States’ Legalization of Pot and How Pennsylvania’s refusal to Legalize Pot Effects You

Other states’ legalization of marijuana has had a huge impact on Pennsylvania residents. Pennsylvania has not taken any steps to legalize possession or personal use of marijuana.  Neighboring state’s legalization and lax federal enforcement has resulted in Pennsylvania authorities engaging in a heightened enforcement atmosphere, not relaxed one.

For example, recently a suburban Philadelphia doctor and his daughter were charged possession with intent to deliver marijuana (“PWID”) after discovering that they were growing marijuana in their house.  They were caught after the doctor began selling his home-grown marijuana to his patients. While marijuana may serve some medicinal purposes, easing or slowing the progression of glaucoma, Pennsylvania has yet to allow medical marijuana. As such, a Pennsylvania doctor’s possession, selling and illegal prescribing pot to his patients for a suggested medical purpose is illegal.

The number of plants possessed in the house is also a big issue. Twenty eight marijuana plants were seized from the doctor’s home along with cash and contraband.  These illegal plants in a personal residence being used for criminal purposes subjects the doctor’s Haverford Township home subject to forfeiture.  The house was being utilized to engage in a criminal enterprise.

Whether you agree or disagree with the slow legalization of pot in Pennsylvania, it currently is, and always will be, a crime to sell pot if you are not a properly licensed entity.  Eventually, there will be a significant regulatory scheme in place to in Pennsylvania to buy and possess personal use cannabis.  Look to California, Arizona,and Colorado for examples.  As such, a doctor will never be allowed to grow his own pot and sell it to his patients for his prescribed medical treatment.

On the DUI front, the Arizona Supreme Court recently rejected a marijuana DUI prosecution.   In that matter, an individual was charged with driving under the influence of marijuana because traces of THC remained in his bloodstream several days after he legally smoked marijuana. A blood test revealed the presence in his blood the cannabis metabolite carboxy – THC.   However, this chemical does not cause an impairment.  As such, absent an impairment, the Arizona State Supreme Court ruled the individual was not “incapable of safe driving”.  This is called the “impairment” rule — a person must be actually impaired to be guilty of the DUI offense.  The charges were dismissed.

Pennsylvania does not follow this rule.  Pennsylvania is a “per se” violation state.   Pennsylvania law only requires the mere presence of the cannabis metabolite in a Pennsylvania automobile operator’s blood during motor vehicle operation for a violation of 75 Pa C.S.A. §3802(d) to be found.  This rule does not matter if the operator of the car is a resident of another state.  If you drive on Pennsylvania’s roads, you are subject to Pennsylvania law.  Obviously, the car must be legally stopped or investigated for another motor vehicle violation, and the THC is discovered, before a guilty verdict may be found.   The same mere presence law applies to all Pennsylvania professional license cases and health care work place rule violation cases.

New Jersey and Arizona follow an impairment statute which requires an expert to testify that any illegal substances in the blood rendered the person “impaired” and not able to operate a motor vehicle safely.  Pennsylvania requires the government to only present a drug report showing the presence of the drug.  As such, in Pennsylvania a person could be found guilty of DUI if they legally use medicinal or recreational marijuana outside of Pennsylvania but is stopped in Pennsylvania for some motor vehicle violation and the stop results in a blood draw due to suspicion of DAI or DUI.
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The Pennsylvania licensing boards will follow Pennsylvania criminal statutes regarding possession and use of marijuana laws in Pennsylvania, not other jurisdictions. The lack of impairment will be irrelevant for any Pennsylvania licensing board investigation of illegal drug use or possession.  Please call to discuss your case.
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The Professional License Board Will Not Allow Me To Take My License Test Due To A Criminal Record

On every professional license application, the applicant must truthfully answer all prior criminal arrest and conviction questions. Prior criminal contacts range from minor shoplifting offenses, illegal drug possession offenses, to driving under the influence charges (DWI, DAI or DUI).  Most jurisdictions make no distinction between felony and misdemeanor charges or convictions and admission into pre-trial diversions.  Acknowledging a prior record in the application will create a stumbling block to securing a license.

Certain criminal convictions may not preclude the qualified applicant from obtaining a professional license. In some cases, the licensing board will provisionally deny the drug or alcohol DUI convicted applicant the right to sit for the license examination. A provisional denial will be tendered regardless of whether the applicant was placed in a first time offender pretrial diversion process (PTI or ARD) or was convicted.

The provisional denial requires the licensee to submit to a PHMP evaluation and agree to comply with all treatment recommendations as a precondition to sitting for the license exam. Typically, the evaluation is performed by a local, self-serving drug and alcohol treatment program. Almost always some impairment is found, or unable to be ruled out, regardless of the time difference between the criminal case, drug use history, and the license application. The Board utilizes the assessment to further buttress the impairment conclusion and compel formal PHMP participation prior to licensure.

The qualified applicant should not have to enroll in the PHMP as a condition of being granted a license. My prior blogs suggest that these assessments are conducted by upon untrained, non-experts who render non-scientific opinions that are not recognized in any court of law. It is my opinion that the otherwise qualified applicant should not enroll in the PHMP as condition to receive their license or sit for the test. Please review my prior blogs that extensively address the problems with these programs and the nature and manner of the drug use admissions sought, required monitoring, and the consequence of these legal admissions. Requiring three years of probation, expensive drug testing, practice monitoring, and case worker supervision is not appropriate.

Once the PHMP assessment is completed (some impairment having been found) and the applicant decides to not enroll in the PHMP, a formal denial letter is issued. The burden shifts to the applicant to prove their qualifications. This means the licensee must timely appeal the notice of denial and present their case to the Board. Presenting the case means retaining and attorney and hiring a medical expert to present to the Board a qualified opinion of a recognized expert to counter any PHMP assessor’s suggestion of impairment.

The case then becomes a battle between the applicant’s expert and the Board’s expert. Securing an expert to testify does not end the case. The expert must review all medical and criminal records and interview the applicant for 2 to 3 hours. Thereafter, the expert renders a written opinion to a reasonable degree of medical certainty that no impairment exist. It is imperative to disclose to the expert all prior contacts with the criminal justice system, medical conditions, and educational qualifications. The expert must be aware of all the necessary facts to render an opinion to a reasonable degree of medical certainty.

The types of criminal cases that may necessitate monitoring obviously include one or two drunk driving offenses. These cases, whether involving alcohol or alcohol and other prescription or nonprescription narcotics, do not automatically suggest an impairment or raise patient safety concerns. My typical client may have multiple DUI offenses spread over 10 years.

It is possible that once the Board or their attorney reviews an expert report, they may allow the applicant to sit for the examination. If not, the case will proceed to a hearing in which the Board will review the appropriateness of the application and the expert’s conclusion.  If the Commonwealth does not hire an expert, the appeal should be granted without PHMP conditions. This is because the Board may not make factual findings or legal conclusions without evidence. If a license Board does not hear a Commonwealth expert testify about an impairment, and you have presented an expert, this will necessitate finding of no impairment because there is no evidence or legal basis to find monitoring as an appropriate cautionary step.

Please call me to discuss your application case, any prior criminal records criminal convictions which you may have in the context of your seeking a Pennsylvania professional license and how I may assist you secure your future career.

The Mental and Physical Evaluation

In this “highly sensitive” climate of state license investigations, almost any professional work place complaint can become the basis for a license disciplinary action. It is the manner in which the licensee responds to the first contact from either work, the Board, or a criminal investigator that determines how the investigation will proceed.

As I have blogged numerous times, do not cooperate with any first request for drug testing. Absent chemical proof of illegal narcotics ingestion, any job action (termination) is based upon workplace policy and not evidence.

Thereafter, retain counsel to begin preparing for a possible probable cause petition requiring a Mental and Physical evaluation. This blog will discuss this part of the process.

The probable cause petition is a confidential stage in the per-disciplinary proceedings. It is not a disciplinary action. It is the prosecutor’s confidential application to the probable cause screening committee of the license board. They present “your set of facts,” asking the committee to compel an evaluation by the Board’s expert.

The licensee only finds out about the petition after the order permitting the evaluation is signed. The purpose is to confidentially ascertain whether the licensee is impaired or unable to practice their profession safely. The full Board does not learn of this action if the expert determines there is no impairment or safety concern. Your case is closed with a “no action” letter.

It is in this stage in the process that counsel is very important. Remember, the first stage is dealing with an investigator. This second stage is preparing to meet with the prosecutor’s expert who determines whether an drug or medical impairment exists. Here, counsel’s preparation and attendance at the evaluation significantly improves your performance and probably leads to a “no action” letter.

What is your set of facts? I have read factual allegations ranging from merely falling asleep in the 7P-7A shift, with nothing else, to criminal allegations of drug diversion, money theft, and multiple drunk driving offenses. The majority of my recent cases involve very specious suggestions of alcohol or drug use with no chemical evidence. Anecdotes include an employer securing a positive reading on a portable breath tests (PBT) due to mouth wash. Suggestions of improper drug wasting procedures with no positive drug test are rampant. Absent proof of drug use, the expert will rely on the actual evaluation and a medical records review.

Significantly, the time delay after the initial job incident creates an advantage for the licensee. In this heightened reporting environment, front line investigators are overworked with very high case loads. Prosecutors’ case loads preclude them from emergently filing petitions. Delays are routine.

It is in this time period that baseless suspicions of drug use can be countered and put to rest. Retaining counsel is the first course of action. Bi-monthly drug tests and accumulation of medical records and license qualifications are the next steps. Preparation for the pending mental and physical evaluation is the priority. An effective performance at the evaluation is the most important.

How well you prepare for and present yourself at the evaluation will determine how your case will conclude. A recent hearing officer’s report described a professional unable to directly answer the expert’s questions, appearing to be high, and failing to accurately and adequately set forth her medical history to counter suggestions or inferences of long term prescription drug abuse. Attending the evaluation pro se (without an attorney), she was unprepared and not expecting the trap into which she was cast. A lengthy suspension was ordered.

Properly preparing for the Mental and Physical exam is not just securing all medical records and documentation of care. It is ensuring you have counsel to properly present to the expert you and your case. Developing a theory of you and your case to effectively explain the work place incident or medical care is paramount. Ultimately, failure to effectively communicate your story will sabotage your career and endanger your license.

Please call me to discuss the application for a Mental and Physical evaluation that arrived in the mail.

Every Petition Must Be Timely Answered

Every licensed professional must respond to every Board proceeding, petition, or order to show cause. An April 4, 2014 case of Joseph Szerencsits, Jr., vs. Board of Professional and Occupational Affairs, Board of Accountancy, 2014 Pa. Commw. Unpub, Lexis 206, discusses this rule. The case is a perfect example why a license must respond to every petition.

In this case, the accountant’s client requested 2007 and 2008 tax returns be prepared. The accountant failed to file tax returns and stole money from the client. Eventually the IRS filed a tax lien against the client with interest and penalties. The State Board of Accountancy was noticed of these legal errors and, in 2011, issued a Rule to Show Cause alleging the petitioner had violated the Certified Public Accountant (“CPA”) law.

The accountant/petitioner did not respond. In 2012, the client/victim of the malpractice died. One year later, in May 2013, the Accountancy Board deemed the matters admitted because the accountant failed to respond. The Board issued a final adjudication and order finding a violation of the CPA law, indefinitely revoking petitioner’s license, assessing a civil penalty, restitution, and cost of investigation.

Petitioner/accountant appealed to the appellate court. He claimed both that because the victim died and the Rule to Show Cause was filed one year after the initial filing of the pleadings the Board was precluded from acting against him and his license. The Commonwealth Court rejected this affirmative defense of laches (claims of delay in the prosecution for which petitioner was prejudiced because of his now inability to present his client/witness) .

The court concluded that because the petitioner/accountant failed to respond to the initial Rule to Show Cause, the matters were deemed admitted. The Board’s adjudication had to be timely responded. Any claim of latches must be raised at the administrative level and failure to do so results in a waiver of that defense. By not responding to the initial Board action, petitioner was now foreclosed from doing so, resulting in the loss of his professional license.

The application of this case to my practice is very clear. Administrative actions commence with an initial investigation, attorney communication, numerous correspondence, and lengthy delays between the actual occurrence of the act resulting in discipline or any formal board proceeding. All of this time must be properly accounted for and explained by the Boards.

Objections to time delays, prejudice to a licensee as a result of those delays, and defenses of laches must be raised as soon as possible. Failing to respond to petitions, ignoring mail, and doing nothing precludes application of these defenses. The time period begins to run within 30 days of the original filing of the petition. Due diligence in the practice of your profession is also commanded in responding to any disciplinary actions.

Retaining an attorney as soon as possible so as time timely stop the administrative proceeding clock is mandatory. If you do not delays of one week after the thirty day time period within which a response may be filed will foreclose any defense to an improper license action.

 

Please call to discuss your case or email me the board petitions that have been filed and for which your are seeking counsel.

The New Drug Testing Environment of Pennsylvania’s Health Care Professionals

On March 12, 2014 the New York Times published an op-ed Why Aren’t Doctors Drug Tested? The opinion piece spells out numerous national cases of drug addicted doctors and nurses engaging in extensive 1) addiction-related malpractice, 2) patient assisted suicide, 3) personal drug overdose, and 4) drug tampering (stealing patient’s medications and shooting up with the same needle and then infecting the patient with their HIV or hepatitis C) resulting in serial transference of infectious diseases. The article set forth extensive documentation of medical professionals theft of hospital medications creating a drug addiction epidemic which in turn resulted in serious patient safety risks and deaths.

Accordingly to many Pennsylvania Department of State licensing board investigators with whom I and clients meet, this is the current professional climate in which Pennsylvania’s healthcare professionals and patients reside and work. Since the investigation of Herbert Gosnell, M.D. (the Philadelphia gynecologist/abortion doctor charged with murdering babies) broke into the open, Pennsylvania’s professional licensing board investigators have been very busy.  After Gosnell, the professional board investigation departments initiated a new professional enforcement regimen.

On the drug use facet of these investigative bodies, every single positive drug test of any licensed professional mandates a state investigation. Employers, employment agencies, pre-employment screening agencies, and hospitals must report  to a professional board the professional’s positive drug test. The regulatory reporting requirement applies to any drug test secured for any reason. Medical based drug testers are required to give the professional patient the opportunity to self-report within 30 days or the hospital must report.

In sum, any manner within which a state investigator finds out that a professional’s body fluids contain non-prescribed and/or illegal scheduled narcotics, an investigation will be commenced.   Unfortunately the first step in these investigations is statements taken, admissions potentially sought, or additional drug tests secured. This is either at the employer level or through the state investigator. Thereafter, contact with a  PHMP, PMP, or PNAP caseworker who will seek acknowledgment of drug impairment or addiction and voluntary admission into an inpatient treatment facility.  Second evaluations are sought, which routinely find some type of substance abuse disorder regardless of whether future positive drug test exist. This is all a trap. Please read my other blogs on these tactics.

Looking back at the New York Times article and other local newsworthy criminal/malpractice cases, state investigators of the nursing boards are now pressing these cases with extreme urgency, diligence, and persistence. They want admissions and stipulations of addiction and impairment where none exist and scare and threaten every hard working professional with their license. Please call me to discuss any contact with your employer, substance-abuse social workers, PNAP or PMP monitoring programs, or state criminal investigators.

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