporation and the Hospital;

1.6.12. Assist in developing and conducting medical education programs in radiology as reasonably required by the Hospital, and participate as needed in existing educational programs of the Hospital, as required by Corporation and the Hospital;
A physician under any restricted license will not be invited to participate in any of the above committees, boards, or programs. These provisions allow employment termination/contract termination for just about any conduct or activity that results in even a minor blemish on the group or hospital contract.
Call me to discuss your case!!

Medical Marijuana — Statistics, Reality, and Your Professional License

On November 12, 2018 the Philadelphia Inquirer reports with fanfare there are 84,000 Pennsylvanians registered as medical marijuana patients. The article emphasizes medical marijuana is not treating the medical condition stated on the licensee’s card. Rather it is used to control medical symptoms of the 21 different serious medical conditions. Importantly, medical marijuana is replacing opiates to control pain and other disruptive physiological manifestations that originate from a diagnosed medical condition. This is success.

Medical marijuana is not treating the underlying medical condition. For example, the nausea, anxiety, insomnia, and pain from cancer. PTSD, cancer, bowel diseases, and opiate-use disorder are the most common medical conditions.

Pennsylvania limits THC delivery mechanisms. Smoking marijuana buds or flower gives a THC affect that lasts several hours. Ingesting THC oils takes an hour to “work” but lasts 3 to 4 hours. Eating THC edibles (brownies, gummy’s, crackers or other items) lasts 8 to 10 hours after an hour delay.

The import of these statistics and the divergent time periods the THC “high” lasts cannot be overstated. One fact is clear; at least 84,000 people are driving under the influence of marijuana in the Commonwealth of Pennsylvania. This is because having any level of THC in one’s blood and operating a motor vehicle is a crime. Driving under the influence of marijuana is a violation of 75 Pa. C.S.A. 3802D. Pot and a DUI Charge.  My prior blogs on what is a DRE a pot DUI and those issues are going to surface more and more every day.The DUI, a DRE and a Letter of Concern.

Pennsylvania licensees requiring medical marijuana to treat the symptoms of a medical condition will be working with THC in their bloodstream. In essence, these licensees are coming to work high. They are either under the short or long term affect of marijuana. Workplace related to drug tests will reveal marijuana in the licensee’s blood. This will generate an automatic referral to a prospective respective licensing board for investigation.

There is no Family Medical Leave Act or American With Disabilities exception under the medical related licensing regulations in the Commonwealth of Pennsylvania. Testing positive for pot based upon a diagnosed medical condition could result in The Mental and Physical Evaluation which concludes a licensee is unable to safely practice their profession due to a marijuana addiction. The addiction stems from the medical need similar to an opiate addiction which began after a traumatic or significant pain related event or medical procedure.

Call me to discuss your case. The statistics do not bode well for Pennsylvania Pot card holders who are also licensees in the medical profession. In this opiate-addicted overdose environment, the Pennsylvania medical related boards are now vigilantly investigating and prosecuting medical marijuana users who the boards think are masquerading as competent and capable professionals who are in fact addicted to pot.

PNAP — A New Scare Tactic

A new client recently contacted me regarding a puzzling PHMP/VRP letter he received. After a first offense DUI, the VRP contacted him and scared him to attend an initial evaluation.  The Initial Evaluation    As I have said many times, the PHMP’s “Letter of Concern” is a lie. The PHMP is not concerned. The Letter of Concern.

 

After attending the evaluation, the PHMP caseworker began aggressively pushing this nurse about what to do next. It should have been nothing. It was not.

The VRP sent a second letter offering more care and treatment because “the drug and alcohol evaluator was unable to rule out that you suffer from a drug or alcohol addiction or impairment…” This means the evaluator did not diagnose my client as suffering from any condition that impairs his ability to practice his profession safely. The PHMP/VRP file should be closed after this opinion was rendered. This is a false diagnosis.  “Unable to rule out” is no formal diagnisis of a condition that renders the nurse unsafe. PNAP Scare Tactics

 

It is a new tactic in the PHMP/VRP trap process. The letter identifies three options:, 1) go to an extended inpatient evaluation, 2) go to a second evaluation after 90 continuous days of outpatient treatment, or 3) reject both and PNAP will close the file and prosecution review will commence.  This is PHMP/PNAP/VRP engaging in expert shopping.

As with the first evaluation, the VRP interested professional must pay for the all treatment and associated evaluations. This is PNAP pushing licensees into evaluations once, twice, or as many times as they need to get an opinion PNAP will accept. This is demoralizing to you the professional who is freaking out.  This is a con by the PHMP/PNAP caseworker.  Do not fall for this trick.

The letter proceeds to state: “In order to undergo the extended outpatient evaluation, please comply with the attached document summarizing the terms and conditions of the extended evaluation. If you successfully complete the extended evaluation thereby allowing us to document that you do not suffer from a substance use disorder, your VRP file will be closed and we will notify the Department of State’s Legal Division that we have determined you do not meet criteria for a substance use disorder. ”

It is not the licensee’s burden to prove they do not suffer from a disorder. It is the Board’s burden to prove the licensee does suffer from a condition that renders them unable to practice. The case law rejects this PHMP legal position.

The letter continues, laying out the various terms and conditions a nurse/medical professional licensee would have to comply while going through this process:

To pursue a residential evaluation, please contact one of the following facilities to make arrangements to be admitted within three weeks of the date of this letter: (1) Marworth 800-442- 7722, (2) Caron Treatment Center 800-854-6023, or (3) The Farley Center 800-582-6066. If the results of the intensive evaluation determine you do not suffer from a substance use disorder, your VRP file will be closed and we will report the findings to the Legal Division. Should the intensive evaluation establish that you meet criteria for a substance use disorder, you will be offered VRP enrollment.

These are three captive PHMP evaluator/treatment facilities.  There is no way either of these locations will not find an impairment.  They want your money, your insurance coverage, PHMP’s continued case referrals.

Call me if you get this letter.

A Constitutional Right to Work

On October 4, 2018 Commonwealth Court issued a significant decision in King v. BPOA discussing the Criminal History Record Information Act (“CHRIA”).This statute gives licensing boards a discretionary authority to discipline, suspend, revoke, grant, or deny licensure based upon a criminal conviction related to the practice of a license. CHRIA’s general purpose, however, is to control the collection, maintenance, dissemination or receive a criminal history record information.

Recently,licensing boards use CHRIA to discipline licensees for criminal conduct NOT related to the practice of license. King reiterates CHRIA does not provide standards for Boards to exercise their discretion. Boards must look at their specific and more relevant enabling statutes, the specific board licensing laws. CHRIA does not authorize discipline for a criminal convictions not related to the practice of the profession.

This is why in CHRIA disciplinary cases, those solely based upon a criminal conviction, licensee’s mitigation and rehabilitation evidence is critical. In 1998 King was convicted of indecent assault. He was sentenced to 5-10 years in jail, 10 years probation and supervision under Megan’s law. After parole and King satisfied all terms of his sentence, did not violate probation or parole, properly secured his barber license, and practiced his profession in an unblemished manner. He properly notified the Board of his conviction.

The Barber Board, after a hearing, revoked King’s license based upon the misdemeanor conviction and probationary sentences. King appealed. Commonwealth Court ruled the Barber Board abuses its discretion in revoking the license based upon CHRIA. As the licensee did not violate the Barber licensing statute, there was no other basis to discipline him.

This case is significant because Commonwealth Court relies upon Article 1, Section 1 of Pennsylvania’s Constitution. This Article guarantees Pennsylvania residents the right to engage in any of the occupations of life. By referencing a state constitutional guarantee the court effectively holds this rights outweighs CHRIA’s general purpose, non-mandatory discretionary license disciplinary.

King emphasizes Boards’ general statements of public safety concerns of a future occurrence is not proper evidence upon which it may base a discretionary disciplinary action. The Board abuses its description when it revokes licensure based on supposition that the licensee could potentially be an instructor for female students under the age of 18 or have contact with minor clients. Such speculative reasoning is flawed.

King rejects Board member perceptions that criminal convictions scar licensees’ character forever, with no possibility of rehabilitation. King instructs licensing Board to consider and properly allow for rehabilitation. King follows a line of 2018 Commonwealth Court cases instructing Pennsylvania licensing Boards that CHRIA is a not a proper basis to suspend or revoke a constitutionally secured property right. https://www.phila-criminal-lawyer.com/blog/2018/05/another-appeals-court-reverses-a-pennsylvania-licensing-board-disciplinary-decision.shtml

Fully employment and hard work is the rule. This is in contrast to many recent cases of which I have written. Commonwealth court is telling the boards as a matter of policy, “let these people work”. Rehabilitation is part and parcel with employment, which is part and parcel with members being productive people in society.

Call me to discuss your case.

DUI — Driving After Inhaling — And Expert Testimony

Advanced Roadside Impaired Driving Enforcement (A.R.I.D.E.) is the forefront of drunk driving enforcement in the age of legal and medical marijuana. State Troopers are trained to identify impaired drivers by substances other than alcohol. These officers receive training on Standard Field Sobriety (“FST”) and other field tests, and eye tests involving the convergence, pupil size, and reaction to light as well as methods of determining ingestion of the substance and classification of drugs (illegal and legal) by the type of impairment.

DUI, Pot, Car Keys

Typically these courses are 16 hours and “train” officers about drugs in the human body, heighten their observation of suspects eyes, and instruct them on seven drug categories and the effects of drug combinations.

Courts are pushing back against the junk science these courses to teach police officers. Courts are limitting the admissibility of field sobriety tests and officer conclusions of impairment based upon drivers “passing” or “failing” a FST.

Commonwealth v. Gerhardt, 477 Mass. 775 (2017) is the first case in the nation to address this issue. In this case the court considered the admissibility of FSTs where a police officer suspects that a driver has been operating under the influence of marijuana. The court observed that the three standard FSTs — the “horizontal gaze nystagmus test,” the “walk and turn test” and the “one leg stand test” — were created to assess motorists suspected of operating under the influence of alcohol. The court found that the tests were developed specifically to measure alcohol consumption as there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.

By contrast, the court noted in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.

The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. Rather, the court concludes that, to the extent that they are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment.

The introduction in evidence of the officer’s observations of what will be described as “roadside assessments” shall be without any statement as to whether the driver’s performance would have been deemed a “pass” or a “fail,” or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.

This decision comports with the my prior blogs on drug recognition expert testimony and the lack of scientific basis for such. Please call me to discuss your legal matter.

Alcohol Use Disorder — Continuing Condition and Safe to Practice

Many professionals consume alcohol in a moderate and temperate manner. Reasonable, social alcohol consumption that results in a driving under the influence criminal charge is an unfortunate event. The criminal consequence and interactions with the justice system are necessary impediments to excessive drinking.

However, reasonable social drinking does not mean licensed professionals suffer from a drug and alcohol addiction or impairment that is both continuing and rendering the professional unsafe to practice their profession. It is these two statutory requirements the PHMP, PAP, and PNAP, ignore when enticing and scaring licensees to enroll in the PHMP monitoring program. PHMP’s threats and intimidation (PHMP Scare Tactics) when combined with licensees’ anxiety and stress from the criminal case create the perfect storm for licensees to make ill-informed and legally incorrect decisions regarding their professional license.

A recent case is a perfect example of why licensees should hire counsel upon receipt of any PHMP paperwork. My client hired me after she had attended a PHMP assessment and, having rejected it, also attended without counsel a Mental and Physical Evaluation. The Board MPE expert concluded she suffered from an alcohol use disorder that required monitoring for her to safely practice. She rejected the DMU/PHMP and fought her case. Luckily for this licensee she hired me.

In all impairment cases, the Practical Nurse Law, 63 P.S. §651-667.8, authorizes discipline if there is sufficient evidence in the record to demonstrate that licensee is addicted to alcohol, that any such dependence is continuing, and any such dependence prevents her from practicing practical nursing with reasonable skill and safety to patients. Absent any one of these factors and the Commonwealth loses its cases. Translated into English, the Commonwealth must prove a professional’s alcohol use condition existed, is continuing, and results in the professional’s inability to practice their profession with care and safety.

During cross-examination of their expert I exposed the inaccuracies and legally deficiencies of his opinion. The expert conceded he did not request, and thus did not review, my client’s medical records, employment records, performance reviews from her current employer, and did not contact reference persons (including probation officer) my client provided. At the hearing the expert disclosed he did not possess any factual information about my client’s work performance, such as employer complaints, or any evidence indicating that her use of alcohol has ever affected her work or resulted in her being requested or directed to submit to alcohol and/or drug testing while at work.

As with many of my cases, prosecutors attempt to satisfy their burden of proof through expert testimony that only says the professional is able to practice practical nursing with reasonable skill and safety to patients as long as she is monitored. The usual language is “I believe she is impaired and that it is unsafe for her to practice nursing with requisite skill and safety without monitoring. As such, experts routinely recommend monitoring based on the need for objective verification of a licensee’s abstinence from alcohol. However, this is not the burden of proof.

A review of the evidence showed this licensee was abstinent for 15 months since the MPE, had eight months of sobriety between the 2016 DUI and the examination, and accumulated years of continuous sobriety between 2008 and 2016. As of the date of the hearing my client was in full sustained remission. As well the expert had no information or documentation suggesting that my client relapsed since the 2016 DUI, given that the testing he ordered for her in February of 2017 came back negative. The Commonwealth could not meet its burden of proof of a continuing dependency element.

Even absent a continuing alcohol dependency, the Commonwealth must still also prove that any illness or dependency, continuing or otherwise, has prevents the licensee from competently practicing nursing with reasonable skill and safety to patients. Here is where the expert testimony was clearly deficient.

The Board’s expert only found Respondent unable to practice nursing safely unless she is monitored. That is not the law. Recommending monitoring as a safety “precautionary measure” must be supported by the evidence. Here the expert did not avail himself of certain sources of information, whose names and contact information my client provided, to corroborate or counter the statements she made by during the examination.

Rather, the expert testified that “when someone gives you a list of people to call, 99 percent of the time they give glowing report, and I can’ t believe what they tell me… and .it may be true, but I can’t base my opinion on that.” Yet, when asked directly, the expert could not cite any evidence that, as of the hearing date, my client was unable to practice nursing with reasonable skill and safety to patients.

Please call me to discuss your case and pending prosecution.

Act 6 of 2018 — All Licensees Must Report Criminal or Disciplinary Charges with in 30 Days

Act 6 of 2018 is a new law in 2018. It represents a fundamental shift in Pennsylvania licensees’ duty to report criminal charges and disciplinary actions filed against them in any jurisdiction in the entire country. The General Assembly passed the new law in anticipation of medical marijuana. The enforcement environment is getting much stricter in Pennsylvania. Every Pennsylvania professional licensee must report the misdemeanor and felony criminal charges to their respective board within 30 days receipt of criminal charges. It is a disciplinary offense for any licensee to not report within 30 days of receipt of criminal charges.

Act 6 of 2018 specifically authorizes the The Bureau of Professional and Occupational Affairs (“BPOA”) to subscribe to JNET. My prior blogs discuss JNET, the criminal reporting database network to which the Nursing Board began subscribing.   JNET now levels the reporting responsibility and Boards learning of its licensees’ criminal conduct.  There was a significant difference between nurses and doctors, pharmacist, realtors, cosmetologists, and funeral directors (and all others) in their criminal charge reporting responsibilities. All licensees are now treated equal. Licensees can not wait to report — thinking at a preliminary hearing charges will be reduced to a summary offense, for which there is a guilty plea. The charging is the reportable event, not the end result.

This all began in 2014.  In late 2014 the General Assembly modified Pennsylvania professional licensing regulations to require nurses to report criminal charges, not conviction, within 30 day days of charges being filing. The BPOA utilized the last several years to create a new enforcement infrastructure and mechanisms to insure disciplinary action is initiated against all nurses who either reported or they learned of criminal conduct or did not report at all.  The reporting responsibility is in addition to reporting criminal charges upon licensee renewal.

Through JNET the Nursing Board became familiar with the criminal reporting subscription service and its information power. Obviously the Board created a flow chart starting at receipt of criminal information through to disciplinary charge initiation for failure to report. The Nursing Board worked out the differences between JNET and nurse reporting of charges. Steps between failure to report, Board investigation, document review, and charges have also been ironed out.

Apparently BPOA had a significantly positive experience with JNET’s notification process, allowing it to better enforce nurses’ reporting responsibility. Expanding 30-day reporting of criminal activity to all other 25 licensing boards will inundate the BPOA with information regarding licensees’ criminal behavior.  This will produce some delays in failure to report and initiation of criminal charges.

The Act also gives the BPOA prosecutor not just the authority but the command to initiate within 30 days an emergent suspension if a licensee’s criminal acts reveal a clear and present danger to the public. The licensee is afforded a preliminary hearing to contest the automatic license suspension. This “automatic suspension process” is not new.

All licensees were spared the obligation to report summary Drug Act violations. By this I mean summary charges for disorderly conduct written by cops giving a break to licensees caught with illegal marijuana. This reporting requirement was in the original versions of the bill but stricken from the final version. The Act includes authority for every Board to institute a schedule of fines for escalating number of failure to report charges.

Act 6 includes a very limited right of expungement. This is only for disciplinary action for failure to comply with continued education requirements. The law explicitly precludes any expungement of any disciplinary order by any board for any other offense. Aside from capping Board fines to $10,000, BPOA can enter a judgment against the licensee if the fine is not paid in 5 years.

Call me to discuss your case.

VRP – Letter of Concern – What It Really Means

Licensees call me asking what is the VRP “Letter of Concern.”  “Do I have to do all these things the packet asks me to do?”  Do I have to answer these quesstions. This blog is a refresher of two prior blogs I wrote: VRP Letter of Concern and What is VRP Cooperation.  Let’s go through the first four items the Letter of Concern packet asks of each licensee.

1) Contact Livengrin (or your local) drug and alcohol treatment center for an assessment.

2) Complete the Participation Cooperation Form and Personal Data Sheet;

3) Sign releases;

4) If you successfully complete the VRP evaluation and you do not meet the criteria for a mental and physical valuation, the VRP will close its file but will still notify the Department of State legal divisions of the findings.

1) The PNAP VRP Assessment Process
The assessment is a basic DSM-V, alcohol or drug abuse, questionnaire.  Assessors almost always find criminal interaction (DUI, drug possession, or theft) or work place impact (getting fired) as a basis for a drug abuse diagnosis warranting monitoring.  Workplace positive drug tests for a non-prescription controlled substance also guarantees a drug abuse diagnosis.   VRP “voluntary” participants do not know this.  You think you could get cleared……NOPE.

Once a licensee contacts the PNAP – specified drug and alcohol treatment provider, to be compliant, the expectation is to disclose current and historical drug and alcohol (D/A) use.  Drug rehab assessors (not medical trained professionals) require VRP “voluntary” participants to release their medical records for review.  The assessors use the records in their PNAP “report” to identify whether the licensee is truthful during an assessment.   Now PNAP has your medical and prescription drug use history.

Some assessors may look past minor recreational use of marijuana or alcohol.  However, PNAP and PHMP supervisors sometimes intervene and “reorganize” assessor’s non-impaired conclusions.  By “reorganize” I mean PNAP caseworkers will either require the assessor to change their no-monitoring conclusion or require a second PNAP assessment.  This is the problem being voluntarily compliant with VRP assessments.  You can’t trust the person performing the assessment.  You can’t trust the PNAP or PHMP caseworker to not intervene in the assessment.  Do not disclose your medical care or medication history in an environment lacking in trust or transparency.

2) Complete the Participation Cooperation Form and Personal Data Sheet
PNAP treats the Participation Cooperation Form as a voluntary enrollment contract. Right off the bat, PNAP attempts to enforce this contract as if it were the Nursing Board. It is not.  For example, prior to or during the assessment process (waiting for scheduling, attending the assessment, or receipt of the report – which is always delayed due to receipt of medical records), PNAP may instruct VRP participants to not work.  PNAP participation is voluntary and voluntary means compliance.  PNAP initially tests a licensee’s ability to comply by precluding work.  This is not proper.  Only a formal Board order precluding a licensee from practicing their profession impairs a license and their ability to work.  If you need to work, and PNAP will not let you, consider not going into the VRP.
Absent a formal Board Order PNAP and PHNP do not have any authority to compel licensees to comply with the VRP participation requirements.  PHMP sometimes requires VRP enrollees to participate in an aftercare plan based upon the PHMP approved assessment.  Or, only after attendance in the care plan can the licensee return to work.   This is wrong.  Months could go by without working, expenses are rising, and licensees need to work.
The VRP letter of concern states “failure to comply with the terms of the PHMP agreement will result in the initiation of formal disciplinary process against the license to practice.” PNAP and the PHMP cannot compel disciplinary action. PHMP and PNAP threats for failure to honor the terms of the PHMP participation agreement – compelling disciplinary action – absent a formal nursing board agreement is an empty threat.  Only a Pennsylvania licensing board prosecutor can initiate disciplinary action. The PHMP and PNAP case workers cannot and do not initiate legal action.
PHMP and PNAP do not have the authority to initiate disciplinary action.  Only after a Pennsylvania professional licensing board enters a formal board order accepting a consent agreement – which is different from a PHMP agreement– can disciplinary action be initiated for breach of that order.  Licensees are allowed to work this entire time.  There is no Board order or other restriction on a licensee’s license during this time.  This is part of the PNAP trap.
PNAP’s Participation Cooperation Form language is a threat scaring licensees to not change their mind.  Licensees perceive the VRP assessment process will be quick.  PNAP makes sure it is not.  After signing the Participation Form, PNAP stops returning phone calls, answering questions, and SLOWS DOWN the process, causing licensees great frustration. Assessments are cancelled or reschedule for weeks.  Licensees who are fully compliant, attend the assessments, provide medical records are treated improperly.
PNAP caseworkers start the bait and switch lie tactics. PNAP caseworkers claim licensees can’t back out of the agreement, must comply and not work during the delay in report clearance or they’ll be subject to disciplinary process. PNAP case workers claim PHMP must release the licensee back to work.  PHMP caseworkers claim it is the legal department or the report is not done yet, or another drug test is required. This is not correct. Absent a formal Board Order, a VRP voluntary compliance participant who can change their mind. The threat of “legal review and prosecution” is just that;  A threat – not reality.
3) Personal Data Sheet
Many licensees initially participate in the VRP as a result of receiving a Letter of Concern.  The Letter of Concern is triggered by criminal charges – a single offense DUI,  a public drunkenness – or falling asleep in a job after working too many hours.  The personal data sheet seeks very private and confidential information.   Filling out a personal data sheet provides PNAP and the PHMP very extensive, confidential, and private information.   Many licensees candidly and honestly answer the personal data sheet questions.
Some questions, however, should not be answered.   Questions 22, 23, and 24(a)-(g) are of specific concern.  When confronted with substance abuse questions 22–24, many licensees indicate they do not have a drug or alcohol use condition, have never been diagnosed with such, and are taking prescription medication.  For the one/off DUI case, minor personal recreational use of pot or some mild alcohol use, the addiction questions can not be affirmatively answered.
At first blush licensees seeking to be compliant with the VRP process do not answer these questions because they can not admit to an addiction and/or do not suffer from one.  PNAP or PHMP case workers review the data sheet answers and claim the licensee did not provide proper complete information.  The delay process begins.  PNAP does not accept blank or denials to these addiction questions.  PNAP tells licensees that their version of the truth makes them ineligible for the VRP and the matter can be referred to the prosecutor for review.    SCARE SCARE SCARE.
Licensee don’t want to be eligible for this program. Licensees should not lie on this form and admit an addiction to get into the VRP.  Admissions of addiction form the basis for VRP  participation and eventual professional licensing boards’ consent agreement compelling compliance in the program.  Admission of an addiction, impairment, and inability to practice nursing is a necessary finding of any Board Order. It also stops the licensee from working.
Do not admit possessing a medical condition (drug or alcohol addiction) you do not have.  Make the Board prosecutor prove their case….. Do not admit any addiction.  The answers to questions 22 through 24 give the PHMP and the Board prosecutors the foundation for the consent agreement.  Don’t answer these questions if you are not impaired, do not suffer from an addiction, and have not been diagnosed as suffering from an addiction.
4) Personal Date Sheet Questions about Drug, Alcohol, or Mental Health Care
Questions 25-33 of the Personal Date Sheet focus on drug or alcohol treatment or mental health care. This is private, confidential medical care received based a medical condition for which many licensees receive appropriate care.  The VRP, PNAP, and the PHMP will utilize your own health care needs against the licensee as a reason to determine an impairment exists.  This is even though the care is for a diagnosed medical condition, for which licensees receive proper care,  and treat with lawful dispensed prescriptions.  Do not give PNAP any personal information about you, about your medical condition, about the medications you take. They’re only using it against you.
Please call to discuss your case

 

Criminal Conviction – Professional License Suspensions and Mitigation Evidence

The Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), requires Pennsylvania’s licensing boards consider criminal convictions disclosed on license applications or which take place after licensure as a reason to discipline active licensees. Different licensing boards apply CHIRA’s rules differently.

On February 28, 2018 Commonwealth Court decided Bentley vs. BPOA, — A.3d —- (2018).  This cases expounds on how a licensing board abuses its discretion when it disciplines a licensee for criminal conduct not related to their license. In 2013 and 2014, Cosmetologist Bentley was convicted in two separate cases of possession with intent to deliver a controlled substance, forgery, aggravated assault, escape, and attempting to allude the police. Wow.

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Bentley reported the convictions to her Board, which issued a Rule to Show Cause seeking to discipline her license under CHIRA.  At the hearing, the Cosmetology Board prosecutor only presented the certified criminal conviction. This is the typical prosecutor practice.  No witness testified as to the underlying criminal conduct.

It is important to have competent counsel at this hearing.  Counsel should object to inadmissible portions of the certified conviction documents. Objections to hearsay statements in affidavits of probable cause eliminate statements of people not present at the hearing.  The licensee can not cross-examine that witness.   I always have these documents paired down and limited.  My client/licensee’s explanation of the criminal case is the only version of events. Consistent Nguyen v. BPOA, licensees are allowed to explain their role in any multi-defendant criminal case. They may explain a co-defendant’s greater role than their own.

During her hearing, through counsel, Bentley presented significant and appropriate mitigation evidence. Mitigation evidence included the delay of the prosecution versus the time of the criminal act; new and abundant family support; full and complete responsibility for the criminal act; the unique set of factors leading up to the criminal charges and her association with her then boyfriend and now co-defendant.  Most importantly, she described her rehabilitation while in state prison. This rehabilitation included anger management, employment/cosmetology training, and new religious faith. She presented reasonable and appropriate community reputation evidence. This evidence corroborated her claim of being rehabilitated, remorseful for her actions, and turning over a new leaf.

beyond-the-classroom-into-the-courtroom

The hearing officer suspended Bentley’s license for the balance of her parole (probably not long). The Cosmetology Board, as all boards do, issued a notice of intent to review the hearing officer’s decision.  The Cosmetology Board rejected as modest Bentley’s mitigation evidence. The board suspended Bentley’s cosmetology license for three years based upon the criminal convictions. The Board rejected Bentley’s need for licensure to remain employed, her rehabilitation, and need to support herself.

Bentley appealed to the Commonwealth Court.  She claimed the Board abused its discretion when it rejected her mitigation evidence and suspended her license based solely on the criminal convictions.  Bentley alleged that the Board summarily ignored all of her uncontested mitigation evidence, which was not contradicted by any evidence the Commonwealth introduced in the certified criminal conviction. Bentley argued the suspension was manifestly unreasonable because the convictions bore no relation to the practice of cosmetology. Arguing the Board’s conduct capriciously disregarded her mitigation evidence absent explanation was an abuse of discretion.

On review the Commonwealth court agreed. Commonwealth Court defines capricious disregard as “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinarily intelligence could not possibly have avoided in reaching a result. When strong evidence contradicts contrary evidence, the adjudicator must explain the basis for its determination.” Absent a proper explanation why the adjudicator is rejecting overwhelming critical evidence, the board abuses its discretion.

As with many of my cases the time delay between criminal event, conviction, and disciplinary action may be five or six years. I argue Board delay which allows the licensee to practice of their profession for three or four years renders mute any board allegation that there is an emergent basis for extensive discipline. Suspension or revocation is not warranted if the board took six years to do it.

Also, the Cosmetology Board licensing scheme does not authorize discipline for criminal convictions not related to the profession.   Imposing discipline based upon the convictions was an error of law.  Such also revealed ignorance of Bentley’s mitigation evidence.  The court found Bentley’s mitigation evidence unique and must be considered.
The Commonwealth Court held that the Board’s summary rejection and failure to consider it constitutes a capricious disregard of the evidence. Such is an abuse of discretion for which the Commonwealth Court rejects the board decision and sends the case back to the Cosmetology Board.

This case is an example of licensing boards tightening their belts and implementing a much stiffer enforcement environment. This appellate  decision, and several other recent cases, reveal licensing boards routinely abusing their discretion and ignoring the law that guides their decisions.  Non-law trained licensing board members shoot from the hip regarding the discipline that they want to impose upon their license fees. Many times, there is no legal basis for the discipline.

When licensees take an appeal, they have an appellate, independent, unbiased court review the nature and extent of imposed discipline.  The appellate court rejects this board’s arbitrary and capricious decision. Unfortunately this costs a lot of money. However, in many of my cases I see unfettered discretion punishing hard-working licensees that is far beyond both what is necessary and reasonable and what the licensing statutes allow.
Call me to discuss your case.  A criminal record should not be a bar to getting or keeping a license.
 jerry-arrest-record-seinfeld1
Jerry’s career took off.  So should yours.
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