VRP – Letter of Concern – What It Really Means

Licensees call me asking what is the VRP “Letter of Concern.”  “Do I have to do all these things the packet asks me to do?”  Do I have to answer these quesstions. This blog is a refresher of two prior blogs I wrote: VRP Letter of Concern and What is VRP Cooperation.  Let’s go through the first four items the Letter of Concern packet asks of each licensee.

1) Contact Livengrin (or your local) drug and alcohol treatment center for an assessment.

2) Complete the Participation Cooperation Form and Personal Data Sheet;

3) Sign releases;

4) If you successfully complete the VRP evaluation and you do not meet the criteria for a mental and physical valuation, the VRP will close its file but will still notify the Department of State legal divisions of the findings.

1) The PNAP VRP Assessment Process
The assessment is a basic DSM-V, alcohol or drug abuse, questionnaire.  Assessors almost always find criminal interaction (DUI, drug possession, or theft) or work place impact (getting fired) as a basis for a drug abuse diagnosis warranting monitoring.  Workplace positive drug tests for a non-prescription controlled substance also guarantees a drug abuse diagnosis.   VRP “voluntary” participants do not know this.  You think you could get cleared……NOPE.

Once a licensee contacts the PNAP – specified drug and alcohol treatment provider, to be compliant, the expectation is to disclose current and historical drug and alcohol (D/A) use.  Drug rehab assessors (not medical trained professionals) require VRP “voluntary” participants to release their medical records for review.  The assessors use the records in their PNAP “report” to identify whether the licensee is truthful during an assessment.   Now PNAP has your medical and prescription drug use history.

Some assessors may look past minor recreational use of marijuana or alcohol.  However, PNAP and PHMP supervisors sometimes intervene and “reorganize” assessor’s non-impaired conclusions.  By “reorganize” I mean PNAP caseworkers will either require the assessor to change their no-monitoring conclusion or require a second PNAP assessment.  This is the problem being voluntarily compliant with VRP assessments.  You can’t trust the person performing the assessment.  You can’t trust the PNAP or PHMP caseworker to not intervene in the assessment.  Do not disclose your medical care or medication history in an environment lacking in trust or transparency.

2) Complete the Participation Cooperation Form and Personal Data Sheet
PNAP treats the Participation Cooperation Form as a voluntary enrollment contract. Right off the bat, PNAP attempts to enforce this contract as if it were the Nursing Board. It is not.  For example, prior to or during the assessment process (waiting for scheduling, attending the assessment, or receipt of the report – which is always delayed due to receipt of medical records), PNAP may instruct VRP participants to not work.  PNAP participation is voluntary and voluntary means compliance.  PNAP initially tests a licensee’s ability to comply by precluding work.  This is not proper.  Only a formal Board order precluding a licensee from practicing their profession impairs a license and their ability to work.  If you need to work, and PNAP will not let you, consider not going into the VRP.
Absent a formal Board Order PNAP and PHNP do not have any authority to compel licensees to comply with the VRP participation requirements.  PHMP sometimes requires VRP enrollees to participate in an aftercare plan based upon the PHMP approved assessment.  Or, only after attendance in the care plan can the licensee return to work.   This is wrong.  Months could go by without working, expenses are rising, and licensees need to work.
The VRP letter of concern states “failure to comply with the terms of the PHMP agreement will result in the initiation of formal disciplinary process against the license to practice.” PNAP and the PHMP cannot compel disciplinary action. PHMP and PNAP threats for failure to honor the terms of the PHMP participation agreement – compelling disciplinary action – absent a formal nursing board agreement is an empty threat.  Only a Pennsylvania licensing board prosecutor can initiate disciplinary action. The PHMP and PNAP case workers cannot and do not initiate legal action.
PHMP and PNAP do not have the authority to initiate disciplinary action.  Only after a Pennsylvania professional licensing board enters a formal board order accepting a consent agreement – which is different from a PHMP agreement– can disciplinary action be initiated for breach of that order.  Licensees are allowed to work this entire time.  There is no Board order or other restriction on a licensee’s license during this time.  This is part of the PNAP trap.
PNAP’s Participation Cooperation Form language is a threat scaring licensees to not change their mind.  Licensees perceive the VRP assessment process will be quick.  PNAP makes sure it is not.  After signing the Participation Form, PNAP stops returning phone calls, answering questions, and SLOWS DOWN the process, causing licensees great frustration. Assessments are cancelled or reschedule for weeks.  Licensees who are fully compliant, attend the assessments, provide medical records are treated improperly.
PNAP caseworkers start the bait and switch lie tactics. PNAP caseworkers claim licensees can’t back out of the agreement, must comply and not work during the delay in report clearance or they’ll be subject to disciplinary process. PNAP case workers claim PHMP must release the licensee back to work.  PHMP caseworkers claim it is the legal department or the report is not done yet, or another drug test is required. This is not correct. Absent a formal Board Order, a VRP voluntary compliance participant who can change their mind. The threat of “legal review and prosecution” is just that;  A threat – not reality.
3) Personal Data Sheet
Many licensees initially participate in the VRP as a result of receiving a Letter of Concern.  The Letter of Concern is triggered by criminal charges – a single offense DUI,  a public drunkenness – or falling asleep in a job after working too many hours.  The personal data sheet seeks very private and confidential information.   Filling out a personal data sheet provides PNAP and the PHMP very extensive, confidential, and private information.   Many licensees candidly and honestly answer the personal data sheet questions.
Some questions, however, should not be answered.   Questions 22, 23, and 24(a)-(g) are of specific concern.  When confronted with substance abuse questions 22–24, many licensees indicate they do not have a drug or alcohol use condition, have never been diagnosed with such, and are taking prescription medication.  For the one/off DUI case, minor personal recreational use of pot or some mild alcohol use, the addiction questions can not be affirmatively answered.
At first blush licensees seeking to be compliant with the VRP process do not answer these questions because they can not admit to an addiction and/or do not suffer from one.  PNAP or PHMP case workers review the data sheet answers and claim the licensee did not provide proper complete information.  The delay process begins.  PNAP does not accept blank or denials to these addiction questions.  PNAP tells licensees that their version of the truth makes them ineligible for the VRP and the matter can be referred to the prosecutor for review.    SCARE SCARE SCARE.
Licensee don’t want to be eligible for this program. Licensees should not lie on this form and admit an addiction to get into the VRP.  Admissions of addiction form the basis for VRP  participation and eventual professional licensing boards’ consent agreement compelling compliance in the program.  Admission of an addiction, impairment, and inability to practice nursing is a necessary finding of any Board Order. It also stops the licensee from working.
Do not admit possessing a medical condition (drug or alcohol addiction) you do not have.  Make the Board prosecutor prove their case….. Do not admit any addiction.  The answers to questions 22 through 24 give the PHMP and the Board prosecutors the foundation for the consent agreement.  Don’t answer these questions if you are not impaired, do not suffer from an addiction, and have not been diagnosed as suffering from an addiction.
4) Personal Date Sheet Questions about Drug, Alcohol, or Mental Health Care
Questions 25-33 of the Personal Date Sheet focus on drug or alcohol treatment or mental health care. This is private, confidential medical care received based a medical condition for which many licensees receive appropriate care.  The VRP, PNAP, and the PHMP will utilize your own health care needs against the licensee as a reason to determine an impairment exists.  This is even though the care is for a diagnosed medical condition, for which licensees receive proper care,  and treat with lawful dispensed prescriptions.  Do not give PNAP any personal information about you, about your medical condition, about the medications you take. They’re only using it against you.
Please call to discuss your case

 

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Criminal Conviction – Professional License Suspensions and Mitigation Evidence

The Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), requires Pennsylvania’s licensing boards consider criminal convictions disclosed on license applications or which take place after licensure as a reason to discipline active licensees. Different licensing boards apply CHIRA’s rules differently.

On February 28, 2018 Commonwealth Court decided Bentley vs. BPOA, — A.3d —- (2018).  This cases expounds on how a licensing board abuses its discretion when it disciplines a licensee for criminal conduct not related to their license. In 2013 and 2014, Cosmetologist Bentley was convicted in two separate cases of possession with intent to deliver a controlled substance, forgery, aggravated assault, escape, and attempting to allude the police. Wow.

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Bentley reported the convictions to her Board, which issued a Rule to Show Cause seeking to discipline her license under CHIRA.  At the hearing, the Cosmetology Board prosecutor only presented the certified criminal conviction. This is the typical prosecutor practice.  No witness testified as to the underlying criminal conduct.

It is important to have competent counsel at this hearing.  Counsel should object to inadmissible portions of the certified conviction documents. Objections to hearsay statements in affidavits of probable cause eliminate statements of people not present at the hearing.  The licensee can not cross-examine that witness.   I always have these documents paired down and limited.  My client/licensee’s explanation of the criminal case is the only version of events. Consistent Nguyen v. BPOA, licensees are allowed to explain their role in any multi-defendant criminal case. They may explain a co-defendant’s greater role than their own.

During her hearing, through counsel, Bentley presented significant and appropriate mitigation evidence. Mitigation evidence included the delay of the prosecution versus the time of the criminal act; new and abundant family support; full and complete responsibility for the criminal act; the unique set of factors leading up to the criminal charges and her association with her then boyfriend and now co-defendant.  Most importantly, she described her rehabilitation while in state prison. This rehabilitation included anger management, employment/cosmetology training, and new religious faith. She presented reasonable and appropriate community reputation evidence. This evidence corroborated her claim of being rehabilitated, remorseful for her actions, and turning over a new leaf.

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The hearing officer suspended Bentley’s license for the balance of her parole (probably not long). The Cosmetology Board, as all boards do, issued a notice of intent to review the hearing officer’s decision.  The Cosmetology Board rejected as modest Bentley’s mitigation evidence. The board suspended Bentley’s cosmetology license for three years based upon the criminal convictions. The Board rejected Bentley’s need for licensure to remain employed, her rehabilitation, and need to support herself.

Bentley appealed to the Commonwealth Court.  She claimed the Board abused its discretion when it rejected her mitigation evidence and suspended her license based solely on the criminal convictions.  Bentley alleged that the Board summarily ignored all of her uncontested mitigation evidence, which was not contradicted by any evidence the Commonwealth introduced in the certified criminal conviction. Bentley argued the suspension was manifestly unreasonable because the convictions bore no relation to the practice of cosmetology. Arguing the Board’s conduct capriciously disregarded her mitigation evidence absent explanation was an abuse of discretion.

On review the Commonwealth court agreed. Commonwealth Court defines capricious disregard as “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinarily intelligence could not possibly have avoided in reaching a result. When strong evidence contradicts contrary evidence, the adjudicator must explain the basis for its determination.” Absent a proper explanation why the adjudicator is rejecting overwhelming critical evidence, the board abuses its discretion.

As with many of my cases the time delay between criminal event, conviction, and disciplinary action may be five or six years. I argue Board delay which allows the licensee to practice of their profession for three or four years renders mute any board allegation that there is an emergent basis for extensive discipline. Suspension or revocation is not warranted if the board took six years to do it.

Also, the Cosmetology Board licensing scheme does not authorize discipline for criminal convictions not related to the profession.   Imposing discipline based upon the convictions was an error of law.  Such also revealed ignorance of Bentley’s mitigation evidence.  The court found Bentley’s mitigation evidence unique and must be considered.
The Commonwealth Court held that the Board’s summary rejection and failure to consider it constitutes a capricious disregard of the evidence. Such is an abuse of discretion for which the Commonwealth Court rejects the board decision and sends the case back to the Cosmetology Board.

This case is an example of licensing boards tightening their belts and implementing a much stiffer enforcement environment. This appellate  decision, and several other recent cases, reveal licensing boards routinely abusing their discretion and ignoring the law that guides their decisions.  Non-law trained licensing board members shoot from the hip regarding the discipline that they want to impose upon their license fees. Many times, there is no legal basis for the discipline.

When licensees take an appeal, they have an appellate, independent, unbiased court review the nature and extent of imposed discipline.  The appellate court rejects this board’s arbitrary and capricious decision. Unfortunately this costs a lot of money. However, in many of my cases I see unfettered discretion punishing hard-working licensees that is far beyond both what is necessary and reasonable and what the licensing statutes allow.
Call me to discuss your case.  A criminal record should not be a bar to getting or keeping a license.
 jerry-arrest-record-seinfeld1
Jerry’s career took off.  So should yours.
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