Pennsylvania Medical Professionals, Covid-19, and Stress.

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Petitions to Terminate DMU Probation Orders — End the Torture.

I represent health care workers in Pennsylvania’s health care professional monitoring program.  Some are voluntarily in the program.  Some are forced.  Some of my clients’ contracts have been extended from 3 to 5 to 7 years in either PNAP, SARPH, or PHP for a minor, single violation of the Consent Agreement.  Some of these extensions are forced or voluntarily entered.  It is time to end your PNAP PHP SARPH probation.

Some clients have their PHMP probation terminated and their license suspended after the Board prosecutor files a Petition for Appropriate Relief or PAR.  This filing is made after the PHMP and PNAP/PHP case worker complains to you and then the prosecutor that drug tests are missed or positive, or other violations of the agreements or Board orders occurred.  The problem here is that case workers claim positive tests or other violations right when licensees are about to be finished their probation.

A recent case has such a recurrent time line, I thought I would lay it out. The licensee’s PNAP Agreement started before November of 2009.  The formal Consent Agreement is dated November 2009.  In July 2013 the PNAP case worker claimed a drug test violation.  However, obviously the licensee should have been out of the program by then.  In October 2013 the prosecutor filed a petition to suspend the license.  That petition carries an automatic license suspension until “things are figured out”.  This is the PAR.   Sound familiar yet?

Even before the PAR was filed, the licensee remained complaint with PNAP, attending an evaluation in July of 2013 that found an alcohol use disorder in full sustained remission.  This means there is no active impairment. The October 2013 license suspension matter did not get a hearing until October of 2016, a proposed adjudication was decided in December 2016 and the full Nursing Board ordered license reinstatement in March 2017.  From 2013 to 2017 the licensee’s license was suspended — but the alcohol use disorder was in full sustained remission as the license participated in PNAP the entire time of the suspension.

The PNAP compliance meant there was no ongoing impairment and there was no evidence of any disorder rendering the licensee unable to safely practice.  As a matter of fact and law, the Board could not — BUT DID — require the licensee to re-enroll in PNAP as a condition of reinstatement of license. To get a license back, the licensee had to follow the order.  This order was inconsistent with the facts and law that revealed between 2014 –  2017 the licensee  logged into record trek thousands of times and was tested at least monthly, costing over $5000.

Jump forward to 2020.  This licensee is ready to finish the three year DMU probation from March of 2017 to March 2020.  Not too funny, but the  PNAP case worker just now claims a positive drug test and claims the need for another extension of the contract.  Sound familiar?  Yes…. everyday I hear this story.  I file Petitions to Terminate this type of forced DMU Probation before PNAP or the prosecutor can file a PAR.

At this juncture after being forced into PNAP for 5, 6, 8 years, compliant licensees have attended thousands of AA meetings, 30-day inpatient, called Record Trac everyday, and undergo thousands of drug tests costing thousands of dollars.  Some clients have spent $15,000 in inpatient care, $2500 in on going forced out-patient care, and more than $7500 in drug tests.

The typical Board order forcing DMU enrollment can be modified and subject to termination at paragraph 45.  Please read that paragraph in your Board Order.  Or if its a Consent Agreement, it is paragaph 7.  Read them and call me.  The case is Kenney v. Bureau of Prof’l & Occupational Affairs, State Bd. of Pharmacy, 203 A.3d 421 (Pa. Commw. Ct. 2019).  Also read Thim v. BPOA, State Board of Nursing, July 24, 2019 Not Reported in Atl. Rptr. 2019 WL 3315143.  These cases discuss the burden of proof for the Commonwealth when it alleges an ongoing impairment and when a licensee can get out of the DMU and PHMP.

In many of these cases, the Petition to Terminate Probation should be granted.  The Boards can not capricious disregard evidence of no ongoing impairment.  The Boards violate the law “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result.” Bentley v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 179 A.3d 1196, 1200 (Pa. Cmwlth. 2018).

Call me to discuss ending your PNAP PHP SARPH contract, DMU Order, and the torture these cases workers try to inflict every day, week, month, year of your probation.

Health Care Professional License Renewal Extensions – Covid-19

 

 

March 27, 2020

 

COVID-19 License Renewal Extensions for Nurses and Others

 

 

This document includes guidance for:

  • State Board of Medicine
  • State Board of Nursing
  • State Board of Examiners of Nursing Home Administrators
  • State Board of Barber Examiners`
  • State Navigation Commission
  • State Real Estate Commission

 

 

Summary:

Due to the COVID-19 emergency, the Department of State requested, and Governor Wolf granted, the extension for 90 days of certain license renewal deadlines which fall between April 30, 2020, and June 30, 2020. Any associated regulations that establish these dates are temporarily suspensed.

While the department will provide guidance encouraging licensees to renew on time, if possible, this waiver ensures that if they miss the deadline their licenses will remain valid, and they will have an additional 90 days to renew them.

 

The following professional and occupational license renewal deadlines will be extended:

 

State Board of Medicine:

  • Graduate Medical Trainee license renewal will be extended from June 30, 2020, to Sept. 28,

State Board of Nursing:

  • Registered Nurse, Clinical Nurse Specialist, Certified Registered Nurse Practitioner and Prescriptive Authority license renewal deadlines will be extended from April 30, 2020, to July 29,
  • Practical Nurse license renewal will be extended from June 30, 2020, to Sept. 28,

 

State Board of Examiners of Nursing Home Administrators:

  • The Nursing Home Administrator license renewal deadline will be extended from June 30, 2020, to Sept. 28,

State Board of Barber Examiners:

  • Barber license renewal will be extended from April 30, 2020, to July 29,

State Navigation Commission:

  • Navigation Pilot license renewal will be extended from May 1, 2020, to July 30,

State Real Estate Commission:

  • Renewal deadlines for all license types will be extended from May 31, 2020, to Aug. 29,

Pennsylvania Authorizes Licensed Health Care Professionals to Provide Services via Telemedicine During Coronavirus Emergency

March 18, 2020

 

Pennsylvania Authorizes Licensed Health Care Professionals to Provide Services via Telemedicine During Coronavirus Emergency

In order to increase the number of health care practitioners available to respond to the COVID-19 emergency and to ensure continuity of patient care and services, Governor Wolf has granted the Department of State’s request to allow health care professionals licensed under any of the Department of State’s Bureau of Professional and Occupational Affairs (BPOA) licensing boards to provide services to patients via telemedicine during the coronavirus emergency.

 

For all licensing-related inquiries, please use the email addresses found here: Board Contact Info

 

Health Care Practitioners Currently Licensed In PA

Currently no Pennsylvania statute authorizes or prohibits the practice of telemedicine.

Due to the COVID-19 emergency, the Department requested authority to issue guidance to licensees under any of BPOA’s health-licensing boards permitting them to provide services via telemedicine when appropriate.

Those boards are:

  • Chiropractic
  • Dentistry
  • Medicine
  • Nursing
  • Optometry
  • Pharmacy
  • Podiatry
  • Psychology
  • Massage Therapy
  • Osteopathic Medicine
  • Nursing Home Administrators
  • Occupational Therapy Education and Licensure
  • Physical Therapy
  • Social Workers, Marriage and Family Therapists, and Professional Counselors
  • Examiners in Speech-Language Pathology and Audiology
  • Veterinary Medicine

Health Care Practitioners Licensed in Other States, but Not Licensed in PA

 

 

  • There is a significant need for certain health care professionals to physically travel to Pennsylvania to assist in the emergency effort, but also a substantial need for practitioners licensed outside Pennsylvania to provide services via telemedicine.
  • Waiver request: The Department requested authorization from the Governor to allow licensed practitioners in other states to provide services to Pennsylvanians via the use of telemedicine for the duration of the emergency without obtaining a Pennsylvania license. This request was approved by the Governor if the practitioner meets the following requirements:
    • They are licensed and in good standing in their home state, territory or country.
    • They must provide the Board they would normally seek licensure in with the following information prior to practicing telemedicine with Pennsylvanians:
      • The practitioner’s full name, home or work mailing address, telephone number where they can be reached, and an email address.
      • Identify the practitioner’s license type (e.g., “physician and surgeon,” “registered nurse,” etc.), any license number or other identifying information that is unique to that practitioner’s license, and the identify the state or other governmental body that issued the license.
    • Further details on submission method of the information above will be provided on the BPOA

 

Other Guidance

 

  • The Department of State will provide references on telemedicine issued by other Commonwealth agencies in any communications or postings/pages on this issue, for ease of access for all
  • All practitioners using telemedicine are advised to remain informed on any and all federal and state laws, regulations and guidance regarding telemedicine, including but not limited to a practitioner’s obligations under the Health Insurance Portability and Accountability Act (HIPAA) and recent guidance provided for the

U.S. Department of Health and Human Services, which can be found here: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency- preparedness/notification-enforcement-discretion-telehealth/index.html

  • Authorization to engage in telemedicine from a professional licensing standpoint is separate and apart from any insurance coverage/payment issues that fall under the Department of Health, the Department of Human Services, the Department of Insurance, or any other state or federal

 

ECFMG and USMLE — No Irregular Behavior

Contrition and a good, honest client portend great results. My USMLE client traveled very far for this hearing in Philadelphia.  She was nervous, but testified credibly, confidently, and sympathetically. She testified about medical issues, significant many personal issues, including some financial difficulties.

She admitted oversight and failing to read the The USMLE Bulletin of Information.  However, the most important part of our presentation is that she accepted responsibility for the error, and reiterated her overwhelming health, personal, and financial issues at the time of the electronic submission.

“Following careful consideration of all of the information available, the CIR elected not to issue  a finding of irregular behavior. Accordingly, an annotation of irregular behavior will not be entered on your record with respect to this incident.”

 

Case over.  Call me to address your USMLE or ECFMG matters.

Your Medical Practice and DEA Investigations

A federal criminal target letter from a local United States Attorney notifies a potential defendant that they are the “target of” an FBI, DEA, or other governmental agency criminal investigation. Target letters say “you are the target” and place the recipient on notice to hire an attorney.

Recently, a medical practitioner brought me a new letter.  This letter notified him that his practice was now under federal criminal investigation. It was not a target letter, per se, but a letter asking him to meet.  I was amazed.

The letter stemmed from a 2017 DHS administrative subpoena for medical records for a small subset of that physician’s patient files. The DEA subpoenaed specific patient files based upon patient’s DEA records indicating they had received a substantial number of controlled substance prescriptions. The DEA learned this information through a computer search of this physician’s prescribing patterns, pharmacy dispensing patterns, and actual patient received controlled substance prescriptions.  The DEA then subpoenaed the medical records to see if the doctor had a medical basis to write the prescriptions the database revealed.  Doctors have become the targets of the opioid crisis.

After the physician produced his records the DEA submitted the medical records to their expert physician. This is when something unusual happened.  The US Attorney took the time to notify the physician the expert concluded the physician’s prescribing pattern, quantity, and frequency of controlled substance prescriptions served no legitimate medical purpose in the usual course of professional practice. His medical practice for that small set of patients was criminal in nature.

The US Attorney did not simply indict the doctor.  The government identified to the doctor the numerous deficiencies and violations of standards in the physician’s prescribing practice:

  1. The physician was prescribing high-dose opioids frequently with benzodiazepines;
  2. The medical records did not identify a medical condition justifying the prescribing;
  3. The physician failed to document changes in prescribing patterns between patients with changing medical conditions;
  4. The physician failed to document increase in benefit to the patient from the opioid treatment and failed to provide alternate treatments;
  5. The physician failed to stop prescribing Opioids after proof of failed drug screens:
  6. The physician failed to stop prescribing opioids when no drug screens were performed;
  7. The physician failed to stop prescribing opioids to patients with positive drug test for alcohol, other opiates and benzodiazepines;
  8. The physician prescribed controlled substances without performing any physical examination;
  9. The physician prescribed controlled substances without a patient treatment plan, or inadequate treatment plans;
  10. The physician prescribed controlled substances to patients with no confirmed diagnosis of a medical condition;
  11. Patient records were inadequate, missing, or unreadable or did not have current medication or diagnosis notated in the file;
  12. Many files did not possess updated Pennsylvania prescription drug monitoring program reports

Amazingly this United States Attorney told the physician his medical records reflected in extraordinary pattern of distributing controlled substances while failing to satisfy relevant standards under the Controlled Substances Act and the False Claims Act. The physician was put on notice that the Controlled Substances Act and it’s implementing regulations require prescriptions be issued for legitimate medical purposes by any individual practitioner acting in the usual course of his profession. 21 CFR 1306.04(A).

If a prescription is issued but fails to satisfy those standards to prescription, it is not valid under 21 USC § 842(a)(1), 21 USC § 829(a). These violations provide for a civil penalty under 21 USC § 842C1A of not more than $25,000 per prescription or no more than a total of $64,820 for all violations after November 2, 2015. The physician was also notified that if Medicare paid for any of the prescriptions under a federal healthcare program, the physician was subject to False Claims Act triple damages under 31 USC § 3729.

This doctor was invited him to come and talk to the United States attorney and the Department of Justice about this letter and the 12 files in question.  Most importantly:

  1. the doctor was not yet indicted;
  2. his entire office files were not seized;
  3. his personal and business assets were not subject to civil forfeiture claims
  4. his personal and business assets were not frozen
  5. he was not forced to surrender his DEA prescribing Authority as a bail condition over a holiday weekend;
  6. he was not emergently charged by the Pennsylvania Medical Board;
  7. and he not in jail.

My other clients have not been as fortunate to receive, while intimidating, such an explicit letter.  This doctor was invited to talk to the United States Attorney and the Department of Justice about this letter.  If you have received a letter similar to this please call me to discuss your options.

Pennsylvania’s New Opioid Treatment Agreement Law

On Nov. 27, 2019 Pennsylvania Governor Tom Wolf sign into law Act 112 of 2019.  This is Pennsylvania’s Opioid Treatment Agreement Law.  It  took immediate effect.  The law requires prescribers to enter into an opioid patient treatment agreement before issuing the first prescription in a single course of treatment for chronic pain using any opioid-containing medication, regardless of whether the dosage is modified during treatment.

Among the new requirements, the Prescriber must: determine whether an individual has taken or is currently taking a prescription drug to treat a substance use disorder; have a discussion with the patient about the risks of addiction, and additional risks if the patient suffers from a mental health condition or substance use disorder; present non-opioid treatment options available; and discuss the dangers of taking a controlled substance containing an opioid with benzodiazepines, alcohol, or other depressants. The Prescriber must review with the patient, and both must sign, a treatment agreement containing a number of required elements, including the patient’s consent to targeted urine drug testing if medically necessary. The Prescriber must obtain written consent from the patient for the prescription, and record the consent on the treatment agreement. The treatment agreement must be maintained in the patient’s medical record.

The law exempts from these requirements medical emergencies, management of pain associated with cancer, and use in palliative or hospice care. Violations of the law may result in sanctions to the Prescriber’s license in accordance with the applicable professional practice act. The Act is effective immediately, and mandates that the Pennsylvania Department of Health issue regulations within 90 days of the Act’s enactment.  Contact me for a Patient Agreement Form.

Aside from these patient agreements, 35 Pa. Cons. Stat. § 52A03 (2016). Pennsylvania also amended its laws regulating opioid prescribing to minors in 2016. The amended statute prohibits prescriber from prescribing more than a seven-day supply of a controlled substance containing an opioid to a minor.  Requirements with the force of law: 35 Pa. Cons. Stat. § 873.3 (2016). As with minors, Pennsylvania also now prohibits prescribers from prescribing more than a seven-day supply of opioids to persons receiving care in emergency departments.

Reckless Prescribing and State Criminal Prosecution for Manslaughter

Every day medical practitioners confront complex and serious medical cases.  Patients and their doctors face death every day of the week. In this opiate use and abuse environment, death is one pill, snort, injection, toke away. Prosecutors have been turning to the distributors of the drugs that are killing our nation’s children, mothers, sisters, fathers, and brothers.

 

In one hand federal prosecutors are targeting the drug makers.  In the other hand, state and federal prosecutors are now targeting physicians whose care presents a conspicuous disregard of a substantial and unjustifiable risk of death.  Now, when patients die, the autopsy results are turned over to prosecutors who seek to unjustly and prematurely crucify every physician whose pain prescriptions may be part of a patients ultimate demise.

My last blog discussed federal mandatory minimum sentence enhancements for physicians convicted of violating federal drug laws which violations directly (medically) cause a patient’s death.  These physicians are exposed to mandatory minimum 20 years of incarceration.  That case discussed the United States Supreme Court case that defined medical causation in a federal criminal setting under specific death by prescribing statutes.Federal Mandatory Minimums in Prescription Death
The state courts and legislatures are also getting a piece of this action.  A recent New York Court of Appeals holding concludes doctors can face homicide charges, in certain circumstances, if the drugs they prescribed are used by one of their patients during a fatal overdose on the medication. Here the issue was the doctor was not charged under the prescription death criminal charge.  Rather, he was charged under a homicide manslaughter statute that did not include a requisite clear causation proof.  NY State Case: People v. Li — November 2019

 

At issue in the Li case is the NY State definition of recklessness:“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when [that person] is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]).

 

A conviction for reckless manslaughter “require[s] that there be a substantial and unjustifiable risk’ that death . . . will occur; that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant’s conduct amount to a gross deviation’ from how a reasonable person would act” (People v Asaro, 21 NY3d 677, 684 [2013], quoting Penal Law § 15.05 [3]). The conduct must be “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” (Asaro, 21 NY3d at 685 [internal quotation marks and citation omitted]).

The extreme facts of the case are important.  The physician’s office was only open one day a week, on the weekend, and did not require appointments. The doctor saw as many as 90 patients in a single day, charging $100 cash per visit.  The doctor did not verify the source of the patients’ pain complaints and conducted little to no physical examination of the patient.

 

Thereafter, the doctor prescribed heavy doses of whatever medication the patient requested. Certain patients were given prescriptions for a combination of medications that should not have been prescribed together. The jury convicted the physician of manslaughter after two patients died of opioid overdoses.

 

When the patients died, an investigation commenced focusing on the physician’s charting and prescription writing habits.  Current state of prescription drug monitoring programs and federal DEA prescription writing history for every physician in the country allows prosecutors to conclude whether or not a physician acted with reckless disregard of the substantial and unjustifiable risk that his prescription practices could result in an overdose or medical related death.

The physician argued he did not have the requisite mens rea (Latin for specific mental intent) to act recklessly against his patient’s safety because the drugs as prescribed would not have resulted in death if used as directed. The physician argued this that he could not have known either patient would abuse the medications.
The New York Court of Appeals rejected this argument under the facts as patently absurd.  “It is a direct and foreseeable result of defendant’s reckless conduct “that extra prescriptions or the copious amount of prescriptions written for each patient” obviously suggested the patient was not taking the medications as directed and, thus, it was reasonably foreseeable that the patient was abusing the prescriptions.”
The New York Court of Appeals did not limit It’s ruling to the facts of this specific case. In affirming the manslaughter conviction, the court affirms the proposition that physicians must comply with their prescribing responsibilities, state law on appropriate therapeutic parameters for prescribing controlled substance, and practice their profession responsibly and ethically.
The new burden of proof for criminal prosecution is recklessness in a physician’s prescribing of various medications that, when interacting together, can be said to be reasonably foreseeable to cause death.  In the context of physicians that write to many prescriptions for scheduled controlled substances in the absence of objectively verified medical conditions and conservative prescription writing practices, local prosecutors offices will be investigating that position.

Federal and State Prescription Fraud

Some of my blogs are extremely dense.  This and the next several blogs focus on the intersection of  federal and state criminal statutes and regulations concerning illegally written prescriptions and the potential criminal consequences.

Federal criminal statutes are intentionally written extremely broad.  Title 21, United States Code, Section 841(a)(1) is the Federal Drug Act.  Typically used for drug dealers, this provision is the tool federal prosecutors use to criminally charge physicians who improperly write prescriptions for controlled substances that are not medically necessary.  The language of the federal criminal statute is quite simple.

Title 21, United States Code, Section 841(a)(1), provides that “[e]xcept as authorized by this subchapter, it shall be unlawful for any person to knowingly or intentionally manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance.”  Title 21, United States Code, Section 802(10), provides that the term “dispense” means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling or compounding necessary to prepare the substance for delivery.

Section 821, provides that “[t]he Attorney General [of the United States] is authorized to promulgate rules and regulations …relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances.”   21 Code of Federal Regulations § 1306.04, governing the issuance of prescriptions, which provides, among other things, that a prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. Moreover, an order purporting to be a prescription issued not in the usual course of professional treatment is not a prescription within the meaning and intent of section 309 of the Act [21 U.S.C. § 829] and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the law relating to controlled substances.

The Pennsylvania Code of Professional and Vocational Standards, Title 49, Chapter 16.92, defines the authority of physicians licensed by the Commonwealth of Pennsylvania to prescribe or dispense controlled substances. Chapter 16.92 provides in pertinent part:

(a) A person licensed to practice medicine and surgery in this Commonwealth or otherwise licensed or regulated by the Board, when prescribing, administering or dispensing controlled substances, shall carry out, or cause to be carried out, the following minimum standards:

  • Initial medical history and physical examination….. [B]efore commencing treatment that involves prescribing, administering or dispensing a controlled substance, an initial medical history shall be taken and an initial examination shall be conducted unless emergency circumstances justify otherwise. Alternatively, medical history and physical examination information recorded by another health care provider may be considered if the medical history was taken and the physical examination was conducted within the immediately preceding thirty days. The physical examination shall include an evaluation of the heart, lungs, blood pressure and body functions that relate to the patient’s specific complaint.
  • Among the factors to be considered in determining the number and the frequency of follow-up evaluations that should be recommended to the patient are the condition diagnosed, the controlled substance involved, expected results and possible side effects. For chronic conditions, periodic follow-up evaluations shall be recommended to monitor the effectiveness of the controlled substance in achieving the intended results.

 

  • Patient counseling. Appropriate counseling shall be given to the patient regarding the condition diagnosed and the controlled substance prescribed, administered or dispensed. Unless the patient is in an inpatient care setting, the patient shall be specifically counseled about dosage levels, instructions for use, frequency and duration of use and possible side effects.

 

  • Medical Records. [C]ertain information shall be recorded in the patient’s medical record on each occasion when a controlled substance is prescribed, administered or dispensed. This information shall include the name of the controlled substance, its strength, the quantity and the date it was prescribed, administered or dispensed to a patient. The medical record shall also include a specification of the symptoms observed and reported, the diagnosis of the condition for which the controlled substance is being given and the directions given to the patient for the use of the controlled substance. If the same controlled substance continues to be prescribed, administered or dispensed, the medical record shall reflect changes in the symptoms observed and reported, in the diagnosis of the condition for which the controlled substance is being given and in the directions given to the patient.

When the federal law is read in conjunction with Pennsylvania’s Code governing appropriate medical practices, prescriptions written without a medical basis or therapeutic need but for which the physician bills federal, state, or private insurance companies for both visits and reimbursement, the physician is exposed criminal liability. The criminal liability is both for insurance fraud and violation of the federal drug act.

As a doctor of medicine, physicians are authorized to dispense to patients Schedules II, III, IV and V controlled substances and to prescribe medicine to patients, including controlled substances, for legitimate medical purposes and in the usual course of professional practice.

Call to discuss any federal criminal target letter or indictment.

Alcohol on the Job as a Medical Professional

Many nursing board prosecutions start from on-the-job claims of co-workers  smelling alcohol on a licensee’s breath while working or a nursing administrator thinking a licensee has slurred speech and seemed “scattered”.   Lets go get a drug and alcohol test.

Pennsylvania’s medical related licensing board investigates this type of allegation under 63 P.S. §§63 P.S. §§2205(b)(4) and (b)(5) for being unable to practice professional nursing with reasonable skill and safety by reason of mental or physical illness or condition or dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination.  In western Pennsylvania the Board sends individuals for the mental and physical examination to Robert Wettstein, M.D.  The purpose of Dr. Wettstein’s evaluation is conduct a psychiatric examination of the licensee to determine, if under the the DSM-V the licensee meets any one of, or a multiple of the eleven (11) criteria relevant to the diagnosis of an Alcohol or Drug Use Disorder.

Importantly the PHP, SARPH, and the PHP sucker, trap, scare medical professional licensees into the PHMP/PHP/PNAP programs after they are subjected to, and reveal, a positive Urine Ethyl Glucuronide test (“EtG”) which is not one of the eleven (11) criteria relevant to a diagnosis of an Alcohol Use Disorder set forth within the DSM-V.

In a recent case, the following facts were present: a negative drug screen on the day of the instance, not being terminated and no other work place discipline or termination from nursing employment, and a prior DUI ARD following a DUI arrest.  The licensee stated to Dr. Wettstein that she typically drank one or two bottles of draft beer or a mixed drink once or twice a week at a club, usually with her boyfriend.  The good doctor determined she was an alcoholic and concluded she could not practice safely with out going into the PHMP.

Wettstein diagnosed the licensee with an Alcohol Use Disorder based upon her EtG test results with the following Alcohol Use Disorder symptoms: 1) Respondent consumes more alcohol than intended as demonstrated through her purported ” blackout”/”brownout”; 2) Respondent has lost control of her alcohol use over time; 3) Respondent likely self-medicated with alcohol to address the emotional distress she experienced from the death of her brother; 4) Respondent is not attentive to her alcohol use or her alcohol experience as demonstrated by her 2010 DUI arrest and statement to him that she was not intoxicated at the time of her arrest; and 5) Respondent denied having an Alcohol Use Disorder or needing treatment for such a Disorder.

This licensee fought the case and won. Importantly, the licensee’s EtG test was positive and at 40-times the normal limit, but her Carbohydrate Deficient Transferrin (“CDT”) test was negative for heavy alcohol use.  The CDT test is a valid diagnostic test which tests for biomarkers indicative of heavy alcohol use.   This is a huge inconsistency in objective test results.

Importantly, the hearing officer thoroughly reviewed the factual record and concluded: “the record shows as a threshold matter that Dr. Wettstein failed to identify the diagnostic criteria for an Alcohol Use Disorder under the DSM-V in either his written report or through his hearing testimony. Nor did Dr. Wettstein identify the specific DSM-V criteria Respondent purportedly satisfies. In the absence of such critical information , any finding that Respondent has an Alcohol Use Disorder would necessarily be predicated exclusively upon Dr. Wettstein’ s opinion alone that Respondent has an Alcohol Use Disorder based upon the undisclosed DSM-V diagnostic criteria.”

An easy simple interpretation of this legal/medical conclusion is Dr. Wettstein made up his conclusion and did not rely upon any proper medical evidence to determine the licensee was impaired and unable to safely practice her profession.

The hearing officer relied upon an appellate case I handled and won.  In that case, Dr. Voskanian did the same thing — made up his opinion.  There, the court stated: Absent expert testimony establishing the diagnostic criteria for an Alcohol Use Disorder, the particular criteria a licensee purportedly satisfies, and how the licensee satisfies those criteria, the record fails to contain substantial evidence to support Dr. Voskanian’s diagnosis of an Alcohol Use Disorder but, instead, requires  the Board to merely accept his diagnosis at face value. See, e.g., Thim v. Bureau of Professional and Occupational Affairs, 1019 WL 3315143 at *8-9 (Pa. Cmwlth. July 24, 2019).  This, the court would not allow the Board to do.

The appellate court and the hearing examiners are starting to push back on Board experts’ baseless, made up, medical legal conclusions.  Call me to discuss your case.

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