PHMP versus RAMP: A Big Difference

I write blogs about Pennsylvania professional licensing legal developments.  I am also licensed to practice law in New Jersey. I routinely counsel Pennsylvania professionals concerned about their NJ licenses.  There is a huge difference between Pennsylvania’s PHMP and New Jersey’s RAMP (“Recovery and Monitoring Program “).  RAMP was established in 2003 as an Alternative to Discipline program, managed by the Institute for Nursing for the New Jersey Board of Nursing. http://njsna.org/ramp/

Pennsylvania medical professionals who live in New Jersey or Pennsylvania residents also licensed in NJ, but only use their PA  licenses, are exposed to RAMP.  (Obviously also are NJ licensees working in NJ.)  Any Pennsylvania medical professional, who is also licensed in NJ – who receives Pennsylvania PHMP letter – must consider how RAMP will respond if Pennsylvania restricts their professional license.  Any Pennsylvania disciplinary action based upon an alleged impairment of alcohol and drugs will come to NJ’s RAMP attention. Also, NJ licensees must carefully respond to RAMP communications.

A recent NJ appellate case reveals just how different RAMP is from Pennsylvania’s PHMP.  On November 16, 2017 a New Jersey appellate court decided In The Matter of the license of Kevin Rafferty, RN.  He was a certified registered nurse anesthetist and an Advanced Practice Nurse.  Mr. McCafferty‘s licensing problems began in 2013 when three co-workers smelled alcohol on his breath during work.  They levied anonymous complaints to the Nursing Board, which contacted RAMP. This was the only evidence against him.

RAMP contacted  Rafferty via letter, setting forth the allegations that he may have problems related to mental health and or substance-abuse that could affect his ability to practice his profession.  RAMP offered him a private letter agreement and enrollment for a minimum of 90 days.  During this time RAMP requires random observed drug tests, monthly self evaluation reports, and regular attendance in peer support meetings.  Post-enrollment, RAMP then requires an initial intake evaluation.  In my experience this evaluation typically  finds the professional needs to be in RAMP for 12 months.  The 90-day initial RAMP invite is a fraud!

It is this context (which the McCaffrey case reveals)  that RAMP’s enrollment process is distinctly different from Pennsylvania’s PHMP.  RAMP’s initial letter of invite is not really an offer, but an order to each licensee.  PHMP’s initial “Letter of Concern” is a non-mandatory offer for help and does not constitute a demand to enroll.

RAMP’s initial 90-day evaluation period is not based upon a medical expert assessment or determination the licensee suffers from a drug or alcohol addiction that renders them an impaired professional. That assessment comes only after RAMP enrollment and signing of the RAMP 90-day contract.  The licensee is then stuck.

The RAMP evaluation takes place after enrollment, when the agreement sign requires compliance with the terms and condition of the program.  Licensee thinking they are just going to get the 90 days meet the expert, who determines more time in RAMP is required. Now they are stuck and can’t break the agreement.

PHMP’s letter of concern offers an assessment and voluntary disclosure to determine in an impairment exists.   PHMP requires either a finding of an impairment or a voluntary admission of such before enrollment in the program.  Pennsylvania Voluntary Recovery Program (“VRP”) questionnaire includes a provision that the licensee admit to suffering from an impairment.  This is the voluntary admission part of the VRP contract.  I counsel against signing this agreement.  NEVER ADMIT you are an impaired professional.Wait for the Board to file a formal petition to Compel and Mental and Physical Evaluation.  (See my other blogs.)

McCaffrey did not respond the the initial 90 day RAMP letter.  He was determined to be “non-compliant“ with RAMP.  RAMP notified the Nursing Board that “it could not insure the board or the public that McCaffrey was safe to practice.”  The Board subpoenaed McCaffrey to appear before a committee of the Board to answer questions about  appearing at work smelling of alcohol.  McCaffrey appeared, denied the allegations, and brought numerous letters of reference.  The Board still concluded he should enroll in RAMP and proposed a 2nd private letter agreement requiring McCaffery participate.  He refused.

The Board issued a provisional order of discipline compelling McCaffrey to submit to an evaluation and monitoring to determine whether his continued practice may jeopardize the safety and welfare of the public.  This is a distinct different legal standard and burden of proof compared to Pennsylvania’s impairment burden of proof.

NJ’s licensing boards and Courts have long recognized a “community care-taking responsibility” as legal justification that allows government license restriction.  The NJ Nursing Board thereafter issued a final order compelling McCaffrey to enroll in RAMP. The Board determined such was required to satisfy its “mandate to protect the public.” McCaffrey‘s failure to comply with this final order was reported to the national practitioner data Bank. Still no medical determination of any impairment!

McCaffery appealed claiming there was no medical or legal basis to compel RAMP and that absent such, a general order requiring such denied him due process of law.   The appellate court reviewed McCaffrey’s objections to the Board’s order. The appellate court determined the Board maintains oversight over professional licensing for nurses pursuant to the Nursing Law.  Because the New Jersey professional nursing law requires an applicant not be a “habitual user of drugs and alcohol”, McCaffrey‘s potential for alcohol and drug abuse rendered him suspect of meeting the legal requirements of both the Nursing Licensing and Nurse Anesthetist laws.  The court found the Board had the authority even absent a medical conclusion of any impairment.

McCaffrey complained that absent an expert determination that he was impaired or suffered from a chemical dependency, he met the requirements for licensure.  The Board rejected this argument. The court determined the Nursing Board was within its statutory authority based upon the factual allegations, even without even an expert evaluation, that the Board was within its authority to compel McCaffrey to participate in the 90 day private letter RAMP program.  The decision was handed down in 2017.  McCaffrey’s work place situation occurred in 2013.

For the many licenses that practice in Pennsylvania, these procedural differences between the PHMP and RAMP are significant and should be respected. Pennsylvania’s regulatory and statutory framework allow for licensee participation in and evaluation by a board chosen medical expert before mandatory enrollment in the PHMP.  NJ does not allow for this pre-enrollment evaluation, compels participation, and then subjects the licensee to a bait and switch disciplinary monitoring program.

Please call me to discuss either of these programs and any letters you receive from your licensing board.

 

Advertisements

A Drug Act Conviction – An Automatic License Suspension – Not Revocation – with A Right of Reinstatement.

Pennsylvania’s Nursing Law has existed since 1951.  Between 1951 and May 1985 the Nursing Law did not include a provision automatically suspending a license upon conviction of a Controlled Substance Act felony.  In 1985, the Legislature revised the statute by adding Section 16.1 which states:

A license issued under this act shall automatically be suspended upon . . . conviction of a felony under the [Controlled Substance Act] . . .. As used in this section the term “conviction” shall include a judgment, an admission of guilt or a plea of nolo contendere. . . . Restoration of such license shall be made as in the case of revocation or suspension of such license.

McGrath v. Bureau of Prof’l & Occupational Affairs, No. 5 WAP 2017, 2017 Pa. LEXIS 3109, at *12-13 (Nov. 22, 2017).  Once issued, nursing licenses may be suspended or revoked by the Board. As set forth in Section 14 of the Law, the Board may suspend or revoke a license if it makes certain findings. See 63 P.S. § 224(a), (b)(3). Additionally, the Board may refuse to issue an initial license for these same reasons.

McGrath’s nursing license was automatically suspended – not revoked – when she was convicted of violating the Drug Act (it seems a felony).  McGrath petitioned for reinstatement of her nursing sometime shorter than 10 years.  McGrath argued the Nursing Act’s provision for reinstatement allowed for the Board to grant such application within its discetion at any time, not earlier then 10 years stated under a separate provision of the Nursing Act.

She won in the Commonwealth Court and the Nursing Board took an appeal to the Supreme Count. The issue is “In view of the absence of an explicit directive for restoration of an automatically-suspended license which has not been revoked, should the court follow the 10 year reinstatement period or shorter.

I have written about the consequences of a Drug Act conviction many times.  The automatic suspension and delayed eligibility for either reinstatement or revocation present substantial impediments to practicing licensee.

The Pennsylvania Supreme Court in McGrath determines that after the Nursing Board has suspended a license, it may restore or reissue the license in its discretion (less than 10 years) subject to any disciplinary or corrective measure it could have originally imposed. § 224(b)(6). The process for doing so is reflected in Section 15 of the Nursing Law, which states, in pertinent part:

All suspensions and revocations shall be made only in accordance with the regulations of the Board, and only by majority vote of the members of the Board after a full and fair hearing before the Board…. The Board, by majority action and in accordance with its regulations, may reissue any license which has been suspended. If a license has been revoked, the Board can reissue a license only in accordance with section 15.2.
63 P.S. § 225. There are distinct procedures for the restoration of suspended versus revoked licenses, and it imposes a more restrictive regimen in relation to revoked licenses. In addition to the discretionary suspension of licenses under Sections 14 and 15, the Nursing Law contains a provision, added in 1985, for automatic suspension due to a felony conviction under the Controlled Substance, Drug, Device and Cosmetic Act.  63 P.S. § 225.1(b).  In particular, Section 15.1(b) of the Law states:
A license issued under this act shall automatically be suspended upon … conviction of a felony under the [Controlled Substance Act] …. As used in this section the term “conviction” shall include a judgment, an admission of guilt or a plea of nolo contendere…. Restoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license.
(emphasis added). In terms of the “hereinafter provided” clause of the above text, Section 15.2 indicates:
Unless ordered to do so by Commonwealth Court or an appeal therefrom, the Board shall not reinstate the license of a person to practice nursing … which has been revoked. Any person whose license has been revoked may reapply for a license, after a period of at least five (5) years, but must meet all of the licensing qualifications of this act for the license applied for, to include the examination requirement, if he or she desires to practice at any time after such revocation.
Finally, Section 6(c) of the Nursing Law, which relates to the qualifications for licensure, specifies that if a nursing license applicant has been convicted of a felony under the Controlled Substance Act, the Board may not issue a nursing license to that person unless: ten years have passed since the date of the conviction; the applicant demonstrates significant progress in rehabilitation so that licensure is not expected to create a substantial risk to patients or the public; and the applicant otherwise satisfies the licensure qualifications set forth in the Law. See63 P.S. § 216(c).
The McGrath Supreme Court specific states a professional nurse who has been licensed but whose license has been suspended is not similarly situated to an individual who has never been licensed—or, for that, matter, a person who was once licensed but whose license has been revoked. See generally Brown v. State Bd. of Pharmacy, 129 Pa. Cmwlth. 642, 646, 566 A.2d 913, 915 (1989) (acknowledging that a person holding a professional license still possesses a property right in that license even where it has been suspended (but not revoked), as a suspended license is “susceptible to revival”); Pittenger v. Bureau of Prof’l & Occupational Affairs, 142 Pa. Cmwlth. 57, 61–62, 596 A.2d 1227, 1229–30 (1991) (same, and expressing further that “when a license … is revoked, it is extinguished and the former possessor is returned to the same position he occupied had the license or privilege never been issued” (quoting Keeley v. State Real Estate Comm’n, 93 Pa. Cmwlth. 291, 296, 501 A.2d 1155, 1158 (1985))).
Having conclude that reinstatement is eligible in less that ten years, such is still within the discretion of the Board.  More importantly, the Court affirmed the proposition that

Section 15.1(b) reflects a clear legislative policy judgment that a felony violation of the Controlled Substances Act is an especially serious infraction warranting an automatic license suspension.  “The Board [still possesses] … discretion to restore such a license in the manner applicable to other license suspensions after conducting an appropriate administrative review.”
This huge legal victory, is however, probably short lived.  The McGrath Court simply counsel’s the Board to seeking revocation of a license, in accordance with the procedures outlined in the Nursing Law, following a conviction under the Controlled Substances Act. See63 P.S. § 224(a)(8) (authorizing the Board to impose discipline, up to and including revocation, based on the acquisition, possession, distribution, or use of a controlled substance for other than acceptable medical purposes).  (“The Board could have sought revocation of Ms. McGrath’s license [under Section 14] … but it did not.” (emphasis omitted)). If an automatically-suspended license is ultimately revoked, reinstatement would then be governed by Section 15.2.
The McGrath lesson is two fold.  The case reveals very poor legislative drafting that creates a loop-hole, for suspended licensees convicted of Drug Act violations, which allows them to seek to seek license reinstatement under ten years when they have a good reason.  However, either the General Assembly will fix this statutory construction problem or the Board will change its policy and start revoking licenses of those professionals convicted of Drug Act violations.
Call me to discuss your criminal matter and the status of your license.

 

Felony Convictions and License Reinstatement

A licensed professional convicted of a felony drug offense is a major impediment to securing licensure in another jurisdiction or seeking reinstatement once your professional license is disciplined for that conviction. In many license reinstatement cases, applicants are so in need of their license that they hire the wrong attorney, waste money on filing reinstatement petitions prior to the expiration of the license preclusion period, or simply give up on getting their license back.
In a 2017 Pennsylvania Nursing Board Final Adjudication and Order the nurse was convicted in 2006 in Delaware of practicing with an expired nursing license.  In 2015 she sought reinstatement of her Pennsylvania nursing license.  Because she was convicted of a felony involving the practice or professional in Delaware, the convicted offense and license discipline was applicable under the Pennsylvania Nursing Act to her Pennsylvania license.
After 8 years, she hired the wrong attorney to seek reinstatement of her Pennsylvania nursing license. Her attorney thought reinstatement was was possible based upon mitigation and rehabilitation evidence.  She was wrong.
Pennsylvania’s Professional Nursing Law, section 6(c), states that the “Board may not issue a license or [graduate training certificate] to an applicant who has been convicted or a felony relating to a controlled substance law (in any jurisdiction) unless at least 10 years has elapsed from the date of conviction.   It does not matter how much rehabilitation the applicant has undergone.  If the application for licensure is not outside the ten years, there is no legal ability for the Board to consider the license application.
This denial of licensure application case reveals that counsel for the applicant did not know the law.  Focusing on rehabilitation rather than eligibility, the applicant’s attorney wasted his client’s money on his premature application, hearing, and appeal time.
Licensing attorneys must know what evidence is admissible in the relaxed administrative hearing process under GRAPP (General Rules of Administrative Practice and Procedure) 2 PA.C.S. § 504.  Knowing to what exhibits or evidence to object and facts an attorney should stipulate will make or break a licensee’s case.  The uninformed general practitioner will not know the importance or admissibility of certain evidence.  They will waste time and legal fee money fighting evidence that is admissible in evidence for the Board to consider or will move into evidence evidence that the Board should not consider.
More importantly, the uninformed practitioner will accept a case simply to pay their bills.  The uniformed attorney will take cases that have no merit, can not be won, or will lose a case that is easily won.  Desperate licensed professionals who are waiting out a discipline and seek reinstatement will pay an attorney who sounds good but can not discern the attorney’s lack of knowledge of their case.
Call me for confidence in understanding your case.  I will give you a clear understanding of the problem, counsel you about the risks and rewards of fighting your case.  I will not take your case, or fight for your license if you do not want me to, can not afford it, or there is no basis to seek reinstatement.
Fighting a disciplinary action – an Order to Show Cause -, contesting the VRP or DMU letters must be done with competent informed counsel. Never concede an impairment. Never admit an addiction without formal legal counseling on the affect of such on your license. Never plead guilty to any criminal offense without consultation with an experienced license attorney so you understand the collateral consequences of the criminal conviction, ARD, or no contest plea.  Please read my blogs and website to understand how I can help you and protect your license.

Rural Nursing and the Scope of My Practice

Telephones are great.  Your reading this blog because of the internet.  You are concerned about a legal issue of which I have written about.  I write all of my blogs and wrote every article on my website and the topics contained therein.    All the AVVO reviews on my website are from great medical professional facing significant issues  of which I help them considerably.

Due to the Pennsylvania nursing impairment enforcement environment, my professional license defense practice (criminal and disciplinary hearing) take me to many rural counties throughout Pennsylvania.  My web and internet presence starts my legal relationships.  I meet with almost every client in either county district or Common Please Court, in Harrisburg for a hearing, or at a convenient place to prepare for the next step in the legal process.  I therefore drive a lot.

My driving throughout the Commonwealth brings me to really wonderful people, scenery, and vistas.  I have written about driving through the Lehigh Valley several times.  Last week I ventured off to Columbia County.  It could be considered the middle of the Commonwealth — a wealthy state it is.  Some pictures taken while driving reveal the early morning fog burning off.

 

The really interesting thing about this photograph is that the fog is coming from the cold water of the eastern branch of the Susquehanna River.  This branch meanders west and then south, merging with the northern branch that falls north to south from Lewisburg and Williamsport into Harrisburg, where my clients and I attend the Nursing, Medical Board and other hearings.

Coming back from Columbia County, Jim Thorpe and the Lehigh River bring me home through the Lehigh Tunnel.

 

I really like Carbon County, Jim Thorpe.  The town is great.  The court house is magnificent, and there is a bike rental and equipment shop next to the breakfast place.  The crazy monument controversy is alive and present in the town square.

Carbon County Square

Call me to talk about coming to your Pennsylvania County to handle your nursing license, medical license, or other professional license disciplinary or criminal matter.

Medical Marijuana and the Pitfalls for the Professional

The pitfalls of medical marijuana for the professional are more evident every day. Several weeks ago I wrote a blog on the challenges facing licensees who seek a medical marijuana card due to a medical condition. Prescription Drug History   In another blog I wrote about the complexities facing medical professionals who seek to become medical marijuana authorized prescribers.

 

In Pot Doc Article the Philadelphia Inquirer reveals Pennsylvania’s Medical Board, Health Department, FBI, and DEA investigatory practices in this field.  If you are a medical professional, please read this article.  I represented a peripheral, part time doctor moon lighting for Dr. Nikparavarfard.

Doctors working in a medical practice that includes a “Pot Doc“ – doctors that are authorized to write prescriptions for medical marijuana – are subjecting themselves to unnecessary oversight and inquiry.  When a  “Pot Doc” exposes himself to both criminal and licensing  investigations, they expose all nurses or doctors employed by that practice.  Drug Act violations are routinely found and criminal charges filed!.

The FBI and DEA’s investigation of Dr. Nikparvarfard’s Scranton office – the Pot Doc – necessarily also included  my client’s prescribing patterns.  An invasive, long running investigation turned to her simply because the police were investigating that practice and needed leverage against Dr. Nikparvarfard.  Experienced and accomplished undercover FBI, DEA, Health Department agents then ensnared my client.  Again, only because they were looking at Dr. Nik’s practice.

My client was not the prescribing “Pot Doc.”  However, the overarching Pot Doc investigation expanded to any potential criminal activity discovered within the medical practice.  But for my client working for the Pot doc and his medical practice, my client would not have been under surveillance. Unfortunately she was.

Once my client became known to FBI, her prescription and Medicaid/Medicare billing patterns were easily examined, patients contacted, and medical procedures evaluated.  Undercover patients were sent to the practice.  All because of the attention brought on the practice by Pot Doc Nikparvarfard.

One bad apple spoils the pie; two or three bad apples subject professionals to jail.  These types of investigations render medical professionals (nurses and doctors) unemployed and potentially unemployable.  Thereafter, professionals are the target of multiple investigations by medical boards, DEA,  Health Departments, and potentially the U.S. Department of justice.  But for my client’s employment with a Pot Doc, she would not have come under any surveillance.

This case is but one example of many to come.  Overarching public safety concerns, opiates in the news, and an aggressive enforcement environment of a new regulatory scheme create huge risks for both Pot Docs and those doctors and nurses who work with them.

Please call me to discuss

Birchfield, Rufusals, and PennDot’s DL – 26B Form

In many pending 2017 Pennsylvania DUI and civil license refusal cases stemming for arrests between April 2016 and July 2017 police officers administered incorrect chemical test warnings to Pennsylvania motorists.  Use of the DL 26B form, I think, is legally insufficient pursuant to the then effective 75 Pa.C.S. § 1547(b)(2).  Counsel should file suppression motions.  A corollary issue is whether these drivers are capable as a matter of law of refusing the blood test where the police officer testifies he read the illegal PennDOT DL-26B form.

In May/June 2016 PennDOT created the new DL 26B form in response to Birchfield.  Birchfield held that criminally coercing a blood draw — compelling a defendant to testify/provide blood evidence against themselves or face jail time — is unconstitutional.  After Birchfield, enhanced penalties and threats of jail to secure evidence in DUI cases require suppression of blood evidence.  In response PennDOT changed its DUI informed consent form, the DL 26B document that local and state police read to DUI suspects when the want the suspect to give blood.  The General Assembly did not give PennDOT authority to do this.  This is the topic of this blog.

The suppression argument is as follows:  The arresting officer’s warnings to the DUI suspect fail to comply with Section 1547(b)(2) in that the driver was not advised that refusing the chemical test would result in enhanced criminal penalties (i.e. the penalties provided in Section 3804(c)) as § 1547(b) (pre-July 2017) requires.  While there is no statutory or other requirement that any DL-26 Form contain appropriate warnings, or that the form be read verbatim, it is nonetheless the duty of the police officer to inform the petitioner of the statutorily required warnings.  (See Section 1547(b)(2)).  In other words, if the police officer recites the appropriate warnings from memory without the use of any form at all that is perfectly acceptable under the law.  If an officer confirms the only warnings provided were those contained on the DL-26B Form, those warnings are not consistent with the statutory law prior to July 2017.

This date is important because on July 20, 2017, the governor approved Act 30 of 2017 which provides for an amendment to Section 1547(b)(2), removing language requiring a police officer to provide the warnings relating to enhanced criminal penalties for refusal. While this amendment was not effective on the date of petitioner’s incident, the fact that the legislature  amended  it is indicative  of its acknowledgement that such an amendment was necessary to effectuate the change required of the warnings pursuant to Birchfield.

Importantly, the §1547 pre-July 2017 statute includes the word shall.   The legislature’s use of the term “shall” establishes that police officers must comply with the §1547 language mandate. In Comm v. Weaver, the 2006 Pennsylvania Supreme Court interprets §1547(b)(2) verbiage (the same was in effect on prior to July 2017) reaching the same conclusion.  Following the September 2003 amendments to the Implied Consent Law, PennDOT implemented the language of§ 1547(b)(2)(ii) into a new DL-26 form. This led to a significant amount of litigation over whether the warnings printed on the December 2003 version of the Department of Transportation’s DL-26 form were sufficient to satisfy the requirements of§ 1547(b)(2). The Pennsylvania Supreme Court, in Weaver, held that the warnings printed on that version of the DL-26 form were legally sufficient to satisfy those requirements.  In reaching its decision, the Weaver Court stated:

The legislature’s use of the term “shall” clearly establishes that police officers must comply with  this mandate.   Subparagraph (ii) commands police officers to inform an arrestee that “(ii) upon conviction, plea or adjudication of delinquency for violating section 3802(a), the person will be subject to penalties provided in section 3804(c) (relating to penalties).” The words of this statute are clear and free from all ambiguity; thus, we will glean the legislative intent from those words. The plain language requires only that the officer inform the arrestee that if he is convicted of DUI, refusal will result in additional penalties.

Accordingly, under the plain language of the statute, the warnings set forth in the 2017 version of § 1547(b)(2) are mandatory and must be strictly complied with in order to suspend a motorist’s operating privilege pursuant to the Vehicle Code. Previously, in very certain terms, Pennsylvania’s Supreme Court has held that, in requesting a chemical test, the police officer must inform the arrestee of the consequences of refusal and notify the arrestee that there is no right to consult with an attorney before making a decision. See O’Connell, 555 A.2d at 877-78.12 “An arrestee is entitled to this information so that his choice to take a [chemical] test can be knowing and conscious.” Id. at 878. The choice belongs to the arrestee, not the police officer.

In Commonwealth of Pennsylvania, Department of Transportation v Kennedy, 66 A.3d 818 (Pa. Comw. 2013), the Court says that:

“the warning delivered to [licensee] fully complies with the statutory requirements. The statute simply does not require any specific explanation as to the length of the civil suspension and does not require explanation of criminal penalties set forth in §3804(c). The statute requires only that the police provide notice that refusal will result in license suspension and, that if the licensee is driving under the influence, refusal will result in additional penalties. [The licensee] receives this information. Kennedy requires that the officer deliver only the statutory authorized 1547(b) authorized penalties of a refusal. While there is no specific language that the Courts have determined these police officers must read licensees, once the officer begins notifying potential motorists of license refusal consequences, only those consequences that are set forth in the statute must be read.”

Our Pennsylvania Supreme Court has confirmed police officers’ obligation to advise motorists of the exact warning contained in §1547(b)(2). In this 15 month period, police officers utilizing the DL-26B form did not comply with statutory law requiring the correct consequences be advised to these motorists. PennDOT’s utilization of the revised DL-26B was not sanctioned by the General Assembly and not legally effective on the date and time of these arrest render the information provided to them insufficient as a matter of law.

§1547 prior to July 2017 required reading all language contained therein, even those provisions deemed unconstitutional by the United States Supreme Court. This tension between the current statutory laws and judicial decisions create a situation fraught with potential that motorists will not receive sufficient information to make a voluntary, informed decision regarding consent to the requested chemical testing.

The complex criminal versus civil application of Birchfield, Weaver, Kennedy, supra, is born out in Boseman v. Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017), and Gray v. Commonwealth , Dep’t of Transportation, Bureau of Driver Licensing, No. 1759 C.D. 2016, 2017 WL 2536439, at *7–8 (Pa. Commw. Ct. June 9, 2017), reargument denied (Aug. 7, 2017).  These cases maintain  arresting officer’s statutory obligation to inform a motorist of the General Assembly’s defined § 1547(b)’s ramifications of a refusal – not PennDOT’s version.

In Boseman  and Gray, supra, Commonwealth Court states Birchfield does not apply to PennDOT license suspension refusal cases. As such, any court finding that Birchfield effectively compelled PennDOT to unilaterally re-write the 1547(b) mandatory warning, to a non-statutorily authorized version, is not supported by the Commonwealth Court’s application of Birchfield in the §1547(b) refusal context. Boseman, Gray, Weaver, Kennedy, supra.

In Gray and Boseman, supra, Judge McCullough dissents.  Judge McCullough convincingly points out the incongruity of the constitutional right of privacy and self-incrimination Birchfield establishes (adopted by Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016)) and Commonwealth Court’s dismissing such argument in the civil license suspension context when ONLY a state based property right (a motor vehicle operator’s license) is at issue.

In Price v. Commonwealth, Dep’t of Transportation, Bureau of Driver Licensing,, No. 1873 C.D. 2016, 2017 WL 4321625, at *6 (Pa. Commw. Ct. Sept. 29, 2017), Judge McCullough concurs in the result (she is constrained to follow Boseman, supra) but reiterates her position set forth in Gray and Boseman.  However, Judge Cosgroves dissents:

While Birchfield is not directly applicable here, it does stand for a principle which the former DL–26 does not reflect. And while Birchfield allows implementation of civil penalties for refusal to submit to a blood test in cases such as this, it does not give states permission to misinform a licensee as to the consequences of a refusal.

As such, Courts may, on alternative grounds, conclude Birchfield applies in the civil, administrative license suspension realm as a driver’s licenses in this day and age constitutes a property right to which criminal threat of incarceration to surrender (the proper § 1547(b) language to be read but was not) violates her constitutional rights, voiding any refusal. This conclusion is sought even though the DL-26 Form with the enhanced penalties was not read to these motorists.  It was still required to be read, but was not.

Call me to discuss your case.

 

Prescription Drug History and the Mental and Physical Evaluation

To help prevent prescription drug abuse and protect the health and safety of Pennsylvania citizens, Pennsylvania’s Prescription Drug Monitoring Program (PA PDMP) collects information on all filled prescriptions for controlled substances. This information helps health care providers safely prescribe controlled substances and helps patients get the treatment they need.

PA PDMP’s new initiative seeks to integrate the PDMP system with the electronic health records (EHRs) and pharmacy management systems of all eligible health care entities in Pennsylvania.

As well, as of July 7, 2017, the Pennsylvania Prescription Drug Monitoring Program is sharing data with 11 other states and D.C. Interstate sharing of data helps prescribers and pharmacists get a more complete picture of their patients’ controlled substance prescription histories, regardless of which state they filled their prescription in.

In New jersey, on May 1, 2017, the emergency rules that went into effect on March 1, 2017 were readopted by the Attorney General and the Board of Medical Examiners.  These rules concern limitations on prescribing, administering, or dispensing of controlled dangerous substances, with specific limitations for opioid drugs, and establish special requirements for the management of acute and chronic pain.  These limitations and requirements apply to physicians, podiatrists, physician assistants, and certified nurse midwives.

These new rules affect how professional licensees prepare for Mental and Physical Examinations (MPE). If you have read my other blogs, you should understand the MPE is a compelled medical doctor Drug and Alcohol evaluation investigating a licensee’s potential impairment and continued ability to practice their profession safely. Licensing board orders compelling MPEs require professionals to provide their medical records. The lookback period for medical treatment and care depends on the nature and extent of a licensee’s medical needs.

Historical surgeries (dental orthopedic, or OB/GYN for example) typically reveal a prescription history.  It is these prescriptions of which the MPE expert is interested. The new PA PDMP discussed above is now a means through which the MPE expert (a medical doctor with access to the database) can learn of a licensee’s prescription drug history.

As a medical doctor, the MPE expert has access to licensees’ historic prescription drug use.  The MPE medical experts can review the  PA PDMP database similar to a treating physician who has a legal obligation to check the PA PDMP  before writing a prescription or a pharmacist prior to dispensing a medication.  The licensee who does not bring corroborative prescription records or provides a false historical record severely taints their credibility in the MPE.

 

Call me to discuss your MPE ordered through your Pennsylvania licensing Board.

 

What is a “Conviction” – How Important is Drug Court to the Licensed Professional?

In 1999 Tim Kearney was issued his Pennsylvania physician assistant (“PA”) license. In March 2010 he admitted himself into a treatment facility for drug addiction issues.  On August 16, 2011 he plead guilty to the felony Drug Act violation –  securing a prescription by fraud.  At the time of his guilty plea, Kearney acknowledges he understood that by pleading guilty he was  “admitting to committing the criminal charge” as alleged under the Pennsylvania Drug Act.

In December 2011 the Pennsylvania Medical Board automatically suspended Mr. Kearney’s PA license for no less than 10 years pursuant to section 40(B) of the Medical Practices Act of 1985.  This provision requires the Board to suspend any licensee who suffers a felony conviction for violating any provision of Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act (CSA). 35 P.S. § 780–113(a)(12).

In December, 2011, Kearney filed in criminal court a petition to vacate his guilty plea and enroll in the county adult drug court program.  In June 2014, after 2 1/2 years in drug court, Kearney petitioned to vacate his guilty plea and dismiss the criminal case.   His request was based upon compliance with all terms and conditions of the program. On June 20, 2014 the county trial court dismissed all of Kearney’s criminal drug charges.  They were subsequently expunged. (This is really important.)

Six months later, in December, 2014, Kearney filed a Petition to Reinstate his PA license based upon the lack of criminal conviction, the expungement, and his extensive drug and alcohol treatment.  This blog discusses the Commonwealth Court opinion approving his petition and reversing the Medical Board’s refusal to reinstate Kearney’s PA license.  The case is found at Kearney v. Bureau of Professional and Occupational Affairs, — A.3d —- (2017).

The Pennsylvania administrative law hearing examiner denied Kearney’s Petition to Reinstate his PA license. The hearing examiner concluded Kearney’s admission of guilt in the guilty plea colloquy and statement before the presiding judge when the charges were dismissed constitute either a conviction or an admission of guilt pursuant to the Medical Practices Act.  The hearing officer determined Kearney satisfied his burden of proof that he was able to resume his PA practice with reasonable skill and safety to patients, subject to monitoring by the physicians health program.

The Medical Board agreed with the hearing examiner that Mr. Kearney’s PA license remained indefinitely suspended as a result of a “conviction” as defined by the Medical Practices Act.  It did not reach the PHP and monitoring aspect of the decision because it determined Kearney’s license was still suspended.

Kearney appealed to the Commonwealth Court, which reversed. The sole issue on appeal was whether Kearney’s original guilty plea (vacated and now expunged) constituted a conviction and his statements on the record constitute “admissions of guilt“ in accordance with section 40B of the Medical Practices Act.

Commonwealth Court reviewed the Medical Practice Act.  “The Act provides, in pertinent part, that “[a] license or certificate issued under this act shall automatically be suspended upon … conviction of a felony under the act … known as [t]he [CSA] ….” 63 P.S. § 422.40(b). Section 40(b) of the Act clarifies that “[a]s used in this section, the term ‘conviction’ shall include a judgment, an admission of guilt or a plea of nolo contendere.Id.; see also section 2 of the Act, 63 P.S. § 422.2 (defining “conviction” as “[a] judgment of guilt, an admission of guilt or a plea of nolo contendere.

  • Section 43 of the Act further states that “[a]ny person whose license, certificate or registration has been suspended or revoked because of a felony conviction under the [CSA] … may apply for reinstatement after a period of at least ten years has elapsed from the date of conviction.” 63 P.S. § 43.

While the Act provides for automatic suspension of a license for a felony “conviction” under the CSA, the Act incorporates the CSA by express reference. By all reasonable means, this compelled the Court to unify two or more statutes in a cohesive and consistent fashion and avoid interpreting one statute in a manner that repeals or is otherwise incongruous with another statute.

Under section 17 of the CSA, a trial court “may place a person on probation without verdict if the person pleads nolo contendere or guilty to any nonviolent offense under [the CSA] and the person proves he is drug dependent.” 35 P.S. 780–117. (This is a Section 17 plea.)

Importantly, that section also states that “[u]pon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him,” adding that the “dismissal shall be without adjudication of guilt and shall not constitute a conviction for any purpose whatever ….” 35 P.S. § 780–117(3) (emphasis added). Section 19 of the CSA further declares that records of arrest or prosecution under the Act will be expunged. When a court orders expungement, the records “shall not … be regarded as an arrest or prosecution for the purpose of any statute or regulation or license or questionnaire or any civil or criminal proceeding or any other public or private purpose.” 35 P.S. § 780–119(b).

As a surface matter, Commonwealth court observes that a plain reading of the statutes indicates that, while the Act includes an “admission of guilt” as a subpart of the definition of a “conviction,” the CSA commands that a final disposition of “probation without verdict” does not constitute a “conviction.” Under the procedure in section 17 of the CSA for a “probation without verdict,” an individual’s “plea” is, in essence, held in abeyance, or not accepted, until there is a final determination by the court as to whether the individual has satisfactorily completed the terms and conditions of probation; if the individual does so, the trial court dismisses the charges and there is no verdict or finding of guilt in the matter.

Consequently, in order to afford the phrase “for any purpose whatever” in section 17 of the CSA its full linguistic effect, the Court reasonably interpreted it to mean that the oral and written statements made to a trial court in connection with a “probation without verdict” cannot be a considered a “conviction” for purposes of section 40(b) of the Act. To be sure, this construction is the only way in which the term “conviction” in the Act can be harmonized with the same term in the CSA.

Indeed, following dismissal of the underlying charges, the criminal record is expunged pursuant to section 19 of the CSA, and the criminal record cannot be used at all in an administrative licensing matter – not even as proof that the individual  was arrested or prosecuted.  In some statutes, our General Assembly, without using the word “conviction,” has expressly included the phrase “probation without verdict” to describe the basis upon which a licensing board can refuse, suspend, or revoke a professional license.

However, the General Assembly did not insert this or similar language in the Act. Nor did   the General Assembly inject “probation without verdict” alongside “admission of guilt” in the Act’s definition of a “conviction.” Inferentially, the divergence in word usage among the CSA, the Act, and other similar statutes is indicative of the General Assembly’s desire to conceptually separate an “admission of guilt” from a “probation without verdict,” suggesting to courts that the two should not be perceived or linked as being one and the same.

On the whole, Commonwealth Court precedent has clearly concluded as much.   For example, in Carlson, a teacher entered a plea of nolo contendere to charges that he possessed drugs in violation of the CSA, a plea that has “the same legal effect as a plea of guilty in the criminal proceedings in which it is entered.” 418 A.2d at 813. The criminal case proceeded under the provisions of section 17 of the CSA, and the teacher eventually had his criminal record expunged. Although this Court was convinced that the school district properly dismissed the teacher for immorality pursuant to sections 1122 and 1129 of the Public School Code, Act of March 10, 1949, P.L. 30, as amended 24 P.S. §§ 11–1122 and 11–1129, we pointed to the special nature and characteristics of the CSA and the probation without a verdict mechanism.

More specifically, the Court explained that when the charges are dismissed following compliance with probation, “no judgment is entered, notwithstanding the fact that the defendant is placed on probation, an act which normally constitutes a sentence, i.e. a judgment.” 418 A.2d at 813. On this basis, we determined that evidence of the teacher’s plea of nolo contendere was inadmissible, and further reasoned that, as a result of the expungement, there was “no criminal record” upon which the trier of fact could determine that the teacher engaged in conduct of a criminal nature. Id. Accordingly, this Court held that the teacher could not be discharged from his employment with the school district as a matter of law.

The crisp and clean understanding of this case is that in any Medical Board supervised license case, for which disciplinary action is based upon a conviction that has been opened and erased due to Drug Court compliance, there is no conviction.  There is no basis to deny reinstatement of a license.  Whether the PHP gets involved is a different question.  This case merely, but forcefully, allows for eligibility for reinstatement once Drug Court is served, complied with, and all charges are dismissed and expunged.

Call me to discuss your case.

 

Living Life to the Fullest Every Day

I woke up this October morning thinking “What can I do on an overcast, somewhat drizzly, muggy,  fall Sunday morning?  Mountain bike riding with biking buddies Rob and Caleb couldn’t have been easier decision.  The complicated question was where to ride in southeastern Pennsylvania.

We – six of us usually – have ridden (and gotten hurt and broke bikes) on multiple trails throughout Valley Forge State Park, Marsh Creek State Park, and the Green Lane Park and Reservoir.  Our local favorite, however challenging, was calling our names this morning. The pictures below do little justice to the beautiful, rugged, stream-studded creek gorge of Philadelphia’s 1800 acre Wissahickon Valley Park.

Starting out with wonderful hot coffee at Caleb’s house on near Elbow Lane, just east of McCallum, we dropped in near Climber’s Rock, riding the eastern side down to Rittenhouse.  From there, Forbidden Drive and the Blue Stone Bridge carried us over the creek and into the heart of the trails.  The three of us, lead by local favorite jeweler Caleb Meyer, climbed the western side near Kitchens – on the yellow trail – for over 8 miles of switch backs, hilly rollers, large rocks and steep inclines. Ever cautious and hoping not to get hurt, we made our way through this fabulous Sunday morning ride.

At Bell’s Mills and then Northwestern we saw the horses, forcing us to reckon with our approaching return trip home.  We crossed back over at Dewees Rock and Germantown Pike.  On this last 1/4 of the ride, worn and beaten down, we stopped several times to savor the scenery.  Waterfalls, covered bridges, and my favorite, the Lenape Chief Tedyuscung Statue.

The Indian Chief is always the highlight of my Wissahickon ride.  It is a challenge to get there, a joy to see, and a true testament to what hard work can achieve.  Leaving the Lenape Indian Chief behind, we headed east, picking our way back to Climbers Rock and Livesy Lane.  I have not ridden this part of the trial.  Each pedal stroke after 150 minutes in the saddle felt great, but exhausting.

We were finishing the last up hill climb to Elbow Lane, looking forward to some fine October-fest libation, when we suffered our first and only casualty of the ride.  Rob’s rear tire exploded with a hiss of exhaustion.  The brief walk out could not dampen our spirits or take the air out our awesome Sunday morning ride.  Thanks guys!  13.4 miles and 1500 elevation, 2.5 hours.

Social Media — Facebook, Instagram and State Licensing Board Prosecutions

Social media and the advent of voluntary public display of everything is starting to affect Pennsylvania’s professional licensing board investigations.  For the last ten years I have consistently represented client’s under investigation for drug diversion and theft.  These cases typically stem from hospital and nursing home based investigations.  A new twist in the investigatory practices of these cases has emerged.
It is important to realize how state board investigators are now utilizing social media as an investigatory tool.  Voluntary picture posts on Facebook, Instagram, or other websites will are now used as the professional’s own statements. Facial recognition software identifies and attaches names to various people in most photographs.  Aspiring and licensed professionals should pause when choosing which if any photographs to post or in which they are included that others are posting. This should give you the professional great concern.
Pennsylvania’s Department of Attorney General, Bureau of Narcotics Investigations (BNI) and licensing board investigators have begun to search social media for names, addresses, the identity of complaining witnesses, and/or information to aide their criminal and licensing prosecutions.  Investigators are learning —  through a target’s own social media self-promotion — the target’s social activities, accomplices, associates, friends, and favorites hang outs.  Many witnesses that would otherwise never be found are located, interviewed, and intimidated.
As well, during a client’s recent Nursing Board Mental and Physical Evaluation, the western Pennsylvania based psychiatrist asked my nurse client of her social media participation. This psychiatrist revealed he had searched Facebook, Instagram, and other social media outlets in preparation for the psychiatric drug impairment evaluation. The doctor sought evidence to confirm and corroborate my client’s statements during her evaluation about her social activities and drinking tendencies. The psychiatrist sought photographic and statement evidence which could reveal my professional client’s evaluation statements may have been inconsistent with social media and/or statements is medical records to her doctors.

Credibility is the most important piece of evidence in an independent medical examination and at a licensing application or disciplinary hearing.  The witnesses I  present at a licensing hearing (live, via telephone, or in a letter) corroborate and strengthen my professional client’s reputation, character, and credibility.
Photographs of social celebration in the context of disciplinary hearings based upon accusations of drunk driving or drug and alcohol impairments constitute important cross-examination evidence.  When a professional voluntarily hands to a psychiatrists, criminal or licensing board investigators evidence against them (or life style pictures that may poorly depict that licensee) it makes my defense harder and the prosecutor or psychiatrists impairment investigation easier.  DO NOT DO THIS  TO YOURSELF.
%d bloggers like this: