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.

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