Immediate Temporary Medical License Suspensions — Do Not Sign Any Agreements Without Counsel

Doctors beware. Government prosecutors are fighting the opiate epidemic on many fronts.  Now more than ever local police in coordination with DEA and  Commonwealth Attorney General drug enforcement investigators are investigating doctors for simply writing unreasonable amounts of scheduled narcotic prescriptions.
DEA Schedule II data base prescription writing reports spawn both federal and state investigations.  Local and federal investigators receive complaints from family members of addicts, alive or dead.  Drug purchasers or drug dealers — “flipped” or “turned” that are now confidential sources seeking to avoid jail — will happily turn on their doctor.
Once a doctor is targeted for pill mill conduct, federal, state, and local police send confidential informants — fake or real patients — to that doctor. Wired fake patients happily record doctor’s physical evaluations, confidential patient conversations, and prescription discussions.
Doctors that breach pain management best practice protocols, for either real or fake patients, are prosecuted.  Red flags include not requiring pre-prescribing drug tests, objective MRI or x-rays if warranted, or  conducting basic physical evaluations.
Treating physicians must check the prescription drug monitoring data base. Pennsylvania’s New Prescription Drug Monitoring Program  Investigators are statutorily authorized to access the PDMP data base to investigate law compliance.   Every prescriber must confirm the patient has neither sought or nor received a similar medication from any other provider.
Failure to check the PDMP database is a red flag.  It is very easy to confirm doctors database access to review patient prescription history.  While the doctor may not ascertain a fake patient from a real one, data base checking give investigators a baseline determination that a targeted doctor is or is not compliant with the law.
Physician evaluation appointments must correspond to an appropriate amount of time spent with each patient.  Physical examinations, chart documentation, and PDMP checks require time.  Charting must document a diagnosed medical condition which warrants a prescription for a therapeutic medical purpose. Multiple prescriptions for multiple, contra-indicated schedule controlled substances are an easy tip off to police investigators of excessive and inappropriate prescription writing. This is part of the criminal prosecution foundation.
Established physician practice red flags are utilized in Medical or Osteopathic Board Immediate Temporary Suspension (ITS) petitions.  These petitions emergently,  immediately, but temporarily suspend a license pending either the criminal prosecution or investigation.  Call me when you get these petitions.  Do not solely rely on criminal legal counsel on how to address these petitions.
My criminal practice experience together with my licensing experience allows me to better represent the physician at this juncture.  Too many physicians get the wrong legal advice on how to deal with these matters with a pending criminal case.  On too many occasions either these probable cause suspension hearings are continued or exchanged for a consent agreement for an immediate indefinite license suspension.  This is wrong.
Do not enter into any consent agreement pending a criminal investigation. The language of some consent agreements require the doctor to make admissions that will have legal consequences in the criminal matter. Further, agreements for an indefinite suspension and automatic probation upon reinstatement ignore much many parts of the criminal matter that may not actually come to fruition. Do not rely on the representations of criminal counsel that does not know how and why the medical board prosecutions proceed the way they do.  Call me to discuss your case.

The PHMP, Kevin Knipe, Pharmacy Board, and an Abuse of Discretion

The PHMP, it’s caseworkers and director Kevin Knipe’s treatment of licensees is a major topic of my blogs and website. I routinely field inquiries regarding false positive drug tests, chain of custody issues, and other PHMP claimed violations. How do I get out of the PHMP is the most consistent PHMP question. Getting out of the PHMP
Kevin Knipe rules his PHMP fiefdom and its workers.  He gives them a script to follow, instructs no compassion is allowed, and they do not possess authority to vary from his rule of law.  In this era of medical marijuana and opiate addiction Pennsylvania’s health care licensing boards adopted his tough stance to licensees in the PHMP.  The Boards deferred much, if not all, of their discretion to his authority.  That is wrong.  The Commonwealth Court decision in my case, Kenney v. BPOA – Pharmacy Board, tells the Boards to take back their authority!
I am fortunate to represent Mr. Kenney, a pharmacist who is 100% compliant with all PHMP terms and conditions.  He timely sought proper termination of his PHMP probation and end Knipe’s and Kathy Simpson’s incessant limitations on his license. PHMP case worker Simpson agreed initially to let him out of the program.  Kevin Knipe got wind of this position the day before a hearing and overruled her. The Pharmacy Board acquiesced to Knipe’s dictates and denied Kenney’s petition.
I was hired to seek reconsideration of this denial before the Pharmacy Board and then appeal to Commonwealth Court if reconsideration was rejected.  It was.  On appeal my strategy was to argue the Pharmacy Board ignored the factual record, thereby abusing its discretion. My blogs talk about this issue.
Kenney is at least six years sober and compliant with every PHMP condition. On appeal, the Board and Knipe maintained Kenney did not use the proper form seeking early termination.  Knipe testified before the Pharmacy Board that he was worried about other petitions to terminate that would be filed if the Pharmacy Board approved Kenney’s Petition.  The Pharmacy Board agreed!
The Commonwealth court found this position outrageous.  It took Knipe, the PHMP, and the Pharmacy Board out to the “legal” woodshed and gave them a whipping. The Court quotes Knipe’s concern that early termination of PHMP monitoring will not be well received in the court of public opinion and could expose the PHMP to liability. The court rejected this reasoning, summarily stating, “The Board erred in relying on Knipe’s testimony because it was a based upon the PHMP’s inflexible policy, not the licensee’s record, and a mischaracterization of testimony.”  PHMP’s inflexible policy not based upon the licensee’s record.!!!
The court turned its ire to the Pharmacy Board’s acceptance of Knipe’s claims that PHMP consent agreements barred licensees from petitioning for early termination. The Court ruled the PHMP Consent Agreement/Orders are contracts; that Knipe and PHMP’s interpretation that they controlled termination approval rendered the contract illusory (illegal).
In evaluating the contract, the court rules as a matter of law that the period of probation may be extended or modified – – reduced – – and that the Pharmacy Board, not Knipe or the PHMP, controls modification. The rules as a matter of law the PHMP does not control the decision on early termination of probation petitions. “It is inappropriate for the Pharmacy  and all other Board which utilize the same consent agreements, to delegate its final decision making responsibilities to the PHMP.”
This is the decision’s important holding. The licensing board, not the PHMP, interprets the consent agreements into which it enters. The PHMP may manage the probationers.  It does not have a statutory authority to run rough shot over these licensees.
The Court rejects PHMP’s claim of God, sobriety, and public and patient safety override licensee’s constitutional and statutory property rights.  The Court tells licensing boards to take back their statutory authority; to allow its prosecutors, not the PHMP or Knipe, to modify consent agreement terms. PHMP’s one size fits all uniform enforcement practice against every PHMP monitored licensee is wrong.
Whether a nurse, physician, pharmacist, respiratory therapist, physician assistant, the PHMP, SARPH, PNAP, PHP has ruled professionals’ lives with an iron fist.  PHMP claimed it had the legal authority based upon the consent agreement. This decision says that the licensing boards have improperly abrogated their authority to the PHMP.
Let me help you file your petition to terminate the PHMP program and tell your licensing board that Kevin Knipe and his minions no longer control your life.
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