Participate In Your Professional License Defense

Occasionally my daily review of Commonwealth Court decisions discussing professional licensing board cases reveal remarkable decisions. This happened again this week. I came across a decision discussing a professional who chose to represent himself. Unfortunately, the individual had no comprehension the legal mess he was creating for himself by not employing an attorney.

Stubbornness and disgust towards the regulatory process of a licensing disciplinary action creates a blindness in unrepresented parties. These professionals almost always fail in their both legal obligations to comply with the professional licensing board procedures and hearing regulations while representing of themselves at these hearing. This weeks case is another example of this unfortunate circumstance.

Dr. Mohammed Ali Hammad received notice of an investigation and a request to inspect his medical office. The notice required Dr. Hammad to allow a Veterinarian Board professional conduct investigator to visit his office to conduct a visual inspection of medical records and office administration. Dr. Hammad refused unless he was given a copy of the formal complaint and the name of the patient who initiated the investigation. This is not permitted. All complaints are confidential in the investigatory stage. While the investigator may read the complaint, a formal copy of the complaint and the name of the complainant is not disclosed.

Each licensing scheme has similar investigatory authority requiring licensees to allow, without subpoena or formal court process, an inspection and copying of medical or other business records. Each professional board’s regulations have long established their authority to conduct investigations of their licensees through a board investigator. The investigator closed the file and notified the legal prosecution department of Dr. Hammad’s refusal to allow the office investigation consistent with the Veterinary Board rules and procedures.

The failure to comply with the basic investigation requests creates a separate cause for discipline distinct from the underlying basis of the investigation. Dr. Hammad’s refusal to allow the inspection or produce medical records escalated the cause of his eventual discipline. This case discusses the discipline against Dr. Hammad’s solely for this stupid refusal to comply with the investigation.

In a prior 2013 disciplinary petition for some insignificant issue Dr. Hammad did file an answer to the case, object to the delegation of the case to a hearing examiner, and request a formal board hearing. However, Dr. Hammad did not appear at the prior board hearing. The state proceeded with that prior discipline case without him. There the hearing examiner proposed order and adjudication found Dr. Hammad violated Veterinary Board rules. That proposed adjudication immediately suspended Dr. Hammad’s Veterinary license. The board excepted the proposed adjudication, entered a final order, to which Dr. Hammond did not appeal.

Dr. Hammond nonetheless continued to practice veterinary medicine. This case then arose when an investigatory contacted him to conduct an office visit. Here, he was specifically cited for not allowing the inspection and for failing to honor the prior Veterinary Board order. Having failed to go to the hearing again, the discipline this time was not suspending, but revoking Dr. Hammad’s license to practice veterinary medicine and ordering him to pay a $20,000 civil penalty. This time the doctor appealed to the Commonwealth Court.

The appeals court had no patience for the doctor’s argument. Claims of due process violation’s fell on deaf years. The court cites long-standing procedures that notice of hearing prior to imposition of sanctions is the sole procedural due process required. Finding that Dr. Hammad received notice and “failed to appear to engage in the process he was due does not amount to an error in the process or to a violation of his rights. ”

Dr. Hammad’s objections to Veterinary Board process and authority to discipline are also summarily swept aside. Suggesting the Board did not have authority to fine him for wasting it’s time and investigatory expenses are quickly dispensed. The board did have pity on him and reduce the civil fine from $20,000 to $15,000. Nonetheless the appeals court strenuously affirms each and every licensing board’s authority to investigate, seek licensee compliance, and enforce their rules of discipline on their licensees.

This case is another example of how important it is to have an attorney at the inception of every single professional license investigation or disciplinary matter. Timely responding to petitions and requests for hearings are not enough. Licensees do not know the administrative rules and procedural safeguards to ensure protection of their professional license and therefore their livelihood. Difficult financial times do not give rise to wholesale abandonment of one’s license. Giving up should never be the ultimate decision in any case.


Drugs and the Mental and Physical Evaluation – The Assessment Trick

I have been overrun by client consultations, new cases, and handling existing cases involving Pennsylvania licensing board’s Petitions for Mental and Physical evaluations. I attend almost every one of these with my clients.  Two consistent fact patterns that start this entire process are employment based positive drug tests and a driving under the influence conviction or ARD enrollment.  A criminal charge or failed drug test typically result from self-medicating due to a physical injury or mental health condition. Sometimes there is the single use of sleeping agent with the unlucky and unfortunate call for a random drug test at work. Professional bureau investigators and employers take these failed drug tests and DUI ARD or convictions very seriously.  The Petition for  Mental and Physical is the Boards’ way to have a professional medically evaluated.

What the employee/professional does upon failing a drug test or receiving a DUI (and now reporting it to the Board in thirty days as required) dictates how the case could conclude. Obviously failed drug tests are a huge concern when the discovery drug is one for which the licensee does not have a valid prescription. The same concerns exist for a drug related DUI.

“What is done” by the professional should be nothing!  Mandatory Board reporting is a must.  But do not participate in any employment related or Voluntary Recovery Program (“VRP”) voluntary assessments. Don’t fall for the threat from a PHMP or PNAP case worker saying “We will have to close the file, report you to the legal department, and you could loose your license.”  This is an empty threat.  Single offense DUI or testing positive for a medication utilized to treat a documented medical condition will not result in legal action.  These PHMP case workers are merely trying to scare professionals into going to their assessments — which never work in the licensees’ favor.

Any employment related drug test failure automatically results in job termination and Board reporting. Here is where employers and Board investigations begin. It is my firm conviction that the professional should never attempt to explain a long-term medical or mental health condition that may have gone un-diagnosed or untreated. Sheer speculation on the licensee’s behalf that disclosure will save a job merely invokes sheer terror of potential patient injury on the employer’s behalf.

Why would a professional attempt to “confess” or seek lenience  from an employer whose sole focus of any drug related investigation is to absolve itself of potential civil, criminal or regulatory liability. At this juncture, an employer (hospital, nursing home, medical practice, surgical group, and/or staffing agency) tries to secure incriminating statements from the employee/licensee, secure cause for termination, and concrete evidence for Board reporting.  In this context, the medical employer becomes a mandatory reporter to the Board, with immunity to provide all information it secured in its investigation. The statements, drug tests, and any medical records an professional provides merely become the stepping stone and jumping off point of a Board investigation.

Agreeing to attend an employee assistance program or PHMP assessment upon receipt of a letter suggesting such (see my other blogs) just creates more evidence for the employer and Board to utilize to discipline the licensee. Professionals seeking PHMP assessments “to be cleared because this will all go away” have just given away the farm. Licensees of all sorts are then required to participate in mental health fishing expeditions with compelled disclosure in a non-confidential mental health and medical treatment histories, assessment conducted by untrained individuals who are required to disseminate any and all information provided.

Almost one hundred percent of my clients have attended these assessments.  These non-expert assessors are financially motivated to generate business.  Stringing together standard and typical histories of long term social alcohol use that culminates in a DUI (criminal interaction) allows the Livengrin, Marmont, Caron, Malvern Institute social workers to speciously conclude a DSM -IV diagnosis for alcohol abuse or dependence.  It is absurd but is based only on the words coming from the professional licensee who has just agreed to disclose all confidential medical information, signed forms, and told them everything; all done with the hopes of “making this go away” or to “keep my job and license”.

This is the biggest mistake of your career.  I have stated it many times in my blogs;  Trying to save one’s current job at the expense of your lifetime professional license is analogous to trying to win a small battle in a war, which win will merely cause the loss of the entire war.

Suggestions of impairment, threats of reporting the licensee to the board, or turning files over to the legal department are typical scare tactics. Testing positive for ambien used in a single plane flight, amphetamines used on a single occasion from a family members’ prescriptions, or a weekend back strain causes one to borrow a family members tramadol are all typical occurrences. These actions do not amount to an impaired professional suffering from a drug or alcohol addiction.

Suggestions of such are grossly out of context and not a basis for any person to enroll in the PHMP.  The burden of proof is: Does the licensee suffer from a drug or alcohol addiction or disease then renders them incapable of safely practicing medicine?   How can one positive drug test allow for this conclusion.  Untrained caseworkers seek to secure or a long-term drug or alcohol use history through superficial application of DSM criteria. Overlaying such with a single positive drug test, caseworkers feel empowered to take advantage of licensees who are afraid of “Board involvement” in their license. However, such cannot be farther from the legal truth.

I get exasperated at the level of deceit and untruths told by these caseworkers to take financial advantage of the licensee at a time of grave professional concern.


Interstate Medical Licensure Compact Act — Pennsylvania’s Ill Drafted Version

Today our country’s geographically diverse population seeks competent medical care in their small outlying communities. This is prompting hospital administrators to investigate different ways to reach all of their potential constituents. The Affordable Care Act, by providing tax incentives and tax credits, is incentivizes businesses to create different modes of delivery of medical treatment to satiate the medical demands of communities where current medical care is sparse.

Increases in demand for medical care is coinciding with the 21st century’s growth in internet based communication capabilities and electronic medical record storage possibilities. This perfect equilibrium of expanding medical demands and new medical delivery capabilities is prompting many states to consider allowing out of state medical practitioners to receive expedited licensure through a national compact process.

The formal name of the law is the Interstate Medical Licensure Compact Act (the “Act”). With a stated purpose of strengthening avenues to health care through recent advances in the delivery of health care services, member states of the Act seek to develop a comprehensive process for expanding physician licensure from their one primary state to all states that participate in the Act. The Act seeks to adopt a prevailing standard for licensure that will allow medical boards of a participating state to retain jurisdiction to impose license discipline while promoting patient safety and expanding treatment options.

Pennsylvania has not yet enacted the Act. The Act has been introduced in the Pennsylvania General Assembly as House Bill 1619 of 2015. A similar bill has not been presented in the Pennsylvania Senate. The initial bill has been referred to the House Committee on Health as of October 14, 2015.

House Bill 1619 of 2015 requires the applying physician to designate a member state “as a state of principal license” for the purposes of registering for an expedited license. A state qualifies as a principle state if the physician possesses a full and unrestricted license to practice medicine in that state, is the location of the physician’s primary residence, and at least 25% of the physician’s medical practice is in that state.

A physician seeking multiple jurisdiction expedited licenses through the Act initially applies to their principle state medical board for “eligibility” of an expedited license. The principle state issues a letter of qualification verifying or denying eligibility, with a minor appeal process if there is a denial. Preconditions of principle state eligibility include standard competency and educational qualifications, a satisfactory criminal background check, and determination of suitability in accordance with 5 C.F.R. § 731.202.

Eligibility determinations are then delivered to an Interstate Licensure Commission, which will establish the registration process for licensure is member jurisdictions. The physician identifies in which states she is seeking licensure under the Act. Thereafter a member board shall issue the expedited license to the physician to practice medicine in the issuing state(s) upon payment of designated issuing state’s fees and costs. The practice of medicine in any issuing state will be consistent with the Medical Practices Act and laws and regulations of the both the principle state and member states.

An important part of the Act is the joint investigation and disciplinary process. House Bill 1619-2015 current form allows member boards of each state to participate in joint investigations by other member boards. Subpoenas issued by one member state shall be enforceable in another member state. Member boards may share investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the Act. Any member state is authorized to investigate actual or alleged violations of statutes authorizing the practice of medicine in any other member state in which the physician holds a license to practice medicine. This sounds like a free for all, pile it on, rugby game.

Any disciplinary action taken by the physician’s principle licensing board (their home state) shall, under House Bill 1619 of 2015, be deemed unprofessional conduct subject to discipline by other member boards in addition to any violation of the Medical Practices Act or regulations of the principle state. Revocation, suspension, or surrender of a license in lieu of discipline or suspension shall cause the physician’s license to suffer similar status by each and every member board to which that physician is licensed.

Conversely, however, any reinstatement of the physician’s license by his principal state medical board shall not affect the encumbered status of that physician’s license in other member states unless and until each member state takes individual action to reinstate my license. This provision allows each member board to conduct the practice of their medical board license disciplinary action independent of the Act. This process is different the current due process rules that require each state’s discipline of a multiple state licensed professional to be independent of, and not link to, any prior state’s discipline.

Any discipline action taken by the physician by a member board, not the principal license board, may be used by other member boards as a conclusive disciplinary action warranting imposition of the same or less or sanction or a separate disciplinary action by other member boards. As well, any license investigation by a member board that becomes the subject revocation, surrender or relinquishment in lieu of discipline shall cause the physician’s license to suffer the same consequences without any further action in each other member board without the subject to any disciplinary investigation. The physician truly becomes hostage to the initiating state’s disciplinary process and must fight it to the death so as to avoid any automatic domino effect.

The Act seeks to balance the states’ citizens’ need for medical care, a nation’s policy interest in granting access to high quality medical care to all citizens, and a physician’s ability to provide competent medical service regardless of artificial state borders against patient safety and criminally active doctors. The primary concern of the Act is who will become the disciplinary supervisor of doctors practicing throughout the country under the Act. While this is a serious and weighty issue, the Act in its current form fails to safeguard the medical license of Pennsylvania’s many doctors who will choose it as their primary state of licensure.

Pennsylvania’s medical schools have produced thousands of doctors over the years. Many secure initial graduate school training licenses and stay in the Commonwealth after residency to care for Pennsylvania’s residents. Many choose Pennsylvania as a home. The Act as drafted in House 1619 of 2015 will discourage this.

Physicians who seek to practice medicine in multiple states through the Act will sacrifice a significant degree of due process if any disciplinary investigation is commenced or levied against them. While there is significant financial interest to provide internet-based face time oriented medical practice across state borders without driving distances, to save lives, the inevitable due process concerns are significant. Exploding populations are overrunning medical investigatory boards with rampant anonymous complaints that will warrant investigation.

Every day baseless complaints of Medicare Medicaid insurance fraud, pill mills, sexual assaults, or drug theft and diversion are generated from specious reporters who are either aggrieved patients, angry disgruntled business partners, jealous or angry co-employees, or scorned lovers. House Bill 1619 of 2015 exposes Pennsylvania’s principle-based medical practitioners to unilateral concurrent disciplinary process of member states without the ability to respond, investigate, or even defend oneself in a court of law. Member state’s unilateral actions will automatically trickle back to the physician’s primary licensure state, causing potentially automatic disciplinary action there. The Act as written is not in the interest of Pennsylvania medical community.

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