Pennsylvania’s Professional License Disciplinary Environment

The Professional Compliance Office within BPOA’s Legal Office, receives an average of 16,000 complaints per year. The office reviews these complaints to establish whether the complaint alleges conduct which is a violation of a practice act, whether a Board has jurisdiction, and whether there is sufficient evidence to merit further investigation. Complaints can be initiated by consumers, licensees, board or commission members, board or commission staff, competitor complaints, other state licensing boards, media information, and law enforcement.

When a complaint requires investigation, the Department’s Bureau of Enforcement and Investigation (BEI) interviews witnesses and obtains documents and collects evidence related to the allegation made in the complaint. Subsequently, a prosecuting attorney determines whether to close the complaint or to initiate a disciplinary action before the administrative licensing board.

Prosecution for violations of standards of practice are initiated through the filing of an Order to Show Cause.  The prosecutor who proceeds with the disciplinary action then bears the burden of proving misconduct before the board. Licensees are provided due process and the board adjudicates the case to either dismiss or sanction. Depending on the severity of the conduct proven, sanctions can range from probation and discretionary suspension, to revocation or automatic suspension as required by statute. Licensees have the right to appeal any sanctions to the Commonwealth Court for review.

Sanctions include: revocations, suspensions, stayed suspensions, voluntary surrenders, probations, reprimands, civil penalties. As of May 16, 2018, there had been 2,494 sanctions issued in fiscal year 2017-2018. This is the highest on record.  Nursing Board sanctions doubled between 2012 and 2018, from 436 to 840. Nursing Board actions account for 31% of all disciplinary cases.   Medical and Osteopathic Board sanctions remained the same at 190 and doubled from 27 to 46, respectively.  Pharmacy and Social Workers Board actions have both dropped by 50%.

Each board and commission is authorized to take disciplinary action based on the commission of a crime. Among these disciplinary actions taken:

• 29 % resulted in suspension;

• 17% resulted in stayed suspension (usually with probationary terms);

 

• 13.5% resulted in automatic suspension due to the Drug Act;

• 12.6% resulted in voluntary surrender of license;

• 12% resulted in revocation;

• 6.5% resulted in reprimands;

• 4.7% resulted in immediate temporary suspensions based on danger to health/safety of public;

• The remaining roughly 5% resulted in probation, a civil penalty (regular or Act 48), a stayed revocation, or other sanction such as remedial education, etc.

Call me to discuss your case.

Fraud, Felony Conviction, and License Revocation

Artifice and fraud schemes are rampant in healthcare and insurance. Typical insurance fraud criminal charges will result in licensee disciplinary action. By typical I mean submitting claims for unemployment benefits while working another job or failing to report accurately income amounts to qualify for child and other state Medicare/ Medicaid benefits.

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Healthcare professionals also engage in insurance billings fraud schemes. Submitting health insurance claims for medical services not therapeutically necessary is fraud. This is typical a conspiracy. It is perpetuated knowingly by the physician but unknowingly by an entire medical office or hospital medical practice. Another scheme is a billing for every individual procedure code associated with a patient’s surgical procedure, whether the patient received the service or product. This fraud is very hard to find without computers.

In September 2018 the Social Workers and Professional Counselors Board issued a disciplinary decision against a sole practitioner who billed an insurance company for her services. This case sheds light on a new scheme involving an old type of fraud. The professional counselor would see a patient four or five times. Thereafter, her husband, who was running the office, billed the patient’s insurance company for 400 or 500 visits. The scheme stretched between 2011-2015. The licensee allowed her husband to engage in this $600,000 billing fraud with her license.

After several years the insurance company’s fraud detection service was alerted. Fraud detection techniques include computer algorithms searching for outlier billing codes, procedures, excessive procedures, highest payee, or excessive patient visits. The insurance company referred the case to the Attorney General’s Insurance Fraud Division. After a simple and brief investigation, the licensee was charged with felony insurance fraud, felony theft, felony unlawful use of a computer, and felony receiving stolen property.

The professional was convicted and sentenced 6 to 23 months in jail, 5 years probation, and $600,000 of restitution.  She was immediately stripped of her ability to participate in the private health insurance program. After her conviction, discipline was commenced. A 5 count disciplinary action that is based upon the felony conviction engaged in the course utilizing the license.  A fraud conviction is a moral turpitude violation.

A fraud perpetrated utilizing a professional license typically results in probation or a brief license suspension. This licensee engaged in fraudulent billing of fabricated office visits of this manner for 22 different patients. This rampant fraud, the Board determined, required license revocation. One patient’s insurance company was billed for 906 office visits where only 56 visits were real. Another patient was charged 806 office visits but only was seen 55 times. One patient visited the office only twice, but was billed for 585 office visits.

This Board emphasizes insurance fraud related to the professional practice is an aggravating factor in disciplinary cases. The Board exclaims the four years of excessive fraud began immediately upon opening her private practice. The Board is disgusted with the licensee’s deceptive statements to her patients who questioned explanation of benefit forms.

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Respondent’s mitigation did not move the Board to reduce the license revocation exposure. She claimed spousal abuse, her husband made her do it, their family debts were excessive. The licensee’s husband’s spousal infidelity, and her attempts to stop His fraud were similarly disregarded. Computers are the investigators now. Abnormal billing, patient billing complaints, and engaging in other outlier type behavior is easier to detect. Call me to discuss any criminal investigation or disciplinary action.

New Jersey’s Proposed Medical Marijuana Act Amendments

Pennsylvania’s Medical Marijuana Act details in excruciating detail the prescribing limits placed on physicians (the only allowed prescribers). New Jersey’s MMA differs from Pennsylvania at the outset by not limiting prescribers to physicians.  Any medical professional with DEA prescribing authority may dispense Medical Marijuana.
This blog discusses NJ’s proscriptions against all NJ health care professionals who chose to dispense marijuana and patient card holders.  Importantly, the first significant rule is that the list of list of the persons to whom it has issued registry identification cards and their information contained in any application form, or accompanying or supporting document shall be confidential, and shall not be considered a public record and shall not be disclosed except to confirm the legality of their pot possession. Applying for a registration card does not waive physician-patient confidentiality.
As for dispensing health care professionals, a health care practitioner shall not be required to be listed publicly in any medical cannabis practitioner registry as a condition of authorizing patients for the medical use of cannabis.
When authorizing a qualifying minor patient who is a minor for the medical use of cannabis, if the treating health care practitioner is not a pediatric specialist, the treating health care practitioner shall, prior to authorizing the patient for the medical use of cannabis, obtain written confirmation from a health care practitioner who is a pediatric specialist establishing, in that health care practitioner’s professional opinion, and following an examination of the minor patient or review of the minor patient’s medical record, that the minor patient is likely to receive therapeutic or palliative benefits from the medical use of cannabis to treat or alleviate symptoms associated with the patient’s qualifying medical condition. If the treating health care practitioner is a pediatric specialist, no additional written confirmation from any other health care practitioner shall be required as a condition of authorizing the patient for the medical use of cannabis.
No authorization for the medical use of cannabis may be issued by a health care practitioner to the practitioner’s own self or to a member of the practitioner’s immediate family.
These are important but very liberal provisions.  Any health care professional may write a prescription for medical marijuana.  Confirmation of a medical condition that is LIKELY to receive therapeutic or palliative benefits for marijuana is the medical burden.  Pennsylvania comparative provision is significantly more stringent.  Similar to Pennsylvania, health care professional can not prescribe pot to themselves or their family.
Ownership of a Medical Marijuana dispensary is a significant legal issue. In Pennsylvania, physicians can not have any owership interest in any verticle aspect of the marijuana manufacturing, production, or supply chain. In NJ, this is extremely different.
Except as provided in subsection b. of this section, no health care practitioner who has authorized a patient for the medical use of cannabis pursuant to within the past 90 days, and no member of such health care practitioner’s immediate family, shall be an interest holder in, or receive any form of direct or indirect compensation from, any medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant.
If the health care professional does not prescribe marijuana, they CAN have an ownership interest.
Nothing in subsection a. of this section shall be construed to prevent a health care practitioner from serving on the governing board of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, or on the medical advisory board of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant established pursuant to section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill), or from receiving a reasonable stipend for such service, provided that:
(1) the stipend does not exceed the stipend paid to any other member of the governing board or medical advisory board for serving on the board; and
(2) the amount of the stipend is not based on patient volumes at any medical cannabis dispensary or clinical registrant or on the number of authorizations for the medical use of cannabis issued by the health care practitioner pursuant to P.L.2009, c.307 (C.24:6I-1 et al.).
c. A health care practitioner, or an immediate family member of a health care practitioner, who applies to be an owner, director, officer, or employee of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, or who otherwise seeks to be an interest holder in, or receive any form of direct or indirect compensation from, a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, shall certify that the health care practitioner has not authorized a patient for the medical use of cannabis pursuant to P.L.2009, c.307 (C.24:6I-1 et al.) within the 90 days immediately preceding the date of the application.
In almost every jurisdiction, use and possession of medical marijuana can and is a basis from professional disciplinary action.  Showing up high to work, for any reason, or being charged with driving under the influence of pot triggers professional license disciplinary actions.  Under the proposed legislation, the new law try to change this!
b. A qualifying patient, designated caregiver, institutional caregiver, health care facility, medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, health care practitioner, academic medical center, clinical registrant, testing laboratory, or any other person acting in accordance with the provisions of the new law shall not be subject to any civil or administrative penalty, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, related to the medical use of  cannabis as authorized under the bills (pending before the Legislature as this bill).
c. Possession of, or application for, a registry identification card shall not alone constitute probable cause to search the person or the property of the person possessing or applying for the registry identification card, or otherwise subject the person or the person’s property to inspection by any governmental agency.
d. The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of  cannabis determined to exist by the commission, shall not apply if a qualifying patient, designated caregiver, or institutional caregiver has in his possession a registry identification card and no more than the maximum amount of usable  cannabis that may be obtained in accordance with section 10 of P.L.2009, c.307 (C.24:6I- 10).
e. No person shall be subject to arrest or prosecution for constructive possession, conspiracy, or any other offense for simply being in the presence or vicinity of the medical use of cannabis as authorized under the bills pending before the Legislature as this bill.
Shall not alone constitute probable cause. These are the operative words. Simply using medical marijuana for a proper therapeutic or palliative need will not trigger a disciplinary investigation. Showing up at work smelling of pot and attempting to perform as a medical professional will cause problems. Work place reports, medical mistakes, criminal charges of driving while high (in any jurisdiction) are additional facts New Jersey’s licensing board will and can consider. They can not ignore “additional facts”. That is why the statute says “shall not alone constitute probable cause.”

Physician Employment Contracts and Licensee Disciplinary Actions

I spend a majority of my time helping medical professionals secure and keep their professional license. Recently, a physician contacted me to discuss his group practice employment contract and his hospitalist job. Reviewing his employment contract enlightened me on numerous ways a single licensing issue can impact medical professionals’ employment and future employability.

Standard medical group and hospital employment contracts include the following terms to which physicians shall comply:
1.1. At all times engage in the practice of medicine, specializing in ******, and diligently perform all of the normal and customary functions of a physician with such specialty, and ensure that the services of others over whom he has responsibility are at all times at a level of competence that, at a minimum, is recognized as acceptable in the community served by the Department (the “Community”) and at a standard that is acceptable under the applicable Governing Policies and in the Hospital Contract), all applicable legal and accreditation statues, regulations, standards, and requirements, and other recognized professional standards in the Community.

This paragraph is a catch all scope and competence to practice requirement. It is based upon the local practices in the region, not necessarily the training and experience learned in medical school. Competence is also based upon group community peers and their biases and long held beliefs.

1.2. Perform such other and additional duties and functions for and on behalf of Corporation reasonably relating to the planning, management and operation of Corporation’s activities, as shall be assigned to him from time to time by Corporation; 1.3. Perform any and all duties required of, or assigned to, Physician under the Hospital Contract; 1.4. Comply with all policies, standards and procedures of Corporation which Corporation may, from time to time, reasonably promulgate and, as required in its’ discretion, amend;

1.5. Render all services with competence, efficiency and fidelity, and comply with the ethical precepts of his profession at all times.

These clauses focus on how hard can the group or hospital make the physician work, to the groups’ partner’s satisfaction. “Any and all” duties or “all” policies allows the group or medical corporation to impose their will and practices on the physician. Conformity and compliance are the norm. To wear the White Coat getting along to go and get along is the norm. Weekends, holidays, and midnight shifts are necessary and the norm.

1.6. Without limiting the foregoing:

1.6.1. Continuously be duly qualified to perform the radiology services required of him under this Agreement and the Hospital Contract;

1.6.2. Continuously maintain his license, and be in good standing, to practice medicine in the Commonwealth of Pennsylvania;

1.6.3. Continuously possess a valid narcotics license, as issued by the Drug Enforcement Administration (“Narcotics License”);

1.6.4. Continuously maintain his board eligibility in radiology and, within two years, achieve and maintain board certification by successfully completing and passing the Certifying Examination from the American Board of ________ (“Board Certification”);

1.6.5. At all times comply with the policies, rules and regulations of any and all governmental authorities relating to the licensure and regulation of physicians and _________;

1.6.7. Continuously maintain full privileges at the Hospital, and continually maintain membership on the Active Medical Staff (the “Medical Staff”) of the Hospital in the Department;

1.6.8. Abide by and be subject to the bylaws, rules, regulations, policies and procedures of the Hospital, the Medical Staff, and the Department (the “Governing Policies”);

These clauses speak for themselves. A single criminal or disciplinary investigation creates a domino affect. Prescription Drug Monitoring Program (“PDMP”) violations and/or fraud diversion investigations trigger qualification challenges under each provision. A criminal investigation (not conviction) could affect medical staff privilege issues and/or constitute a violation of the employer’s separate Bylaws and governing policies. DEA issues affect prescription writing capabilities. A criminal conviction (as compared to an investigation) will ripple through and trigger these provisions.

Call me before participating in any criminal investigation of your medical practice or individual license. The physician employee must provide annual or semi-annual truthful information regarding any licensing or other criminal involvements whether it involves a license or not. For example: a DUI charge or spouse abuse/domestic assault charge. Be very careful what you say to whom about what investigation. I have represented numerous physicians in non-work related criminal investigations that did not result in criminal charges only because of my involvement early in the process. Sometimes, here, the truth and just talking to “take care of things” is not the correct process!  You always have something to hide!  Do not talk to anyone without consulting me.

In drug use impairment investigations, proceeding carefully and with counsel is even more important. Referrals to Pennsylvania or New Jersey’s Physician’s Assistance Program (“PAP”) is a gray area. It is not an investigation and it is not a criminal conviction. Call me. The VRP-PAP Referral Letter  A PAP referral is not from Pennsylvania’s Medical Board. A PAP referral is confidential and is not communicated to the Medical Board. Do not disclose any PAP communications with your medical group practice administrator! Professional License Issues

What should a physician do if he/she receives a confidential voluntary recovery program referral. Read many of my other webpages and Blogs on what is the VRP. The Disciplinary Process Referral A VRP referral is much different than a confidential petition filed compelling an evaluation. Voluntary enrollment in the monitoring program will automatically restrict a physician’s ability to write prescriptions, hold a DEA license and participation in many insurance contracts, Boards, and federal insurance programs. DO NOT listen to the lies of the PAP case worker or manager who says you may be able to continue working.  Seriously consider the ramifications of a PAP, VRP enrollment. The Medical License Issue
If the Board files a Petition Compelling a Mental and Physical Evaluation, there still is no disciplinary action. Do not tell your work! If the Board expert concludes no impairment, or the prosecution does not file a petition after a referral, then the case is over. Telling your employer too early in the investigation will trigger consequences that are unnecessary.

If the Board’s PHMP approved expert concludes you are unable to safely practice medicine due to a drug or alcohol addiction, which continues, and impairs your ability to practice, this still is not a disciplinary action . The Board prosecutor must file the petition, there must still be a hearing, and that expert must come to court and testify.

If there is a final Medical Board order compelling enrollment in a drug monitoring program, what does this mean. Only after a full hearing and the medical board issuing a Final Adjudication and Order is there a formal disciplinary order. The same process must be complied with for any other basis before a final board order triggers each of the above sections of the contract. Then enrollment is necessary to comply with this contract.
1.6.9. Continuously be empanelled to be paid for services by, and remain in good standing with, Medicare, Medicaid, the health maintenance organization maintained by Blue Cross/Blue Shield of Northeastern Pennsylvania, and any other payors identified by Corporation and/or the Hospital, or as otherwise required by Corporation and the Hospital contract or agreement.

1.6.10. Sign participation agreements with, and provide true and accurate information for his credentials as required for participation in the, Medicare and Medicaid programs and any other insurance programs required by Corporation and Hospital, and agree to be reimbursed in connection with such programs in accordance with the Hospital Contract;

1.6.11. Serve on such medical and administrative committees of the Hospital to which Physician is reasonably assigned, and perform such additional administrative duties as are required by Corporation and the Hospital;

1.6.12. Assist in developing and conducting medical education programs in radiology as reasonably required by the Hospital, and participate as needed in existing educational programs of the Hospital, as required by Corporation and the Hospital;
A physician under any restricted license will not be invited to participate in any of the above committees, boards, or programs. These provisions allow employment termination/contract termination for just about any conduct or activity that results in even a minor blemish on the group or hospital contract.
Call me to discuss your case!!

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