Criminal Charges – Nursing Board Petitions for Mental and Physical Evaluations – Remaining Silent

Effective October 2015 Pennsylvania nurses became responsible for reporting to the State Board of Nursing any criminal arrest/charge (not just conviction). The practical impact of this new reporting regulation is now being felt.

Typically, criminal charges lodged against nurses relate to drug use or diversion and driving under the influence (DUI) of alcohol. These criminal charges, once reported, result in “Letters of Concern” from the Voluntary Recovery Program (VRP), PHMP demands for enrollment, and possible Board action.  Nurses who do not enroll in the VRP and PHMP (which they should not – see my other blogs), typically end up having filed against them a Petition for a Mental and Physical Evaluation. This is OK and not the problem, though, because now an expert will do the evaluation, not a PHMP social worker.  My many archived blogs address all aspects of the PHMP and why not to enroll.

The new wrinkle in the Petition for Mental and Physical Evaluation process, compelled via an Order to Show Cause (OSC),  is that many professionals will not have completed the criminal process involving the drug or DUI related offense. The criminal matter has yet to reach the County Common Pleas Court in which the charges originate. In some cases, the nurse has yet to be approved for ARD or even had their preliminary hearing. This is significant for the professional who is ineligible for ARD.

Professionals with prior criminal records (yes, you still can get a license or not loose one and incur a second offense) are ineligible for ARD. They must fight the DUI charge. In this context, every professional has a right to remain silent.  The Commonwealth must prove each element of each criminal offense without using the professional’s own words to secure a conviction. The professional has no obligation to make a statement in any criminal prosecution.  In Pennsylvania the professional does not have to help the prosecution prove any element of any offense lodged against them. This is the professional’s Fifth Amendment Constitutional right to remain silent.

The criminal offense reporting regulation ignores this constitutional protection.  Expedited OSC petitions compel professionals to talk. In the Mental and Physical Evaluation, the professional is extensively queried about the criminal conduct, historical criminal activity, and recreational non-prescribed drug use. These statements are not confidential.  The Petition for Mental and Physical is authorized by the Probable Cause Screening Committee and not the entire Professional Board. The expert who conducts the evaluation and authors a report to the Commonwealth eventually testifies in a formal disciplinary hearing.

Statements to the expert are now public, subject to discovery by the criminal court prosecutor.  Routine reciprocal discovery requests in criminal cases include whether the defendant has made any prior statement, admission, or testified under oath in another proceeding regarding the facts are allegations contained in the criminal matter. The expedited disciplinary process now raises the question in civil disciplinary prosecutions whether or not the professional, contesting disciplinary action, should speak and waive their constitutional right to remain silent in the criminal context.

Courts in Pennsylvania have addressed this issue in administrative driver’s license actions.  In Pennsylvania driver’s license suspension proceedings civil trial courts routinely continue the civil license suspension trial stemming from a DUI.  These twin civil/criminal prosecutions originate from the same DUI arrest investigations when the defendant refuses to submit to a breath or drugs or alcohol test.
Practically and legally, my legal advice in these representations includes advising the DUI defendant to continue the civil matter until the DUI case is closed. The nursing board, it’s infinite wisdom, either is unaware of this process or chose to ignore professionals’ Fifth Amendment right against self-incrimination.
All professionals should be aware of this conflict created by the Nursing Board in these expedited OSC petitions seeking Mental and Physical evaluations when a related DUI or other criminal matter is pending.  Please call me to discuss how to resolve this conflict and your professional license disciplinary matter.
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PHMP’s NEW TRICK – License Inactive Documents

Pennsylvania’s monitoring program, PHMP has instituted a new trick in their playbook. Now, with every PHMP questionnaire and data sheet, PHMP/PNAP caseworkers are including a voluntary license inactivation document. WHAT IS THIS? DON’T SIGN IT.

This is a new attempt to limit voluntary recovery program (“VRP”) participants from changing their mind before the Board enters a consent agreement formally accepting them into the VRP. In essence, most potential monitoring program targets/enrollees are actually INeligible for the VRP. Most do not suffer from any drug or alcohol addiction that renders them unable to perform their profession.  The caseworkers just pressure them to admit this.

These VRP participants, however, mistakenly sign the contract, get stuck with a false bills of goods, contact counsel and seek to change their minds. I TELL ALMOST EVERYONE TO WITHDRAW FROM THE PROGRAM, DO NOT ADMIT TO ANY IMPAIRMENT AND FIGHT FOR THEIR MEAL TICKET.  NEVER ADMIT ANY IMPAIRMENT.

If the licensee signs this new form, voluntarily rendering their license inactive, there is no point in changing their mind to go back to work. They can’t because their license is now inactive.  Formal Board action is required to reactivate that license. While the same PHMP Mental and Physical evaluation (SEE MY OTHER BLOGS) will take place, the licensee now cannot work during this 3-7 MONTH process. This is compared to not signing the form, not going into the program, fighting the case, and working pending the PHMP evaluation with an expert, not a cracker jack box assessor!

My prior blogs discuss why almost every licensee should not voluntarily enroll in the monitoring program. The blogs discuss the burdens of proof and difficulty of complying with all confirms and conditions of the monitoring program. GO READ THEM.

Importantly, there is a 6-8 MONTH time lag between the initial PHMP/PNAP “letter of concern” contact with the licensee and when a formal signed board approved consent agreement binds a licensee into the PHMP. Remember, this is a voluntary process. Prior to an executed professional license board FORMAL consent agreement being entered, EVERY licensee (doctor, nurse, pharmacist) is free to change their mind and withdraw from the program.

If a licensee signs a voluntarily inactive agreement, the program is no longer voluntary. If the licensee signs a voluntary license inactive document, changing their mind and withdrawing from the PHMP — because of the bait and switch tactics of the caseworkers quickly reveal themselves — signing an agreement to have a license deemed inactive handcuffs the licensee into the program.

Remember,  the VRP is just that; voluntary. Every licensee must acknowledge a drug or alcohol addiction and that renders them incapable of safely practicing their profession. If a licensee does not suffer from a potential drug or alcohol abuse or dependence disorder and/or are capable of safely practicing your profession, DON’T SIGN ANY DATA QUESTIONNAIRE, PHMP CONTRACT AND, ESPECIALLY, AN AGREEMENT TO VOLUNTARILY RENDER A LICENSE INACTIVE. Once the license is inactive, whether you change your mind about the program or not, withdrawing from the program does not allow a licensee to work.

That’s another important aspect of these PHMP contracts. PHMP/PNAP/PHP/SARPH agreements require licensees agrees to abide by any terms and conditions imposed by their caseworker. Some caseworkers compel not working in the licensee’s profession for a short period of time. Nonetheless, previously, the license was still active. Now, if a licensee signs that inactive agreement, the caseworker has ultimate control over the licensee, their career, their profession, and their wallet.

The case worker has the licensee’s professional career by the neck and will not let go until licensee completely satisfy them. TRUST ME, THE CASE WORKER AND PHMP case managers are not and never act as the licensee’s “advocate.” Their allegiance is to the board, their job, and their pay check, not the licensee’s.

With a license inactive, the caseworker must file a formal board document asking for re-activation prior to even them even being able to permit the licensee to work (even when in the PHMP). The Boards sit on these requests for multiple months.  As such, these voluntary inactive documents further extend and strengthen the caseworkers’ control over the licensee. It is inappropriate, unacceptable and could be deemed it illegal to compel a licensee to sign a interactive document as part of PHMP contract.

Remember, enrollment in the PHMP does not constitute discipline of a license. Only after the Board accepts the PHMP contract in the form of a consent agreement has discipline been entered. Opting out of the PHMP prior to Board approval does not constitute discipline and the licensee’s license is not restricted in any manner. If the licensee withdrawals from the PHMP and has not signed any license inactive document, they can go to work right away.

If the licensee agrees to sign the interactive document request, there’s no difference between withdrawing from the PHMP or not, as they will not be able to work until the license is reactivated. DON’T SIGN THIS NEW DOCUMENT WITHOUT LEGAL COUNSEL. DON’T SIGN THIS DOCUMENT UNDER ANY CIRCUMSTANCES, NO MATTER WHAT.

Lawyers, Fee Agreements, & Arbitration Clauses — A Conflict of Interest

Recently, there has been noteworthy news coverage of corporations compelling consumer disputes be resolved in private arbitration, not the public court systems.  This is accomplished by including in consumer contracts waivers of constitutional rights to a jury trial and use of the federal and state civil courts. Whether it is Comcast Corporation in your cable bill or ATT in you phone bill, the United States Supreme Court has suggested these are permissible contractual clauses.  Locally,the Philadelphia County Court of Common Pleas addresses this issue in the context of attorneys asking their clients (legal consumers) to waive these same rights in legal fee agreements when hiring counsel.

The facts of giving rise to this dispute may be well known to many.  In April 2012 fire consumed a  storied Villanova, Pennsylvania estate. Jerald Batoff owned the estate.  It was rented it to a Canadian couple. During the term of the lease, which required rental insurance, the historic and refurbished mansion burned down. The insurance litigation between Batoff, the tenant and the rental insurance company, Chartis Insurance, apparently resolved with an $18.5 million dollar insurance payout. Batoff was to receive more than $7 million dollars.

Batoff originally hired Douglas Windin, Esquire and Reed Smith, LLP, to represent him in the dispute over the rights to the insurance proceeds.  The attorney contract into which Batoff entered with Reed Smith included an arbitration agreement clause encompassing all disputes arising from the inception of the attorney-client relationship.
Soon after reaching the global settlement, the tenants filed suit against Chartis, freezing the insurance proceeds that Windin and Reed Smith secured.  Batoff was now damaged as he was sucked back into the tenants’ litigation with Chartis through the settlement release indemnification clauses.  Batoff may have even been required to pay Chartis’ attorney’s fees incurred in fighting the tenant’s continuing litigation.
In 2014, as a result of the tenants’ continuing litigation,  Batoff  files suit against Windin and Reed Smith, claiming the attorney negotiated a settlement on behalf of Batoff without any notice to Batoff or participation of the tenants. Batoff also claims the terms of the settlement release, which  require  Batoff to indemnify and hold harmless Chartis of any further claims made by the tenants, is negligently negotiated.

Reed Smith objects to Batoff’s legal malpractice claim, seeking to compel contractual arbitration and dismiss the claim from the Philadelphia County Court of Common Pleas. The Court determines the issue is one of first impression in the First Judicial District of Pennsylvania. The issue is phrased as “under what circumstances can and attorney enter into an arbitration agreement with a client from the inception of the attorney client relationship?” “Does the attorney have an ethical obligation of advising the client of such waiver in the unfortunate and event that a dispute as to the quality of representation arises?”  Stated another way, will the courts allow a sophisticated attorney to take advantage of a client and require arbitration when a dispute arises as to that representation.

The court finds that attorneys have an ethical obligation to not engage in a conflict of interest by including mandatory arbitration clauses in their attorney client representation contracts. The court finds that a conflict of interest in their legal representation is created when attorneys seek to have a potential clients waive civil jury rights in favor of contractual, mandatory arbitration clauses.  The court determines that it is unethical to represent someone conditioned upon a waiver of their civil jury right and basic pretrial discovery procedures.
The court reviews various cases and local bar association ethics committee discussions of this issue. Some cases hold arbitration clauses within contract/retainer agreements infringe upon the fiduciary and ethical obligations attorneys owe their clients. Some suggest the clauses are properly enforceable only if the client is represented by counsel and there is a separate contract page fully informing the potential client of the scope and effect of the waiver clauses.
Pennsylvania Rules of Professional Conduct, Rule 1.8,  comment 14, emphasizes the legality of these types of arbitration clauses but mandates that the client before informed pre-signing of the scope and affect of these clauses.  This “notice provision” requires a separate page in the fee agreement with separate acknowledgments of each waiver clause and its “scope and affect” on the client’s constitutional rights.   A 2014 Federal court decision discussing this issue found that Rule 1.8 of the Pennsylvania Rules of Professional Conduct imposes a “special duty” on attorneys to put their clients on notice of the scope and effect of an arbitration agreement.
The Constitutional rights of which attorneys can request waiver are broad and significant.  The Louisiana Supreme Court states that the client must be specifically informed of their 1) right to a jury trial, 2) waiver of the right to appeal to the civil courts, 3) waiver of their right to the broad discovery rules under either Louisiana or federal civil procedure, 4) the costs of arbitration, 5) the specific issues to which the arbitration clause applies, and 5) the ability of the client to make a disciplinary complaint.  Pennsylvania contract law will allow these “arms’ length” transactions between legal consumers and their counsel, with these same caveats.
In reviewing these extra jurisdiction notice provisions, Philadelphia County Court of Common Pleas determined that the arbitration clause included in Reed Smith’s standard  Attorney client fee agreement did not contain these appropriate and proper notice provisions.  Read Smith attempted to suggest that Batoff, a experienced real estate investor, deserved a higher standard of proof warranting imposition of the arbitration clause. The court disagreed, finding no authority for a higher standard of care of disclosure required between sophisticated and the average legal client.
This case teaches that it is the law firm that requests a waiver of civil jury rights and free court systems, in favor of expensive – attorney controlled arbitration – of which the legal consumer must beware.  Why hire an attorney who, from the outset, limits your right to sue him/her if they make a mistake?  Why choose the attorney who, from the out set, creates a conflict of interest in their representation?  Why choose the attorney who seeks to protect themselves over their clients when the proverbial sh-t hits the fan?  Why choose an attorney whose first inclination in the representation is anticipating their own mistake rather than success in the representation.
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