The VRP and the “Letter of Concern” — They Are Not Concerned!

I have written about this issue many times.  I, though, continue my one attorney crusade against the PHMP improperly offering a drug and alcohol treatment-abstinence program to vulnerable licensees who neither suffer from drug or alcohol addiction nor are incapable of safely practicing their profession.  By this I mean offering any professional enrollment in the Voluntary Recovery Program “VRP” whether or not they suffer from an addiction or impairment.

The VRP does this by targeting professionals charged for the first time with a DUI or other minor alcohol or drug related summary offenses.  These professionals received the VRP “letter of concern” at a very vulnerable time.  Especially nurses who must report criminal charges with in thirty (30) days of arrest, not conviction. However, first time DUI offenders are typically eligible for Pennsylvania’s ARD pre-trial diversion program.   As such, there will be no conviction.  Professionals receiving the “letter of concern” while the DUI prosecution is just starting are terrified of losing their license. Many unilaterally, without consultation of licensing counsel like me, go to the VRP assessment and then sign a PHMP consent agreement thinking it saves their license while the prosecution is pending. It only makes the problems worse.
The 2006 case Wittorf v. State Board of Nursing, 913 A.2d 956 (Pa. Cmwlth. 2006) is on point. Wittorf voluntarily entered the VRP to save his license after a first time DUI offense.  (If he had competent counsel he would not have entered the VRP to start and his license would never have been affected.) Soon after, however, the rigors of the abstinence-based PNAP administered PHMP became clear.  Work and life affected Wittorf’s ability to comply with every condition of the program.  He sought to exit the program.  Wittorf claimed he did not suffer from a drug or alcohol addiction that rendered him an impaired nurse. Wittorf presented numerous witnesses at the hearing supporting his lack of addiction and any professional impairment. Wittorf lost his petition to exit the VRP and have his license returned to non-probationary status.
Wittorf forgot he signed the standard PHMP agreement/contract and Board Consent Agreement.  Each document contains admissions that the signatory is an alcoholic (or drug addict) and such impairs their ability to practice their professional safely. This is the only legal fact upon which the Court needed to rely in denying Wittorf’s motion.  By signing the agreements Wittorf (and every other licensee in the same position) stipulates to both their addiction and impairment when asking to voluntarily enter the VRP.  One must do so to be eligible for the VRP.  Its the worst thing to do.
Every VRP “letter of concern” includes the personal data information sheet and medical authorization releases. Do not sign any of these documents if you wish to retain your medical, nursing for other professional  license.  Do not go to the requested assessment as one is not legally required. If you are reading this blog or column, you should call me immediately.
If you are reading this blog after being charged with a DUI and compelled to go to a COAD (Council on Addictive Diseases) assessment, hire competent counsel to handle your licensing issue along with the DUI. This is because typically the mandatory ARD DUI COAD assessors are the local PHMP referred VRP assessors. Once that assessor learns that DUI ARD applicant sitting in front of them is also a professional licensee – especially nurses and doctors – the assessment turns into a VRP assessment that I advise my clients to avoid.  Being prepared for this assessment, similar to be prepared for the Mental and Physical Evaluations (see my other blogs int he archives), is just as important.
The only way I can fight against the unfair tactics of the VRP is by representing as many professionals as I can.  These are trained but incompetent unlicensed case workers implements are highly structured regulatory process.  They have no authority to deviate from any condition of the program.
The PHMP, PMP, VRP, PNAP case workers deal with these issues every day and have honed their trapping skills over the years.  I read the same case workers names on every VRP and PHMP “letters of concern”.  This is the first time you have read this letter.  You need experienced counsel who has honed his skills to battle these experienced case workers.  Call me.

Pennsylvania’s Medical Marijuanna Law and the Medical Licensee

Medical marijuana is close to reality in Pennsylvania. However, a reality check is necessary at this time. Do not be mistaken and think that as a licensed professional you are not subject to losing your job or license if you test positive for legalized THC in your blood while on the job.

This blog will discuss various provisions of Pennsylvania’s new medical marijuana law and it’s enforcement on Pennsylvania licensed professionals. This blog will not discuss violations of the Medical Marijuana Act by licensed practitioners and patients.

Pennsylvania’s MEDICAL MARIJUANA ACT is found at 2015 Bill Text PA S.B. 3, 2015 Bill Text PA S.B. 3.  The main provision of the Act as it pertains to use of marijuana by a licensee is § 510, (4).  The clause states that:   “A PATIENT MAY BE PROHIBITED BY AN EMPLOYER FROM PERFORMING ANY DUTY WHICH COULD RESULT IN A PUBLIC HEALTH OR SAFETY RISK WHILE UNDER THE INFLUENCE OF MEDICAL MARIJUANA. THE PROHIBITION SHALL NOT BE DEEMED AN ADVERSE EMPLOYMENT DECISION EVEN IF THE PROHIBITION RESULTS IN FINANCIAL HARM FOR THE PATIENT.

This provision does not have THC blood level nano gram cut off for the amount of medical marijuana in patient/professional’s blood.  The language “Under the Influence” is repeatedly used.  Every drug/alcohol expert (not PHMP assessor) knows that a “Under the Influence” blood level is different for every person. This means any active medical marijuana patient/user who is a professional licensee is still subject licensing board prosecution and employment related disciplinary action for allegedly practicing “Under the Influence” of THC in violation of their licensing regulatory statute, regardless of what this provision provides.

Experts of what THC levels constitute “Under the Influence” mean will now abound.  Employment based random drug tests based upon appearances of “Under the Influence” will become rampant.  Each such positive drug test, with drug expert conclusions on what is “Under the Influence of THC” will become a reportable action to the professional board, which can still take action against the licensee.  This is especially true for the licensee who does not possess a medical marijuana patient card and tests positive for THC.  This conduct will still result in Board prosecution because marijuana use without a registration card is still illegal regardless of whether criminally charged or when THC is removed from Pennsylvania’s controlled substance schedules.

There are two provisions of the Act that support this interpretation. The first is § 1101.  This section states GRAPP governs enforcement of the Act. Grapp is Pennsylvania’s General Rules for Administrative Practice and Procedure. These  are the same procedural and substantive rules that apply to professional license prosecutions. As such, the same hearing officers that are familiar with how to and which disciplinary provisions apply to the licensed professional accused of violating their licensing regulations will review allegations of Medical Marijuana Act violations for either THC issues or violative conduct under the Act as a health care provider.

The next section is § 2103.  This provision deals with protections to licensees who are otherwise medical marijuana card carriers. However, the protections set forth herein only apply to proper use and application of the medical marijuana card.  Licensees accused of sharing their medical marijuana to a non-medical marijuana patient, or who engage in other criminal violations (DUI or a Drug Act violation) are still subject to disciplinary action under their own licensing regulations.

As well, subsection § 2103(B)(2) still allows for employment related disciplinary action for those professional’s medical marijuana use that places the public in harm’s way. If you are reading this blog, you are my typical medical professional client. You cannot got to work “Under the Influence” of THC even if it is a prescribed medication.  Even though working with THC in your blood is allowed and can not form the “sole” basis for disciplinary action, working in a negligent or reckless manner due to being “Under the influence” automatically puts patients at risk.  This conduct will become the basis for employment and licensing action. How and why such becomes known to supervisors is anyone’s guess.

The provision addressing this reality is § 1309.  Section 1309 does not prevent imposition any civil or criminal penalty for undertaking a task “Under the Influence” of medical marijuana when doing so would constitute negligence, professional malpractice or professional misconduct.  Further, if you are not a registered medical marijuana patient, § 2101, making primacy the Medical Marijuana Act over the Drug Act, does not protect you, the illegal possessor or distributor (sharing) of marijuana.

Finally, it cannot be overstated the potential affect on a professional’s license the suggestion of a medical disability warranting medical marijuana use.  Being a properly registered medical marijuana patient legally allows one to consume medical marijuana.  However, requesting your medical professional to verify under the Act’s procedures that you so suffer from a medical condition that medical marijuana is the primary medication may trigger Petitions for Mental and Physical Evaluation by your licensing board.

This would occur when a failed employment related drug test or occurrence is reported to the Board.  The obvious and typical “Under the Influence” allegations would be made.  While no specific direct disciplinary action could be the first salvo in a disciplinary prosecution, allegations of medical infirmity that creates a professional impairment will be lodged.  The Mental and Physical Evaluation that will follow will necessarily require production of all medical records, even those that form the basis for the medical marijuana card.  This raises the specter of a PHMP required monitoring program for which marijuana use is strictly prohibited.  Please read my other blogs on the PHMP and the 3-5 religious based abstinence program.

In sum medical marijuana is more of an indirectly but just as serious threat to many licensees who could become trapped in the maze of license prosecutions once blood tests are drawn and “Under the Influence” allegations are made.  Call me to discuss.

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