What to do when the professional receives a “Letter of Concern”.

Routinely, criminal contact (from public intoxication, a DUI, to a drug diversion allegation or sleeping in the work place) comes to the attention of every professional’s licensing board and the PHMP.  This triggers a “Letter of Concern”. This is a letter sent to the unsuspecting licensee, commencing with the sentence; “It has come to our attention that you may be suffering from a drug or alcohol impairment that affects you ability to practice your profession. We are concerned.” This letter is from the PHMP and suggests participating in an evaluation to protect your professional license in a confidential manner without disciplinary action.  DON’T FALL FOR IT.

At this point of the many, two reactions are typical.  NO WAY.  I’m not going.  These licensees hit the internet, research, find my blogs and call me.  Good plan. You may skip to the end of this blog. For those who are on the fence, keep reading.

The second reaction is that many think the evaluation will help. These inexperienced licensees, but to no one’s surprise, attend the evaluation, thinking he or she will pass “with flying colors”. This thought process is a mistake and wrong. Unbeknownst to these professionals, the evaluation is conducted by untrained, non-medically based treatment evaluators. These social workers or counsels work at these facilities, get paid for conducting these evaluation and routinely diagnose people to need PHMP monitoring and treatment at their facility. These licensees forget that the PHMP referred them to the treatment facility who has a financial interest in finding a treatable condition for which it would be capable of providing care.

For the professional that freaks out but is on the fence about attending, researching what are PHP, PHMP, & PNAP will lead them to my blogs and this possible blog.  After reading you will realize the evaluation is merely a fishing expedition. The evaluator is fishing for anything upon which they can hang their diagnosis of a drug or alcohol abuse, use, or dependence disorder for which treatment and/or monitoring is required. My prior blogs review what documents these evaluators seek, medical records they wish to review, and medial authorizations they try to get signed.

These evaluators only know of you what you the professional tells them. There is no prior basis for professional monitoring. While telling the truth is important, you have no obligation to attend a PHMP suggested evaluation stemming from a “letter of concern.” There is no Board order. Your professional license is not under investigation and no discipline has been handed down compelling attendance or treatment. My question then, is, why go?

This voluntary participation is the problem. Attending these evaluations and being completely cooperative provides the PHMP, your Board, and the untrained social worker evaluator information of which all three are unaware, don’t know and do not have a right to know.

Cathartic as it may feel to unburden and talk to this PHMP evaluator, most of the time it will lead to significantly more legal problems. Disclosing information and authorizing the evaluator’s entity to obtain confidential, non-work related medical records opens the professional up to a much deeper evaluation than the “letter of concern” originally suggested or even what the professional anticipated in attending the evaluation.

Many professionals receive proper medical care and take prescribed medications for short or long term diagnosed medical or mental health conditions. Many evaluators know nothing about the complexity of medical care, treatment regimens, prescription medication protocols, or dosages. These are medical decisions for which only licensed doctors can interpret and address. Telling drug social workers at a treatment facility about the prescription medications only leads to their stereotyping you into some medical condition requiring monitoring or further evaluations. This just deepens the fishing expedition.

When you read your “Letter of Concern” do not freak out. Call me to discuss your options. DO NOT SCHEDULE OR ATTEND THE EVALUATION.

The document requirements for the professional license applicant or during renewal.

I receive many calls inquiring about what legal documents relating to prior arrests, convictions, or investigations need be attached to a professional license original or renewal application. These questions come from qualified individuals with some prior criminal entanglements which may/must be disclosed to a licensing board.  Disclosure of criminal convictions, felony arrests, or prior disciplinary actions are typically required upon initila application regardless of when they occurred. Renew application are more difficult to address.

Understanding what must be disclosed is the first step. From the criminal record standpoint, pending misdemeanor cases (typically DUI’s) at renewal need to be disclosed.  Open and pending felony charges for which there is no conviction, also need to be disclosed at renewal or in the initial application. Misdemeanor convictions, ARD, or other non-trial dispositions that have not been expunged need to be disclosed at both times. Only expunged matters based upon enrolling in ARD or a dismissal need not be disclosed.  Disclosure requires production of a certified criminal record secured from the county courthouse in which the manner was handled.

Immediate disclosure is not required of any initial contact with the law.  It is only upon renewal or initial licensing that the criminal contacts must be disclosed.

Any pending professional disciplinary action may need to be disclosed. “May” depends on the nature of the pending investigation. If the investigation is a PHMP referral to the VRP and the licensee has not elected to enroll, disclosure is not required as there is no pending disciplinary action. Even if there is a petition for a mental and physical valuation for which a probable cause screening committee has required a mental and physical evaluation, if the results of that evaluation have not come back yet, there is no pending investigation. There’s been no formal disciplinary action filed.  As such, disclosure is not required.  Formal disciplinary action would need to be disclosed.

Any decision to enter the PHMP through the VRP, with a signed consent agreement that is been entered as a Board order from a licensing board, requires disclosure. If a licensee has decided to enter the VRP disclosure maybe necessary. Here, disclosure is required to other states for which the licensee hold a license and is typically a condition of the PHMP/VRP consent agreement.

Mere contact by Commonwealth or other state’s narcotics enforcement officers or Pennsylvania professional board investigators regarding workplace related issues, for which neither a criminal prosecution nor state board investigation has commenced, does not require disclosure. Mere contacts, without the filing of formal charges or disciplinary action do not constitute an investigation. This is much more the case in the criminal context, which must be initiated by the filing of a criminal complaint.

This blog focuses on the reporting requirement in the Commonwealth of Pennsylvania. Disciplinary or criminal action from outside the Commonwealth may require reporting in that home state that is different from the Commonwealth of Pennsylvania’s reporting requirements.  Formal filing of criminal charges outside the Commonwealth of Pennsylvania by other states or the federal authorities will require reporting in Pennsylvania if felony charges are filed and you are in your renewal period.  Providing copies of the documents in relation to that action or charges will be necessary. The same applies for disciplinary action by other state licensing boards.

Medicaid and Medicare preclusion letters may constitute an investigation by an agency requiring disclosure. Obviously, the preclusion letter would be based upon conduct of which the licensee has already been aware, charged criminally, or may constitute the basis of a pending disciplinary action. These preclusion letters nonetheless may require reporting to your licensing board.

Please call me to discuss any of the issues presented by Commonwealth of Pennsylvania or other states or federal authorities disciplinary or criminal action that affects your Pennsylvania professional license.

What is PHMP “Cooperation”

A licensee who has chosen to enter the VRP, enters a program the PHMP administers and is monitored daily by a PNAP, Sarph, or other Board case worker. The touchstone of every program is binding the licensee to “cooperation”.  Cooperation requires each participant to insure their assigned case worker perceives “cooperation” at every level of the program. Cooperation of everything and anything a case worker requires is the fundamental part of the agreement.

Perceived cooperation starts before the PHMP/PHP contract is signed, regardless of whether the respective professional board has executed the Consent Agreement. (See my blog discussing the 6 to 9 months between entering the PHMP/PHP and receiving the formal consent agreement.) Cooperation begins with the initial assessment, not contesting the untrained social worker’s specious conclusion of an impairment, and enrolling in the designated drug or alcohol treatment regiment at their location for which they have a financial interest.

Compliance means signing releases for entire medical histories, work evaluations, drug and alcohol test reports, and employment monitoring documents and then paying for all such documents. Compliance means not working in the specific areas of professional practice of which your case worker unilaterally decided was against the program. Compliance means going to drug or alcohol testing facilities on time, complying with their specimen donation protocol, and paying for all associated costs every day or week even when you are not working because your case worker unilaterally decided that you can’t work.

Compliance means eating certain foods, undergoing certain medical procedures, and releasing all pharmacy records. Compliance can also mean (according to your designated caseworker) not contesting certain certain chain of custody mistakes or errors in specimen collection, chain of custody, or specimen retesting requirements. Compliance could also mean not seeking earlier evaluations for return to work or termination of the PHMP program upon completion of the time set forth in the PHMP contract.

Compliance, or lack of compliance, could also mean acknowledging or not agreeing to a positive/failed drug test for a substance not permitted in your PHMP contract. Noncompliance is not admitting to a violation.  Caseworkers seek admissions of violating the drug or alcohol provision of the contract.  These admissions constitute an automatic basis to terminate or extend the PHMP contract.

At this juncture a lack of admission/compliance prompts every caseworker to change their demeanor. Rather than an advocate, caseworkers become policemen seeking to secure evidence/admissions. Admissions of violating the drug policy for any type of banded substance are used against the PHMP participant in a Rule to Show Cause petition for termination or revocation proceeding. Minor violations of drug and alcohol policy (based upon complete abstinence) are treated the same as major violations of the program for prescription medications.

Counsel is necessary to help navigate these issues of compliance or noncompliance. Statements made to caseworkers are always used against the participant. They are placed into pleading language presented to the board as a basis for termination or revocation. Call me to discuss.

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