The Conflict between Legalizing Cannabis and the Professional Licensee

The wave of marijuana legalization is crashing across the country. I recently appeared on Art Fennel Reports, on the Comcast Network arguing against the legalization of the personal use of marijuana. I maintain this position in light of the extensive impact a positive blood test showing the presence of THC in one’s blood will have on the professional licensee.

In my television appearance my position rested solely upon the societal choice of selling and taxing cannabis to fund schools, similar to government support of gambling in the form of state lottery systems. I disagree with this type of regressive tax on our society’s neediest to fund government programs that wealthier individuals should support.  I also disagree with making cannabis more accessible to the children who will now attend school high on pot and be even less likely to learn or simply will not show up for school.  My position stands regardless for the fact that the war on drug has been lost. ( Importantly, everyone agrees the drug laws would not change for the illegal sale of cannabis. This means that incarceration levels and state level prison sentences would not be affected by legalizing personal use marijuana. )

As for the professional licensee (doctor, dentist, nurse, real estate agent, pharmacist, and/or ambulance tech) smoking cannabis or eating food made with marijuana will still present the THC drug in your blood.  Pennsylvania’s current driving after imbibing drug law, 75 Pa. C.S.A. § 3802(d), does not require intoxication or impairment to be guilty of driving while high. Getting high a day or two prior to a car crash or traffic violation that may/could evolve into a Pennsylvania DUI investigation could result in a blood draw showing THC in the blood. If the THC metabolite is present, one will be charged with DUI.

Importantly, if there is a car accident (either in the workplace and OSHA or the federal labor board investigates or after work hour on your private time) your blood may still be drawn. The presence of TCH in a licensee’s blood from private personal recreational cannabis smoking or eating, will also generate a State Board investigation. Obviously this investigation will be in addition to any criminal prosecution or work place employment related investigation.

Simply put, legally getting high on cannabis it is not worth the high cost associated with defending one against the state trying to revoke or discipline the professional licensee for such conduct.   The complications that arise from the two very simple scenarios overrides the benefits of legalization of marijuana. My prior blogs set forth the extensive administrative nightmare each license confronts when a state license board attempts to discipline or strip a licensee of their professional license.

Unfortunately, the people advocating for the legalization of marijuana do not consider the over lapping legal consequence the decades of civil penalties that have been erected to scare people into being safe in the work place (any work place with any type of license) and not show up at work (or use your professional license) high. It is these scare tactics and penalties that are are not being removed with the legalization of pot and with which a licensee may be confronted if caught on the “job” high.

Pennsylvania PHMP/PMP Initial Contact Letter and Evaluation Process

Sections 22 and 41(5) of the Medical Practice Act, 63 P.S. §§ 422.22 and 422.41, authorize the Pa State Board of Medicine to refuse to issue a license based upon competent factual or legal basis upon which the State Board of Medicine may conclude that licensee “fails to demonstrate the qualifications or standards for a license” or that he/she is “unable to practice the profession with a reasonable skill and safety to patients.”  

This first blog of 2014 will focus on the issues presented for all PA professional licensees who 1) reject or choose to undergo a PHMP/PMP evaluation, 2) are assessed by a non-expert to be in need of a monitoring, and 3) chose to not enroll in the PHMP/PMP. From this point forward, the matter will be referred to the State Board prosecutor for potential disciplinary action.

Initially, the Board becomes aware of a possible impairment.  Every licensee should question the nature and means with which the PHMP/PMP became aware of your supposed impairment.  Your truthful answer regarding any criminal charge on the initial or renewal license application is one way.  Others ways include anonymous reports or police or work place referrals.  

Once the Board becomes aware, its first step is the initial “letter of concern” and the PHMP/PMP referral, with accompanying questionnaire and medical authorization forms.  Included in this letter is almost a demand that you contact the PHMP.  However, you are not obligated to answer the questionnaire or sign medical authorization documents.  Absent a Board order compelling participation in the PHMP, rejecting the PHMP is a valid decision because of the consequences of PHMP/PMP enrollment.  

I advise all clients to not answer the initial questionnaire and refuse the PHMP/PMP because any PHMP participation requires a licensee to admit at a minimum of having a drug or alcohol addiction and being an impaired professional.   This label sticks with you for the rest of your professional life and is reason alone to reject the PHMP.  Review my other blogs for the affect of this admission on a licensee and how the Board uses the admission of impairment to easily strip aware a license after participating in the PHMP/PMP.


If one does answer the questionnaire, the first step in the PHMP process is the interview by the “assessor”.  In almost all circumstances the assessor, seeking a patient, will find an impairment and the need for monitoring.  This person is not an expert and the impairment finding is not a valid medical opinion.  You have yet to meet with the Board hired expert.  These are two valid legal reasons to reject the assessor’s determination of a “suggested impairment requiring monitoring.”

It is my opinion that any Board action (conditional denial of a license or suspension of a license) based upon an assessor’s opinion rests upon an incompetent expert and/or an unrecognized quasi-medical opinion.  The director of the PHMP does not evaluate you.  Rather, the “assessor” or social worker does and they are not licensed experts in any field recognized in any court of competent jurisdiction.  The conclusion or opinion that a licensee is suffering from “a suggested impairment requiring monitoring” is not a medical opinion rendered to any reasonable degree of certainty of any recognized scientific field of study recognized by any competent court in this Commonwealth.

Consequently, it is my opinion that the Board violates federal and state substantive due process rights by relying upon a lay person/non-expert’s unrecognized, unscientific opinion as competent evidence to either discipline an active licensee or provisionally deny the qualified applicant. Absent this assessor’s brief interview with you, there is no way for the Board  to conclude that you “failed to demonstrate the qualifications or standards for a license” or that you are “unable to practice the profession with a reasonable skill and safety to patients.”  Lesson here is DO NOT ANSWER THE QUESTIONNAIRE AND DO NOT PARTICIPATE IN THE PHMP/PMP.

I also feel that the assessor’s opinion referenced and relied upon by the PHMP Director and the Board is a net opinion lacking a factual or medical basis. The conclusion, not even a real medical opinion, is rendered after one meeting.  The opinions therein are also issued by a person or entity possessing a financial interest in the evaluation.  The “suggestion of impairment” necessarily includes a recommendation of treatment by the individual issuing the recommendation.  Thus, the recommendation is based upon a financial motive, is biased, and not competent evidence upon which the Board may rely to provisionally discipline or deny an otherwise duly qualified applicant.  

Because the Board’s factual and legal decision of discipline or license rejection is predicated upon errors of law, violates constitutional rights, and is unsupported by substantial evidence (such relevant evidence as a reasonable person would accept as adequate to support a conclusion), I appeal every Board action based upon an assessor’s opinion.   

Please call me to discuss your case before you sign any PHMP/PMP CONTRACT OR ADMIT TO ANY IMPAIRMENT.  Next blog will talk about the terms of the PHMP contract.

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