The VRP and its Consequences

A standardized contract with a three-year term similar to requirements outlined by PHMP Board ordered Consent Agreements is utilized. Random Observed Body Screens are used to determine abstinence is being maintained. (We may require urine, serum, blood, saliva, perspiration or hair testing in fulfillment of this requirement.) 

(This Quote is taken from a Pa Licenseing Board website discussing the VRP administered by the PHMP)

In preparation for today’s blog I searched the Internet for comments and questions about Pennsylvania’s various licensing boards’ voluntary recovery programs (“VRP”) and the manner in which they entice professionals with drug or alcohol use issues to enroll in their programs. I found numerous professionals concerned about the arduous process, high cost, and undisclosed lengths of time as a professional they were kept from working. Complaints centered on expensive mandatory in-patient treatment or weekly drug testing protocols, work place monitoring agreements, and an inability to even interview for a job unless approved by capricious and degrading case workers. Each comment concluded with the professional wishing they consulted an attorney prior to enrolling in the program.

The nature and manner VRP case workers “trick” professionals with no criminal record or an ARD to enroll in the program is very creative. Sometimes, the standard letter stating with “It has come to our attention you may be suffering from an impairment” is mailed. Other times threatening and provocative telephone calls unilaterally scheduling appointments occur. Or, the best, case workers demand provisionally licensees show up in Harrisburg to sign unknown documents that can’t be mail. Under each of these circumstances the licensee is scared, possibly losing their job, and not advised of the full scope and breadth of the VRP agreement into which they are almost forced to enter.  They are given ultimatums on times to respond and returned signed documents with no explanation of the long term implications of the legal stipulations they are acknowledging.

The legal problem is licensees do not understand the terms and conditions of the VRP agreement and the legal footing upon which the agreement is based. Sections 63 P. S. 224(a)(2) and (b)(4) allow the Board to refuse, suspend or revoke a license if the licensee “is unable to practice professional nursing with reasonable skill and safety to patients by reason of … physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination, so long as such dependence shall continue.” As part of submitting to treatment, the Board is given the authority under Section 14.1(c) of the Law, 63 P.S. § 224.1(c), to require a licensee as a condition of being allowed to continue to practice to enter a VRP Agreement or face public disciplinary proceedings for his or her impairment.

The significance of these provisions, when read together, is the terms of the statutorily mandated VRP agreement. Every VRP agreement requires the licensing to stipulate among many things that:
1) The Board is authorized to suspend, revoke or otherwise restrict the license under 63 P.S. § 224(a)(2);
2) The licensee is unable to practice the profession with reasonable skill and safety to patients by reason of illness, addiction to drugs or alcohol, or mental impairment;
3) The disciplinary action is deferred and may ultimately be dismissed pursuant to the impaired professional section of the Law, 63 P.S. § 224.1, provided the licensee progresses satisfactorily in an approved treatment and monitoring program and complies with the terms and conditions of the VRP Agreement .

It doesn’t matter what time or how long after you enter into the VRP program that you object to the terms of the VRP or decide to not perform in accordance with the Agreement. Once the licensee violates the agreement, the Board moves to suspend or revoke the license. The basis for this is simple: The licensee when they entered the VRP stipulated that they are unable to practice due to an impairment, which inability may only be concluded to be over by the VRP case worker. As such, the licensee has given up their entire defense that they are not impaired or a safety risk. Case law says that any expert testimony that the licensee post VRP enrollment is “cured” or not a danger to the community and can practice safely will be found to be not credible.
In cases involving a single DUI or a single positive drug test of any scheduled narcotic for which there is no medicinal basis, entry into the VRP is an acknowledgment that the licensee has a drug addiction or problem.  It is this drug or alcohol problem that must be candidly acknowledged, treated, and for which inpatient and outpatient treatment with drug testing will be required. All costs will be born by the licensee.

If the VRP comes knocking two years after the alleged DUI, which occurred after a family marital event, lets say, and you really have no drug or alcohol issue but the VRP is chosen rather than face “possible” public disciplinary action, the licensee has now stipulated to having a drug addiction for which they are unable to practice safely. Having agreed to this, every VRP licensee is thereafter unable to seek employment, continue their employment, or be hired by a job without the VRP notifying the employer. As well each employer could be required to approve a workplace monitor of the licensee who will report to the VRP case worker. This employment will also be delayed after SATISFACTORILY COMPLETING 30, 60 or 90 days inpatient treatment, which cost will be born by the licensee.

The issues become, why should the VRP be chosen, by whom, and under what circumstances?  If some of the facts discussed above are familiar to you and your case, call me to discuss your options and the agreement being presented to you.  Please understand the legal consequences of entering into the VRP.

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Nursing License Discipline, Willful Misconduct, and Unemployment Compensation

The first battle in nursing, work-place disciplinary cases is the unemployment compensation fight. Even though nursing positions are in high demand, unemployment compensation bridges the gap until new employment is found. Here, employers lob their first volley of demeaning, demoralizing, and casting blame accusations against their former nurses.

The unemployment case commences with job termination based upon allegations of a nurse violating arcane, untrained, work place rules. In reality, the employer is seeking a scapegoat to protect itself from a potential but yet-to-be filed negligence claim.  As a hard working nurse, the rule violation is typically baseless (unsubstantiated by the actual facts of the work place circumstance). Once fired, the nurse must file for unemployment compensation to pay bills.  The Hospital/employer responds by “hanging the employee out to dry,” alleging the employee intentional or deliberate work rule violations warrant termination.

On October 16, 2013 the Commonwealth Court this fact pattern in Patricia Phillips v. Unemployment Compensation Board of Review. In that matter, the employer contested operating room nurse Patricia Phillips’ eligibility for unemployment compensation benefits. Ms. Phillips was a circulating operating room nurse responsible for ferrying “labeled” biopsy and operating room specimens to the pathology lab for testing during the operation.

Similar to many other workplace circumstances, Ms. Phillips was on leave for several months prior to this specific incident that led to her termination. Upon returning to work she sought additional training in the new operating room specimen cataloging procedures. Due to the understaffed and overworked nature of operating room nursing staff, she was not given an opportunity to receive the full training on new specimen cataloging procedures.

Unfortunately, within one week of her return to work, after a relatively complex surgical procedure, she delivered specimens to the lab that were not properly identified. Upon completion of the post-operation briefing, the oversight was discovered and the specimens were properly identified. However, the employer terminated Phillips’ employment. The hospital claimed a violation of workplace specimen labeling rules for which Phillips was aware and the violation of that rule alone automatically resulted in her ineligibility for benefits.

The initial unemployment compensation referee agreed -no benefits. Nurse Phillips appealed. The Unemployment Compensation Board of Review agreed – no benefits. Phillips appealed to the Commonwealth Court of Pennsylvania, the first appellate court able to review decisions of law by the lower administrative courts. The Court reversed and found that the mere existence of a workplace rule and mere noncompliance therewith does not render claimants automatically ineligible for unemployment compensation benefits.

Willful misconduct is not, the court stated, based upon any single one factor but is determined in light of all circumstances. Mere noncompliance with one or two workplace rules does not establish an intentional violation or indifference to an employees’ duties. Rather, the employer must establish a deliberate violation of the employer’s policies or a willful disregard of the employer’s interest. Only direct evidence of a petitioner’s conduct and intentions will satisfy this high burden of proof.

The Commonwealth Court determined that an employee’s inadvertent violation of employer’s workplace rule does not automatically constitute willful misconduct warranting a denial of benefits. The court ruled that mere direct but simple violations of workplace rules, no matter how many, alone do not constitute a basis for denial of unemployment compensation benefits. Rather, the employee’s appropriate, timely, and justified explanation of the factual circumstances precluding her from knowing or following the rules must be addressed in the record and considered by the referee when making a determination of intentional or willful misconduct.

The applicability of this case to the nursing realm is important. Every nurse that is terminated from their high stress, high-volume, under-staffed, and highly complex workplace environment should apply for unemployment benefits. An employer’s claim that you failed to comply with workplace rules as the sole justification for termination is false. Hostile work/patient environments, overpopulated hospitals, and understaffed nursing departments requiring nurses to perform two or three jobs without adequate training, supervision, and compensation are all factors that must considered by any unemployment compensation referee.

This case clearly stands for the statement “it’s not what happened on the job, but why it happened.” Please call me to discuss your workplace termination. In this hostile workplace environment and heightened regulatory reporting time, every job place termination will result in a license reporting investigation by the state licensing boards. Start out your defense of your license at the first administrative hearing possible.

Legal Ethics in Representing Professionals and their P.C.’s

During the course of my medical licensing defense practice I have been confronted with the ethical conflict of being asked to represent both a professional corporation and its doctor shareholders, one of which was committing criminal acts while dispensing the medical services of the corporation. In this corporate/business setting, serious legal questions abound about the nature and extent of individual shareholder’s responsibilities to the corporation when licensing matters are arising. At the same time, the complex Medicare/Medicaid/health insurance fraud issues that trigger federal and state criminal prosecutions trigger licensing ramifications.

The ethical issues that professional clients seeking legal counsel must consider include 1) shareholders’ duties to disclose (to whom) a professionally licensed business partner’s criminal conduct, 2) the P.C.’s attorney’s duty of confidentiality to the corporate client versus individual shareholders, and 3) the individual shareholder/professional’s attorney’s duty of confidentiality to the client versus the corporation and fellow shareholders. Conflicts of interest, attorney-client privilege issues, scope of an attorney’s representation, and who the attorney actually represents are significant questions the need to be answered upon hiring an attorney.

Each member of the P.C. may potentially face federal False Claims Act offenses, mail fraud or health care fraud claims, and could be charged under conspiracy or aiding and abetting theories of liability for the acts of one shareholder/professional if no disclosure is made. As well, criminal forfeiture of excess Medicare and Medicaid payments made to a P.C. because of one fraudulent doctor/shareholder could take place along with fines, interests, and federal insurance program disqualification.

Before counsel is retained, the following questions must be answered:

1) for what purpose is an attorney being hired – by an individual doctor under a whistle blower provision and self-reporting;

2) for what entity is an attorney being hired – by the Board of Directors of a closely held corporation to advise the company on how to address potential criminal conduct of a member/shareholder, or

3) why is an individual doctor hiring the attorney (to address withdrawing from the corporation and abandon any conspiracy).

As well, a shareholder who reports to the federal authorities a criminal act of a partner breaches their fiduciary duty to the corporation but may insulate them self from criminal liability.

The Pennsylvania Rules of Professional Conduct address many aspects of an attorney’s role in advising the P.C. and its shareholders. Any fee agreement must necessarily address Rule 1.2. This rule requires the scope of the representation and allocation of the authority between the attorney and client be clearly spelled out. Rule 1.4 and 1.6 delineate the nature and extent of the confidential communication between the attorney and the client. (The issue of who is the client is always complicated). Rule 4.3 addresses the problem of an attorney for the professional corporation communicating with non-represented professionals who are shareholders to the corporation.

Surrounding all of these issues is the discovery of any potential criminal conduct, confidentiality of such knowledge, and the divided interests of the owners of the professional corporation. Representation of a corporate entity whose shareholder(s) is engaging in a course of pattern of criminal activity that jeopardizes the corporate entity and other shareholders create significant conflicts of interest. Attorney representation of the P.C. and disclosure of knowledge of this criminal conduct secured through confidential attorney client communication or representation and the subsequent disclosure of such to non-clients (the other licensed professionals), represented by counsel or not, creates significant legal ethics and even malpractice liabilities for the lawyer.

Please call me to discuss your predicament.

Increased LIcense Enforcement –Work Place Erros and Drug Diversion Issues

The cross roads of my legal practice, criminal defense and professional licensing defense, is becoming a very busy place. Increased enforcement from the various license boards for even minor regulation violations has become rampent. I daily receive telephone calls from many licensees whose health care employers blame them for a variety of general work place deficiencies that are not a licensee’s fault or responsibility. Strident, hard working and ever listening, I defend these professional licensees from the myriad of unfair employment circumstances that enter the realm of State Board discipline.

Our current heightened enforcement environment is due to many reasons, all of which are irrelevant for this blog. Typically, though, prior medical and nursing malpractice claims force health care employers to reorganize work place protocols for care, documentation, and medication administration. These changes in administration protocols are poorly thought-out, the front line nursing staff is not consulted, and most new processes can’t be implemented or simply don’t work.

When the new program’s deficiencies are discovered, work-loads are increased to levels that are unsustainable. Human break downs occur and the diligent sacrificing CNA, LPN, or RN with no insurance, or no time to care for themself, make a minor work place mistake. Through no fault of their own, placed in an impossible work environment, and tasked with job responsibilities that two or three people couldn’t perform, mistakes will occur. Job termination happens and the health care provider must report to the state board the errors.

Unfortunately, the hardest working health care professionals are the first ones to be accused and cast aside. However, not before statements are taken, admissions to certain activity drawn out, then termination is an inevitability. Now an investigator calls to accuse and scare. Call me before you talk to anyone.

The economic downturn combined with contract employees with no health insurance has also created the perfect storm for diversion cases. Either self-medicating (drinking or using illegal drugs) or diverting readily accessible medical grade narcotics has become a huge problem as of late.  These difficult cases begin when a health care provider does not care for them self, or do not go to doctors to update prescriptions, or simply ignore their own medical and mental health break downs. Caring for everyone but themself makes this worker susceptible to diverting prescription waste for their own usage.

If this is taking place, a drunk driving offense, or on the job injuries requiring blood drawn for OSHA compliance, will result in a positive drug test.  A positive blood or urine test when placed in context with the a heightened reporting burden and responsibility of the employer/health care provider, requires automatic termination and potential license and criminal ramifications become very real issues.

However, both proof of a theft and the medical basis for the medication in one’s blood are two evidentiary hurdles investigators can’t get over. Either practice or custom work place deviations from the PIXUS, or any other type of self counting drug dispenser, due to sharing of passwords complicate this issue. Long term documentation of medical conditions and prescription usage will also discourage prosecution. Under either circumstance, statements should not be given, call backs to Board or Attorney General investigators should be delayed, and counsel secured.

Read my other blogs on the significance of PNAP and how going into this program is not the best, first choice, for many health care providers.  Please call me to discuss your case.

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