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.

Recreational Marijuana is NOT Legal in Pennsylvania

“Over the past several years, nearly half of our Sister States and this Commonwealth have legalized medical marijuana. Some States have also repealed their prohibitions against recreational use; Pennsylvania has not.  A recent case emphasizes this point.

In this appeal, John Batista makes the novel argument that, because marijuana is now medically available in Pennsylvania, police officers may no longer rely upon its smell as a factor for developing probable cause. Like the trial court, we reject this theory. In certain instances, the smell of marijuana may still indicate that a crime is afoot, because the growth, distribution, possession, and use of marijuana without a state-issued permit remains illegal. Thus, the magistrate had a substantial basis to issue a search warrant for Batista’s garage, and we affirm the order denying suppression.”

Commonwealth v. Batista, No. 1130 EDA 2018 (PA. Super. September 27, 2019).

http://www.pacourts.us/assets/opinions/Superior/out/J-S42023-19o%20-%2010415891078797439.pdf?cb=1

IMPAIRMENT PROSECUTIONS – SAFE TO PRACTICE- FULL SUSTAINED REMISSION

Alcohol abuse, prescription pain medicine abuse, sleeping pill abuse, Adderall and ADHD medication abuse. Medical providers suffer from these disorders. However, if you go to work every day and professionally perform your care giving responsibilities should you voluntarily admit an impairment and go into the voluntary recovery program? NO
I tell my clients that unless until you are unable to safely perform your profession, as a medical professional you should never admit an impairment and/or an inability to practice safely. Admitting these fundamental facts could, in the long run, substantially impact your career.
Pennsylvania’s appellate courts are pushing back against the health related boards forcing and pushing practitioners in the PHMP drug and alcohol mandatory monitoring program. For a long time Pennsylvania’s health related boards scare professionals into admitting an impairment an inability to safely practice their profession to save their license. For many professionals, the PHMP, PHP, PNAP SARPH program was not legally or medically necessary and its restrictions too great.
The Courts are remind the boards and the experts they hire that if the license professional practices safely and there is no evidence of patient impact or safety issues, the Commonwealth cannot meet its burden of proof in these impairment cases.
In my recent case, my client plead guilty to two separate DUI offenses. One DUI was for drugs and one DUI was for alcohol. Both abuses stemmed from a medical injury and a psychiatric condition. In criminal court, the professional admitted his need for inpatient treatment. He was sentenced to county drug court, with 45 weekends (90 days) in custody. He was paroled to a drug treatment court, county certified halfway house in which he lived for two years.
The Petition for a Mental and Physical was filed while he was serving his weekend sentences. The Board expert’s report stated the obvious, he was impaired and needed monitoring. My client had nothing to lose. The Board would not offer his credit for time clean and on drug court. So, we fought the case.
Procedurally, we rejected a settlement agreement and waited for formal disciplinary action. That was the settlement offer — enrollment in the DMU. We waited for a hearing to be scheduled. My client remained clean, compliant with treatment conourt conditions, and was a model treatment court advocate. He was employed for the half-way house.
At the hearing, we presented proof of 36 months of negative drug tests and excellent employment references. Significantly, the professional was a nursing burn specialist. He remained employed throughout the entire course of the criminal case defenses, while serving his weekend criminal jail sentence, and living in a halfway house. He was given work release as well. As with every medical professional that fights the impairment prosecution, he remained employed while preparing for the Mental and Physical Evaluation, waiting for disciplinary action to be filed, a hearing scheduled, and the recent decision.
This is the employment history I introduced into the hearing record. The Hearing Examiner thought it was exceptional that throughout my client’s pending criminal cases his employer wanted and allowed him to keep working. The job references were stellar. The Board expert had to agree.
The decision recited these key factors that the Nursing Board’s expert conceded on the witness stand. The expert could not testify that my nurse client was unsafe to practice his profession. The expert also conceded 36 months of negative drug screens revealed the alcohol and drug use disorders were in full sustained remission.
The hearing examiner concluded the Commonwealth did not meet its burden of proof. The Commonwealth could not establish an ongoing, continuing alcohol, drugs, or medical condition that impaired my nurse clients ability to practice his profession. As well, The hearing officer credited my nurse’s employment references, annual job evaluations, and employer testimony come to conclude that he was, in fact, safe to practice.
Absent these two crucial elements in the Commonwealth’s case in chief, my nurse client is not required to go into the PHMP, PNAP monitoring program. This case is a perfect example of why medical professionals should never admit an impairment or inability to practice their profession. The time delay between criminal charges, mental and physical evaluations, and a formal hearing allows the medical professional to organize their life, prepare their defense, and successfully fight their case.
Call me to discuss.

Medical Licensing Board Impairment Prosecutions — The Proper Burden of Proof

I defend hard medical professional impairment prosecutions.  In every Pennsylvania impairment prosecution the licensing board prosecutor must prove that the licensee is unable to safely practice their profession due to a physiological or physiological dependence on alcohol or drugs. The statute governing these types of cases is 63 P. S. §224(a). This is a very high burden.  I recently won the case of Pennsylvania Nursing Board v. Thim on this exact issue.

In this case, the Board prosecutor did not meet their burden of proof.  The Commonwealth’s expert, Pogos Voskania, did not, and could not, diagnose Thim as suffering  from ongoing physiological or psychological dependence on drugs or alcohol. Voskanian tried to connect a bunch of disconnected alcohol use facts into an expert opinion of impairment.  However, on cross examination Voskanian conceded that Thim was an excellent nurse.  He could not diagnosis her with any type of medical diagnosis.

Voskanian did not identify other criteria upon which he based his diagnosis that Thim suffered from an alcohol use disorder.   Voskanian acknowledged that psychological dependence on alcohol is not a disorder identified in the DSM-V. More importantly, Voskanian conceded Thim was competent to practice nursing on the date he testified. Voskania considered it his duty to recommend monitoring for those individuals who evidenced a problem with drinking, “even if they didn’t kill anybody yet” . Although Thim “may be fine,” monitoring was required because of the risk “that an event can take place.”  Dr. Voskanian considered the future risks of Licensee’s behavior, her long history of alcohol use, and her minimization of that use, and came to the conclusion that, based on his professional judgment, monitoring was required. 

The appellate court ruled Voskanian’s opinion testimony was not supported by the factual record.  Absent a medical diagnosis, the Board’s decision stating there was a medical condition was not based upon the factual record. The Hearing Examiner merely accepted Dr. Voskanian’s opinion that Licensee suffered from an alcohol use disorder. For its part, the Board adopted the Hearing Examiner’s findings of fact and conclusions of law, and its Final Adjudication and Order provides no more illumination on this subject than does the Hearing Examiner’s proposed resolution.

My client had some alcohol use issues. However, the appellate court found, Voskanian improperly magnified her alcohol use history to suggest a psychological or physiological dependence on alcohol. Cross-examination of Voskanian led him to concede Thim was safe to practice her profession, was an excellent nurse, and her alcohol issues never boiled over into her professional life.

The appellate court also looked to Thim’s references from managers and supervisors who testified at a hearing about her excellent professional capabilities and reputation.   In light of overwhelming evidence that Voskanian’s testimony was a fabrication, the court ruled

“absence of unequivocal testimony that licensee has a psychological dependence on alcohol, the Board’s finding to the contrary is, at best, baffling.  As the department failed to demonstrate Play since he has a psychological or physiological dependence on alcohol, the boards determination that she is not safe to practice nursing simply can not stand.”

Please call me to discuss your Mental and Physical Evaluation, PNAP Letter of Concern, and Order to Show Cause trying to force you into the DMU and the PHMP.

CHRIA – Expungements, Convictions, License Applications

The Pennsylvania’s Criminal History Record Information Act (CHRIA) 18 Pa.C.S.A. § 9124 controls how public and private entities use Pennsylvania criminal arrest and conviction records. CHRIA controls how Pennsylvania’s licensing boards may use prior criminal convictions in application and disciplinary matters. CHRIA also governs Pennsylvania’s expungement process. CHRIA allows private lawsuits for illegal dissemination of expunged criminal histories. Two recent developments involving CHRIA are noteworthy.

On May 22, 2019 House Bill 1477 of 2019 was introduced in the Pennsylvania Generally Assembly. This bill seeks to amend section 9124(a) of CHRIA. The amendment seeks to limit Pennsylvania licensing board’s ability to refuse, grant, renew, suspend or revoke any license, certificate, registration, or permit based upon a criminal conviction that does not relate to the applicant’s suitability for such license. This is huge. No longer will a conviction be an automatic bar to licensure.

If a felony or misdemeanor conviction does relate to the trade, occupation or profession for which the license, certificate, registration or permit is sought, the applicant is now permitted to establish sufficient mitigation, rehabilitation, and fitness to perform the duties of the trade. This precludes any automatic application license rejection or disqualification.

The amendment, if adopted into law, will allow applicants to rebut any adverse presumption and show rehabilitation. The Boards must consider the criminal act, nature of the offense, age, maturity since the date of conviction, any prior criminal history, or lack thereof, length of current employment, participation in education and training, and other employment and character references. This clean slate provision allows for applicants with a criminal history record to petition the board for a preliminary decision of whether a prior criminal record would disqualify the individual from receiving the licensure.

On a separate front, on May 28, 2019 a federal jury determined damages against Bucks County for its 2011 online inmate look-up service. In 2016 a federal judge ruled the on-line service will illegal, violating the 2011 version of CHRIA. The jury verdict focused on the damages Bucks County’s CHRIA violation caused. Between 1998 and 2011 the on-line look up tool produced criminal histories of approximately 67,000 inmates. However, many of these inmate’s criminal cases were dismissed and expunged. The federal judge found that Bucks County was disseminating criminal histories of individuals whose criminal records were expunged. The jury awarded $1000 in damages to each inmate whose information was improperly disseminated on the website. The total jury award was $67 million.

This is an important case. It reflects a governmental body acting intentional and deliberate in violating Pennsylvania residents’ privacy rights. Bucks County was determined to be not following Pennsylvania law. Its conduct was determined to be willful and in reckless disregard and in different to the inmates’ privacy rights.

This case and the Clean Slate public policy prerogatives reflect the economic changes in the air. Economic equality starts with criminal expungements and privacy rights. Full and fair employment opportunities provide financial security and stabilize our community. When people are able to get jobs, secure professional licenses, and become more productive members of society, domestic violence is reduced, crime is reduced, drug use is reduced, self-worth is increased and family values and protection of our children is increased. Call to discuss your health care related license application.

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