PNAP — A New Scare Tactic

A new client recently contacted me regarding a puzzling PHMP/VRP letter he received. After a first offense DUI, the VRP contacted him and scared him to attend an initial evaluation.  The Initial Evaluation    As I have said many times, the PHMP’s “Letter of Concern” is a lie. The PHMP is not concerned. The Letter of Concern.

 

After attending the evaluation, the PHMP caseworker began aggressively pushing this nurse about what to do next. It should have been nothing. It was not.

The VRP sent a second letter offering more care and treatment because “the drug and alcohol evaluator was unable to rule out that you suffer from a drug or alcohol addiction or impairment…” This means the evaluator did not diagnose my client as suffering from any condition that impairs his ability to practice his profession safely. The PHMP/VRP file should be closed after this opinion was rendered. This is a false diagnosis.  “Unable to rule out” is no formal diagnisis of a condition that renders the nurse unsafe. PNAP Scare Tactics

 

It is a new tactic in the PHMP/VRP trap process. The letter identifies three options:, 1) go to an extended inpatient evaluation, 2) go to a second evaluation after 90 continuous days of outpatient treatment, or 3) reject both and PNAP will close the file and prosecution review will commence.  This is PHMP/PNAP/VRP engaging in expert shopping.

As with the first evaluation, the VRP interested professional must pay for the all treatment and associated evaluations. This is PNAP pushing licensees into evaluations once, twice, or as many times as they need to get an opinion PNAP will accept. This is demoralizing to you the professional who is freaking out.  This is a con by the PHMP/PNAP caseworker.  Do not fall for this trick.

The letter proceeds to state: “In order to undergo the extended outpatient evaluation, please comply with the attached document summarizing the terms and conditions of the extended evaluation. If you successfully complete the extended evaluation thereby allowing us to document that you do not suffer from a substance use disorder, your VRP file will be closed and we will notify the Department of State’s Legal Division that we have determined you do not meet criteria for a substance use disorder. ”

It is not the licensee’s burden to prove they do not suffer from a disorder. It is the Board’s burden to prove the licensee does suffer from a condition that renders them unable to practice. The case law rejects this PHMP legal position.

The letter continues, laying out the various terms and conditions a nurse/medical professional licensee would have to comply while going through this process:

To pursue a residential evaluation, please contact one of the following facilities to make arrangements to be admitted within three weeks of the date of this letter: (1) Marworth 800-442- 7722, (2) Caron Treatment Center 800-854-6023, or (3) The Farley Center 800-582-6066. If the results of the intensive evaluation determine you do not suffer from a substance use disorder, your VRP file will be closed and we will report the findings to the Legal Division. Should the intensive evaluation establish that you meet criteria for a substance use disorder, you will be offered VRP enrollment.

These are three captive PHMP evaluator/treatment facilities.  There is no way either of these locations will not find an impairment.  They want your money, your insurance coverage, PHMP’s continued case referrals.

Call me if you get this letter.

A Constitutional Right to Work

On October 4, 2018 Commonwealth Court issued a significant decision in King v. BPOA discussing the Criminal History Record Information Act (“CHRIA”).This statute gives licensing boards a discretionary authority to discipline, suspend, revoke, grant, or deny licensure based upon a criminal conviction related to the practice of a license. CHRIA’s general purpose, however, is to control the collection, maintenance, dissemination or receive a criminal history record information.

Recently,licensing boards use CHRIA to discipline licensees for criminal conduct NOT related to the practice of license. King reiterates CHRIA does not provide standards for Boards to exercise their discretion. Boards must look at their specific and more relevant enabling statutes, the specific board licensing laws. CHRIA does not authorize discipline for a criminal convictions not related to the practice of the profession.

This is why in CHRIA disciplinary cases, those solely based upon a criminal conviction, licensee’s mitigation and rehabilitation evidence is critical. In 1998 King was convicted of indecent assault. He was sentenced to 5-10 years in jail, 10 years probation and supervision under Megan’s law. After parole and King satisfied all terms of his sentence, did not violate probation or parole, properly secured his barber license, and practiced his profession in an unblemished manner. He properly notified the Board of his conviction.

The Barber Board, after a hearing, revoked King’s license based upon the misdemeanor conviction and probationary sentences. King appealed. Commonwealth Court ruled the Barber Board abuses its discretion in revoking the license based upon CHRIA. As the licensee did not violate the Barber licensing statute, there was no other basis to discipline him.

This case is significant because Commonwealth Court relies upon Article 1, Section 1 of Pennsylvania’s Constitution. This Article guarantees Pennsylvania residents the right to engage in any of the occupations of life. By referencing a state constitutional guarantee the court effectively holds this rights outweighs CHRIA’s general purpose, non-mandatory discretionary license disciplinary.

King emphasizes Boards’ general statements of public safety concerns of a future occurrence is not proper evidence upon which it may base a discretionary disciplinary action. The Board abuses its description when it revokes licensure based on supposition that the licensee could potentially be an instructor for female students under the age of 18 or have contact with minor clients. Such speculative reasoning is flawed.

King rejects Board member perceptions that criminal convictions scar licensees’ character forever, with no possibility of rehabilitation. King instructs licensing Board to consider and properly allow for rehabilitation. King follows a line of 2018 Commonwealth Court cases instructing Pennsylvania licensing Boards that CHRIA is a not a proper basis to suspend or revoke a constitutionally secured property right. https://www.phila-criminal-lawyer.com/blog/2018/05/another-appeals-court-reverses-a-pennsylvania-licensing-board-disciplinary-decision.shtml

Fully employment and hard work is the rule. This is in contrast to many recent cases of which I have written. Commonwealth court is telling the boards as a matter of policy, “let these people work”. Rehabilitation is part and parcel with employment, which is part and parcel with members being productive people in society.

Call me to discuss your case.

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