PHMP Trickery — Do Not Fall For It

“Please have your approved treatment provider send a written statement authorizing your return to practice and contact me for permission before you begin or return to work in your profession.

Every day I receive calls from professionals with different contacts from Pennsylvania’s Department of State licensing boards. One consistent question I am asked pertains to the above language in the first letter from the PHMP (the “Letter of Concern”). The letter begins with the sentence, “Information has come to our attention that you may be suffering from an impairment that prevents you from safely practicing the profession.” The letter progresses on to read that if you wish to be considered for enrollment in the VRP you must do several things.

Of most concern is page 2, paragraph 4, the last sentence. Here the VRP and the PHMP push the envelope. The paragraph begins with future tenses statements of “To be considered for VRP, you must agree to cease practicing… If you and enroll in the VRP, you may not return.  The last sentence of paragraph 4, however is a present tense sentence that reads, “Therefore, please have your approved treatment provider send  ____ a written statement authorizing your return to practicing, and contact me for permission before you begin or return to work in your profession. “

This sentence is a misstatement of the law. If you are a current licensed professional, this letter of concern does not require any participation in the PHMP or any other monitoring program. Your license is active status, with no restrictions. Participating in any class program or clinical setting that requires continued licensure is not halted by the “letter of concern,” which can not require you to stop working or participating in school.
This present tense suggestion that a licensee is unable to work or stay in school is legally incorrect.

This sentence is a veiled threat, intending to scare individuals into enrolling in the PHMP, contacting their school or work to disclose an impairment, and lose their job.   There is no statutory or regulatory basis for this present tense suggestion that you are unable to work or participate in any program before enrollment in the PHMP.  This is flat wrong, inappropriate and upsetting to me.

The present tense language of the letter of concern is a pure threat and trickery.  My personal communication with both a PHMP caseworker and Kevin Knipe, Executive Director of the PHMP, confirmed my suspicion that there is no legal basis for a PHMP case worker to threaten your job or clinical program with expulsion or halting your participation if you do not enroll in the PHMP.  Prior to your actual enrollment in the PHMP, you need do nothing. You do not have to tell your job or your school of the letter.  You need to call a lawyer who understands what this letter actually means.

The question becomes do you enroll in the PHMP.  My personal suggestion is, absolutely not. My prior blogs deal with the nature matter of the legal admissions and the concessions you give up as a licensed professional when you sign the PHMP agreement, making the admissions that they seek. If you chose to enroll, or not,  in the PHMP, my blogs address the requirements of the program.  As well, if you enroll, then yes, you can not work or participate in your clinical program of an advanced nursing degree unless the PHMP case worker clears it.  But this is after you enroll, not before. The threat to you that you can not continue your work or participation in any program unless you enroll is not true.

The sentence this blog addresses is indicative of the deceptive and threatening manner within which the PHMP program operates even before you are in the program. Just imagine how they will treat you once you admit an addiction, enroll in the program and acknowledge an impairment for which the PHMP case worker must apply the Pennsylvania’s professional license restrictions.

Call me to discuss your case.

Examples of Why Attorney Representation Can Change the Outcome of Your Disciplinary Case

This blog shall focus on two recent Commonwealth Court cases involving professionals who did not retain counsel and sought to handle their disciplinary cases pro se. Unfortunately, each professional had a fool for a client and lost their case. The moral is make sure you retain competent counsel to help explain the legal consequences of every disciplinary action.

Citizens use medical doctors for surgery, they do not do the surgery themselves. Why would you handle your professional license disciplinary case yourself.  Medically you won’t  die, but your career and profession sure could.

The first case involves a realtor who in 2006 engaged in a shady real estate transaction. He was eventually caught and in 2011 voluntarily agreed to a revocation of his license. Apparently he agreed to the license revocation with out hiring an attorney. Unfortunately, the former realtor did not understand the legal significance of the revocation. As the harshest penalty for any licensee, the realtor lost all property interest in, and therefore his due process rights regarding, his professional license.

More importantly, the realtor unknowingly agreed to wait five years to petition for reinstatement of his license. Pennsylvania code section 63 P.S. § 455.501(c) allows a respective license board to reinstate a license only after five years and proof of compliance with all then existing license criteria and qualifications.

Without legal representation, the realtor could not know of every legal ramification of the revocation. It’s obvious to me that he did not have an attorney because he sought reinstatement within two years. Upon submitting a letter application for reinstatement, again without counsel, he was denied. He appealed. This time with counsel. The court rejected any claim to a property right in his licenses due to his voluntary surrender and dismissed the appeal because the Real Estate Commission lacked any discretion in allowing for license reinstatement prior to the five year period. Izzi v. Bureau of Professional and occupational Affairs, Real Estate Commission, 2014 Pa. Commw. Lexis 128 ( Feb 27, 2014).

The second case is Bharkhda v. Bureau of Prof’l & Occupational Affairs, 2013 Pa. Commw. Unpub. LEXIS 519, 16-17 (Pa. Commw. Ct. 2013). Here, the professional failed to have certain persons present to testify at her hearing. Rather, she attempted to introduce into evidence letters from five of colleagues regarding her qualifications and current competence. At the hearing before the hearing officer, the Commonwealth prosecutor objected on the basis of hearsay.

Hearsay is an out of court statement of a declarant made to assert in court the truth of the matter in the statement. In this case, the hearsay statement was that the licensee was qualified and competent. The prosecuting attorney would not stipulate to this evidence and objected to this basic factual issue. As such, the professional was required to bring into court her references that were asserting competence and qualification.

On appeal, Commonwealth Court agreed that the letters were inadmissible hearsay and were properly excluded by the Board. The applicant attached to her appeal of the provisional denial by introducing the various signed letters without any affidavits, notarization, and were unauthenticated by persons who were not present to testify. The letters purported to provide information about Applicant’s qualifications and competence.

The court stated “These letters are hearsay. See Rule 801(c) of the Pa.R.E. (“hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). The letters are also not admissible under any exception to the hearsay rule. A reference letter is hearsay regardless of relevance because it is an out of court statement offered for the truth of the matter asserted, and the declarant is not available for cross-examination.”

Although the rules regarding evidence are generally relaxed in administrative proceedings, the Walkern 5 Rule applies to hearsay evidence. Rox Coal Company v. Workers’ Compensation Appeal Board (Snizaski), 570 Pa. 60, 75-76, 807 A.2d 906, 915 (2002). Under the Walker Rule, the following standard regarding hearsay evidence is applied in administrative proceedings: (1) hearsay evidence, properly objected to, is not competent to support a finding of fact; (2) hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of fact if it is corroborated by competent evidence in the record, but a finding based solely on hearsay will not stand. Shapiro v. State Board of Accountancy, 856 A.2d 864, 872 (Pa. Cmwlth. 2004), appeal denied, 582 Pa. 712, 872 A.2d 174 (2005).

These two cases reveal the importance of hiring an attorney at all stages of any disciplinary proceeding. Any decision to voluntarily surrender your license must be professional counseled, properly negotiated against, and be a last resort decision. I have been contacted by many people with this type of “offer” on the table. I have successfully renegotiated many license surrenders or revocations. Every professional possesses many attributes, qualifications, and family/life reasons why giving up a license is last option to consider.

Fighting your case and/or delaying as long as possible this ultimate sanction is always in the professional’s best interest. Maintaining employment, paying bills, and being able to afford counsel are all realistic considerations in every decision to fight a case versus “giving it up”. However, before throwing in the towel, call me to discuss all options. Let me help you make the correct long-term legal decision in a rational manner and not based upon a knee jerk, rash response to a very scary licensing board letter.

Pennsylvania State and Federal Cell Phone and Car Searches Now With Out a Warrant

The Pennsylvania Supreme Court issued two important evidentiary decisions this week. The first decision focuses on the admissibility of drug evidence discovered after a warrantless automobile search. The second decision focuses on the admissibility of statements and other evidence gathered when police, with owner authority, listen in on drug transaction cell phone conversations.

The car search case is Commonwealth vs. Gary, 2014 PA Lexus 1119 (April 29, 2014). In this matter, Mr. Gary operated a motor vehicle in Philadelphia. He was pulled over due to excessive window tint. Upon approaching the car, the police smelled marijuana. The police asked Mr. Gary if there was anything in the car they should know about. He responded, “Some weed.” Mr. Gary was removed from the vehicle and placed in the patrol car, from which he later attempted to flee.

Pennsylvania automobile stop and search jurisprudence has long established that illegal window tint evidence alone constitutes probable cause that crime, a motor vehicle code violation, has occurred. This permits the police to conduct a motor vehicle stop. That is not the issue in this case. As well, additional probable cause of criminal activity is presented by marijuana odor and Mr. Gary’s legal blurt out that there is weed in the car. He was not detained and he was not under interrogation. Also, prior Pennsylvania Supreme Court precedent allows the police can take Mr. Gary out of the vehicle for any or no reason as a result of a lawful motor vehicle stop (the window tint).

As such, the car stop and initial contact with Mr. Gary is legal and has been for a long time. The unusual part of the Gary case is what the police did after Gary attempted to flee; they searched the vehicle without a warrant or consent, finding two pounds of marijuana in the trunk.

Mr. Gary filed a motion suppress in Philadelphia Municipal Court, which the court denied. He was found guilty of possession of marijuana with intent to deliver and given four four years probation. Mr. Gary appealed the case to the Philadelphia County Court of Common Pleas, which court affirmed the denial of the motion to suppress. Mr. Gary appealed to the Pennsylvania Superior Court claiming the search without a warrant was illegal. Superior Court agreed and reversed the conviction and vacated the evidentiary ruling in the case. The Commonwealth appeal the case to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court spent a significant amount of time reviewing the long history of Pennsylvania case law regarding automobile searches. Without repeating all here,the court eliminated any exigent or emergency need prior to police being able to search a vehicle without a warrant. Rather, they simply said police office who possess probable cause to stop and search a motor vehicle may search that vehicle at the scene without a warrant, If the probable cause to which the police claim as a basis to stop the case is sufficient thereto, then it would be sufficient in a warrant. The level of probable cause may be tested in a court of law. Commonwealth of Pennsylvania police departments no longer are required to secure a motor vehicle and impound it and then wait to secure a warrant before any search.

Importantly, the case does not eliminate the legal requirement that the Police must possess reasonable suspicion of a motor vehicle code violation, probable clause of a motor vehicle code violation, or probable cause that a crime has been committed for which evidence of that crime may be located in the motor vehicle subject to search without a warrant. This test is a fundamental due process requirement imbedded in every state and federal constitution. Every person charged with a crime who possesses an ownership or privacy interest in the vehicle searched is still able to file a Motion to Suppress. The significant aspect of the Gary decision is only that the police no longer need to secure an impound the vehicle and wait to secure a search warrant. The court determined that the inherent mobility of a motor vehicle is a sufficient basis for the Pennsylvania Constitution to allow motor vehicle search without a warrant but based upon probable cause.

The second case issued by the Pennsylvania Supreme Court this week focuses on the police using modern-day telephonic techniques to intercept and utilize cell phone communications to investigate crime. The frequency and widespread use of cell phones and cooperating witnesses prompted the Pennsylvania legislature to amend the Pennsylvania Wiretap Act, 18 Pa. C.S.A. §5701. These amendments were effective in 2012. I have extensively written on the new law for Pennsylvania’s legal newspaper, The Legal Intelligencer. Pleases visit my website webpages under articles published for an extensive discussion on the amendments to the wiretap back.

Suffice it to say for the purposes of this blog that the Pennsylvania Supreme Court ratified the police conduct of listening in on cellular telephone conversations via speakerphone or ear plugs. The court also ratified police conduct of receiving the authority of confidential informant to participate in and impersonate the owner in a cellular phone to secure evidence. The police conduct does not require a warrant or judicial oversight. The police may utilize any and all information gathered from the cell phone conversations to investigate and prosecute individuals committing crimes. Any evidence gathered is admissible in a court of law.

The widespread use of cell phones prompted the case to reach the Pennsylvania Supreme Court. The Delaware County Court of Common Pleas precluded the use of any police evidence secured via cell phone, suggesting that those conversations were subject to Pennsylvania’s Wiretap statute. However, the Pennsylvania Supreme Court merely reviewed the 2011 amendments to the Wiretap Act, which specifically precluded cellular telephones as a device subject to the act. More importantly, the Supreme Court indicated that listening in on conversations with the authority of one of the two recipients was a wholly prescribed and anticipated idea that act authorized as an evidence gathering Technique.

Please call me to discuss the search of your vehicle, the taping of your cellular phone conversations, or any other evidentiary issues secured in your potential for prosecution.

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