The PHMP – VRP, for SARPH, PNAP, PHP — a refresher….a must read.

My health care clients are professionals under investigation for DUI, work-place narcotic diversion, or any other criminal or Drug Act violations. The filing of a criminal complaint or licensing board investigation of an impairment allegation triggers a referral to the Professional Health Monitoring Program (“PHMP”).

The next step is the assigned case worker sends a “letter of concern”.  I have written extensively about the letter of concern. These letters “advise” licensees how to avoid Board prosecution when there is no Board prosecution.  These letters inform licensees how to help themselves when the criminal case is pending, a Board investigation is incomplete, or a work place matter has been closed or new employment secured.

I am writing this updated blog during our pandemic because this “Letter of Concern” is extremely deceiving. The letter claims the Voluntary Recovery Program provides a method by which licensed health care professionals suffering from a mental or physical disorder can be directed to appropriate treatment and received monitoring to ensure they remain capable of practicing safely.

However, the program never does this.   PHMP case workers do not direct medical, psychiatric, or psychological care.  The PHMP case workers do not prescribe medicine, can not give medical advice, and do not have authority to vary the PHMP for participant’s individual issues.

Before any formal Board order is entered – or formal medical doctor evaluation takes place –  the PHMP, VRP case worker almost forces the healthcare professional to admit they are addicted to drugs or alcohol.  Then, pre-Board order, the PHMP VRP case worker forces licensees to comply with the job and career ending monitoring program.

The letter offering the VRP first identifies licensees eligibility to participate in the program. Eligibility requires evaluation buy a VRP assessor, not board certified drug and alcohol addiction medical doctor. Eligibility requires licenses to an accept and adhere to a treatment plan approved by the assessor, at the licensee’s own expense.  Eligibility requires pre-Board approval of an agreement that the licensee not accept or continue employment in any position requiring licensure until the VRP case manager or assessor approved by licensee to work.

To be “eligible” the professional must admit they are impaired, voluntarily surrender to the dictates of the VRP program caseworker, and then successfully complete at least three years of monitoring. The program demands complete cooperation with the caseworker’s demands for unrestricted access to medical records, supervision of all medications, and demand for attendance in NA or AA programs for three to five years.  90 in 90, and then every day thereafter until the case workers says stop.  The hell with your job, family, relationship, the weather, vacation.

All of these eligibility in terms and conditions of participation in the VRP are based upon licensees admitting to an addiction or impairment. Any licensee who agrees to the terms of this pre Board ordered program without clearly understanding what they are doing risks their entire career.

In Pennsylvania Graduate Health Care Schooling There Is NO Reasonable Accommodation for Medical Marijuana Use

I write extensively about medical marijuana and health care related employment. I write extensively about Pennsylvania’s Medical Marijuana Act and issues associated with securing a Medical Marijuana Card in Pennsylvania. I write and litigate extensively about Pennsylvania’s health related boards’ alcohol and drug impairment program (the VRP, PHMP, and PNAP, SARPH, and the PHP).

Applying for a Pennsylvania medical marijuana card requires applicants to verify they suffer from the medical disability not treatable by any scheduled medication; that the only means of treatment is to take legally prescribed medical marijuana. I advise every health care professional this is a dangerous and career ending decision to make.

Although medical marijuana is now legal in Pennsylvania, employers do not have to employ individuals under the influence of marijuana while on the job. That is a federal Occupational and Safety Health Administration (OSHA) rule.  Pennsylvania hospitals are also not required to employ health care professionals who are under the influence of medical marijuana while on the job.  Drug testing is allowed and proper.  Testing positive for marijuana ingestion but possessing an MMA card does not eliminate the event as reportable under Pennsylvania’s health care related regulations.

I also represent many students in the healthcare space (graduate training nurses, pharmacists, or doctors) who during school are investigated and charged with DUI or possession of drugs (a Pennsylvania Drug Act). These cases become evidence of a potential impairment for a future applicant of a Pennsylvania health care license.

In a recent case, Pennsylvania’s Commonwealth court was called to interpret the intersection of the Pennsylvania Human Relations Commission regulations as they apply to a nursing student’s request for a reasonable accommodation to be permitted to ingest legally prescribed medical marijuana medication due to her suffering medically diagnosis disability of PTSD and Irritable Bowel Syndrome.   Harrisburg Area Community College v. Pennsylvania Human…, — A.3d —- (2020).

The case involved Pennsylvania Fair Educational Opportunities Act (PFEOA) and Pennsylvania Medical Marijuana Act (MMA).  The sole issue on appeal is whether the anti-discrimination provisions of PHRA and PFEOA require accommodation of the nurse’s lawful use of medical marijuana under the MMA.  First the Court looked at the Federal Controlled Substance Act (Federal CSA).

The Federal CSA expressly includes marijuana on the list of drugs which are described as having no accepted medical use. In other words, Schedule I drugs are scheduled as such because Congress has determined that the drug has (1) a high potential for abuse, (2) no currently accepted medical use, and (3) a lack of accepted safety for the use of the drug under medical supervision. “Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.”.

This is in contrast to Pennsylvania’s MMA.  MMA provides generally that the use or possession of medical marijuana is lawful and states that “[n]otwithstanding any provision of law to the contrary, use or possession of medical marijuana as set forth in [the MMA] is lawful within this Commonwealth.” 35 P.S. § 10231.303(a) (emphasis added). Section 2101 of the MMA provides that the “possession and consumption of medical marijuana permitted under [the MMA] shall not be deemed to be a violation of the [Pennsylvania Drug Act]. If a provision of the [Pennsylvania Drug Act] relating to marijuana conflicts with a provision of [the MMA], this act shall take precedence.” 35 P.S. § 10231.2101.

As for employers, however, the MMA section 2103(b) of the MMA, provides, in full:

(b) Employment.

(1) No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.

(2) Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.

(3) Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.

35 P.S. § 10231.2103(b) (emphasis added).

After reviewing the rules of statutory construction and other cases discussing legislative intent Commonwealth court concludes:

Although the MMA provides that medical marijuana use is lawful in Pennsylvania, given the silence in the MMA with respect to PHRA and PFEOA and the absence of any specific protection for students, there is no reason to infer that the General Assembly intended to require educational institutions to accommodate a student’s use of medical marijuana.

In Looking at how other states addressed the impact of legalizing recreational marijuana, Commonwealth court turned to The California Supreme Court. After the plaintiff was discharged by his employer for medical marijuana use, he brought a lawsuit against his employer under California’s anti-disability discrimination law. Id. Like PHRA, California’s anti-discrimination law did not require employers to accommodate the use of illegal drugs. Id., 70 Cal.Rptr.3d 382, 174 P.3d at 204-05. The California Supreme Court determined that although California voters had decided to legalize medical marijuana for certain uses, there was nothing in California’s medical marijuana law to suggest that California voters intended the law to require employers to accommodate employees’ medical marijuana use under California’s anti-discrimination law. Id., 70 Cal.Rptr.3d 382, 174 P.3d at 205-07. The absence of any statutory provision requiring accommodation of medical marijuana usage by students renders the circumstance analogous to that at issue in Ross. That is, there is nothing in the MMA suggesting that the General Assembly intended to require educational institutions to accommodate students’ usage of medical marijuana under PHRA or PFEOA.

The Court thereafter concludes: The MMA does not provide any requirements for accommodations of post-secondary students who use medical marijuana for a disability. Moreover, the General Assembly chose not to amend PHRA or PFEOA after passage of the MMA to otherwise remove the applicability of the Federal CSA, which prohibits the use of Schedule I drugs, including medical marijuana. For these reasons educational institution are not required to provide students with any reasonable accommodation for her use of medical marijuana.

Pennsylvania Immediate Temporary Suspensions of Health Care Professional Licenses — A New Day

Pennsylvania physicians, pharmacists and nurses currently practice in an extreme enforcement environment.  Every medical professional charged with a criminal offense could face severe license discipline.  One out of four (25%) of Pennsylvania’s health care related disciplinary cases start with Board prosecutors filing Immediate Temporary Suspension (“ITS”) petitions to emergently suspend the professional’s license.  

If you receive this type of petition, hire the right attorney.  Board prosecutors file these petitions, falsely claiming the licensee is an immediate danger to public health.  The Board then suspends, pre-hearing, the license for 6 months pending formal disciplinary action.

However, prosecutors typically, and merely, attach the criminal complaint to the petition.   It does not matter when crime happened.  It could be months ago! Experienced counsel should answer the petition and object to the evidence used to destroy the healthcare professional’s license and future.  Do not agree to any suspension! Ask for a hearing within 30 days and force the Board prosecutor to prove his/her case. 

Every licensee should vigorously fight these emergent license suspension petitions.  Once the petition is answered, a hearing is scheduled in 30 days. At the hearing it is imperative to object to any suspension petition based on the police complaint hearsay evidence. 

In my recent case, Yuan v. BPOA, we raised this issue.  Yuan’s criminal charges were based upon facts 10 months old, for which there was no medical malpractice or other civil cases pending.  The Board ITS petition only attached the criminal complaint. The Board read the criminal complaint and suspended my client’s medical license.  We objected, answering the petition and being ready for the ITS hearing in 30 days. 

Importantly, with covid-19 related criminal court delays, Dr. Yuan’s criminal case will not be heard for at least 18 months. No criminal preliminary hearing has taken place yet.  At the medical license suspension hearing the prosecutor only introduced the criminal complaint and the detective’s testimony – which was all hearsay evidence.  The medical board prosecutor did not call any patient witnesses.   The hearing continued the suspension.  

We filed an appeal to Commonwealth Court.  We also filed a Petition to Stay the improper license suspension.  Commonwealth Court agreed, ruling health care related boards cannot rely on hearsay and inadmissible evidence to emergently suspend a professional’s license.  The appellate court reinstated Dr. Yuan’s medical license.

This argument has been raised in prior Commonwealth court cases.  However, the Board prosecutors keep filing ITS petitions and only attach the criminal complaint. May attorneys and their clients do not fight these petitions.  Every case must be fought.  Board prosecutors must be forced to introduce competent admissible evidence at these hearings.  

In Yuan’s case, Commonwealth court admonished the hearing examiners and licensing board prosecutors that the mere filing of criminal charges against licensees is insufficient evidence upon which an Immediate Temporary Suspension order may lay. The court reviewed a recent Pennsylvania Supreme Court criminal case decision discussing hearsay evidence and preliminary hearing.  Commonwealth v. McClelland holds that hearsay evidence alone does not establish a prima facie case in a preliminary hearing on a criminal complaint. Commonwealth court emphasized economic liberty interests in Article 1,  Section 1 of the Pennsylvania Constitution apply to McClelland to licensees’ right to earn a living. 

Yuan v. BPOA- Medical Board, is momentous decision in license prosecutions and ITS petitions.  The board prosecutors must now offer into evidence more than just the criminal complaint to carry their burden of proof at these hearings.  Licensees without proper representation will not be aware of this rule. 

For every health care professional, continuing to work and maintain a professional license during the pendency of any criminal or disciplinary charges is imperative. Everybody needs to work to make money to pay the bills and to afford a criminal or licensing attorney. Board prosecutors’ goal of financially strangling licensee’s income or revenue so they cannot afford competent counsel is now repudiated as a means of prosecutorial oppression. Call me to discuss your case.

Pennsylvania Medical Professionals, Covid-19, and Stress.

https://digital.olivesoftware.com/Olive/ODN/PhiladelphiaInquirer/shared/ShowArticle.aspx?doc=PHQP%2F2020%2F04%2F30&entity=Ar01701&sk=3AE67481&mode=text

Petitions to Terminate DMU Probation Orders — End the Torture.

I represent health care workers in Pennsylvania’s health care professional monitoring program.  Some are voluntarily in the program.  Some are forced.  Some of my clients’ contracts have been extended from 3 to 5 to 7 years in either PNAP, SARPH, or PHP for a minor, single violation of the Consent Agreement.  Some of these extensions are forced or voluntarily entered.  It is time to end your PNAP PHP SARPH probation.

Some clients have their PHMP probation terminated and their license suspended after the Board prosecutor files a Petition for Appropriate Relief or PAR.  This filing is made after the PHMP and PNAP/PHP case worker complains to you and then the prosecutor that drug tests are missed or positive, or other violations of the agreements or Board orders occurred.  The problem here is that case workers claim positive tests or other violations right when licensees are about to be finished their probation.

A recent case has such a recurrent time line, I thought I would lay it out. The licensee’s PNAP Agreement started before November of 2009.  The formal Consent Agreement is dated November 2009.  In July 2013 the PNAP case worker claimed a drug test violation.  However, obviously the licensee should have been out of the program by then.  In October 2013 the prosecutor filed a petition to suspend the license.  That petition carries an automatic license suspension until “things are figured out”.  This is the PAR.   Sound familiar yet?

Even before the PAR was filed, the licensee remained complaint with PNAP, attending an evaluation in July of 2013 that found an alcohol use disorder in full sustained remission.  This means there is no active impairment. The October 2013 license suspension matter did not get a hearing until October of 2016, a proposed adjudication was decided in December 2016 and the full Nursing Board ordered license reinstatement in March 2017.  From 2013 to 2017 the licensee’s license was suspended — but the alcohol use disorder was in full sustained remission as the license participated in PNAP the entire time of the suspension.

The PNAP compliance meant there was no ongoing impairment and there was no evidence of any disorder rendering the licensee unable to safely practice.  As a matter of fact and law, the Board could not — BUT DID — require the licensee to re-enroll in PNAP as a condition of reinstatement of license. To get a license back, the licensee had to follow the order.  This order was inconsistent with the facts and law that revealed between 2014 –  2017 the licensee  logged into record trek thousands of times and was tested at least monthly, costing over $5000.

Jump forward to 2020.  This licensee is ready to finish the three year DMU probation from March of 2017 to March 2020.  Not too funny, but the  PNAP case worker just now claims a positive drug test and claims the need for another extension of the contract.  Sound familiar?  Yes…. everyday I hear this story.  I file Petitions to Terminate this type of forced DMU Probation before PNAP or the prosecutor can file a PAR.

At this juncture after being forced into PNAP for 5, 6, 8 years, compliant licensees have attended thousands of AA meetings, 30-day inpatient, called Record Trac everyday, and undergo thousands of drug tests costing thousands of dollars.  Some clients have spent $15,000 in inpatient care, $2500 in on going forced out-patient care, and more than $7500 in drug tests.

The typical Board order forcing DMU enrollment can be modified and subject to termination at paragraph 45.  Please read that paragraph in your Board Order.  Or if its a Consent Agreement, it is paragaph 7.  Read them and call me.  The case is Kenney v. Bureau of Prof’l & Occupational Affairs, State Bd. of Pharmacy, 203 A.3d 421 (Pa. Commw. Ct. 2019).  Also read Thim v. BPOA, State Board of Nursing, July 24, 2019 Not Reported in Atl. Rptr. 2019 WL 3315143.  These cases discuss the burden of proof for the Commonwealth when it alleges an ongoing impairment and when a licensee can get out of the DMU and PHMP.

In many of these cases, the Petition to Terminate Probation should be granted.  The Boards can not capricious disregard evidence of no ongoing impairment.  The Boards violate the law “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result.” Bentley v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 179 A.3d 1196, 1200 (Pa. Cmwlth. 2018).

Call me to discuss ending your PNAP PHP SARPH contract, DMU Order, and the torture these cases workers try to inflict every day, week, month, year of your probation.

Health Care Professional License Renewal Extensions – Covid-19

 

 

March 27, 2020

 

COVID-19 License Renewal Extensions for Nurses and Others

 

 

This document includes guidance for:

  • State Board of Medicine
  • State Board of Nursing
  • State Board of Examiners of Nursing Home Administrators
  • State Board of Barber Examiners`
  • State Navigation Commission
  • State Real Estate Commission

 

 

Summary:

Due to the COVID-19 emergency, the Department of State requested, and Governor Wolf granted, the extension for 90 days of certain license renewal deadlines which fall between April 30, 2020, and June 30, 2020. Any associated regulations that establish these dates are temporarily suspensed.

While the department will provide guidance encouraging licensees to renew on time, if possible, this waiver ensures that if they miss the deadline their licenses will remain valid, and they will have an additional 90 days to renew them.

 

The following professional and occupational license renewal deadlines will be extended:

 

State Board of Medicine:

  • Graduate Medical Trainee license renewal will be extended from June 30, 2020, to Sept. 28,

State Board of Nursing:

  • Registered Nurse, Clinical Nurse Specialist, Certified Registered Nurse Practitioner and Prescriptive Authority license renewal deadlines will be extended from April 30, 2020, to July 29,
  • Practical Nurse license renewal will be extended from June 30, 2020, to Sept. 28,

 

State Board of Examiners of Nursing Home Administrators:

  • The Nursing Home Administrator license renewal deadline will be extended from June 30, 2020, to Sept. 28,

State Board of Barber Examiners:

  • Barber license renewal will be extended from April 30, 2020, to July 29,

State Navigation Commission:

  • Navigation Pilot license renewal will be extended from May 1, 2020, to July 30,

State Real Estate Commission:

  • Renewal deadlines for all license types will be extended from May 31, 2020, to Aug. 29,

Pennsylvania Authorizes Licensed Health Care Professionals to Provide Services via Telemedicine During Coronavirus Emergency

March 18, 2020

 

Pennsylvania Authorizes Licensed Health Care Professionals to Provide Services via Telemedicine During Coronavirus Emergency

In order to increase the number of health care practitioners available to respond to the COVID-19 emergency and to ensure continuity of patient care and services, Governor Wolf has granted the Department of State’s request to allow health care professionals licensed under any of the Department of State’s Bureau of Professional and Occupational Affairs (BPOA) licensing boards to provide services to patients via telemedicine during the coronavirus emergency.

 

For all licensing-related inquiries, please use the email addresses found here: Board Contact Info

 

Health Care Practitioners Currently Licensed In PA

Currently no Pennsylvania statute authorizes or prohibits the practice of telemedicine.

Due to the COVID-19 emergency, the Department requested authority to issue guidance to licensees under any of BPOA’s health-licensing boards permitting them to provide services via telemedicine when appropriate.

Those boards are:

  • Chiropractic
  • Dentistry
  • Medicine
  • Nursing
  • Optometry
  • Pharmacy
  • Podiatry
  • Psychology
  • Massage Therapy
  • Osteopathic Medicine
  • Nursing Home Administrators
  • Occupational Therapy Education and Licensure
  • Physical Therapy
  • Social Workers, Marriage and Family Therapists, and Professional Counselors
  • Examiners in Speech-Language Pathology and Audiology
  • Veterinary Medicine

Health Care Practitioners Licensed in Other States, but Not Licensed in PA

 

 

  • There is a significant need for certain health care professionals to physically travel to Pennsylvania to assist in the emergency effort, but also a substantial need for practitioners licensed outside Pennsylvania to provide services via telemedicine.
  • Waiver request: The Department requested authorization from the Governor to allow licensed practitioners in other states to provide services to Pennsylvanians via the use of telemedicine for the duration of the emergency without obtaining a Pennsylvania license. This request was approved by the Governor if the practitioner meets the following requirements:
    • They are licensed and in good standing in their home state, territory or country.
    • They must provide the Board they would normally seek licensure in with the following information prior to practicing telemedicine with Pennsylvanians:
      • The practitioner’s full name, home or work mailing address, telephone number where they can be reached, and an email address.
      • Identify the practitioner’s license type (e.g., “physician and surgeon,” “registered nurse,” etc.), any license number or other identifying information that is unique to that practitioner’s license, and the identify the state or other governmental body that issued the license.
    • Further details on submission method of the information above will be provided on the BPOA

 

Other Guidance

 

  • The Department of State will provide references on telemedicine issued by other Commonwealth agencies in any communications or postings/pages on this issue, for ease of access for all
  • All practitioners using telemedicine are advised to remain informed on any and all federal and state laws, regulations and guidance regarding telemedicine, including but not limited to a practitioner’s obligations under the Health Insurance Portability and Accountability Act (HIPAA) and recent guidance provided for the

U.S. Department of Health and Human Services, which can be found here: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency- preparedness/notification-enforcement-discretion-telehealth/index.html

  • Authorization to engage in telemedicine from a professional licensing standpoint is separate and apart from any insurance coverage/payment issues that fall under the Department of Health, the Department of Human Services, the Department of Insurance, or any other state or federal

 

ECFMG and USMLE — No Irregular Behavior

Contrition and a good, honest client portend great results. My USMLE client traveled very far for this hearing in Philadelphia.  She was nervous, but testified credibly, confidently, and sympathetically. She testified about medical issues, significant many personal issues, including some financial difficulties.

She admitted oversight and failing to read the The USMLE Bulletin of Information.  However, the most important part of our presentation is that she accepted responsibility for the error, and reiterated her overwhelming health, personal, and financial issues at the time of the electronic submission.

“Following careful consideration of all of the information available, the CIR elected not to issue  a finding of irregular behavior. Accordingly, an annotation of irregular behavior will not be entered on your record with respect to this incident.”

 

Case over.  Call me to address your USMLE or ECFMG matters.

Your Medical Practice and DEA Investigations

A federal criminal target letter from a local United States Attorney notifies a potential defendant that they are the “target of” an FBI, DEA, or other governmental agency criminal investigation. Target letters say “you are the target” and place the recipient on notice to hire an attorney.

Recently, a medical practitioner brought me a new letter.  This letter notified him that his practice was now under federal criminal investigation. It was not a target letter, per se, but a letter asking him to meet.  I was amazed.

The letter stemmed from a 2017 DHS administrative subpoena for medical records for a small subset of that physician’s patient files. The DEA subpoenaed specific patient files based upon patient’s DEA records indicating they had received a substantial number of controlled substance prescriptions. The DEA learned this information through a computer search of this physician’s prescribing patterns, pharmacy dispensing patterns, and actual patient received controlled substance prescriptions.  The DEA then subpoenaed the medical records to see if the doctor had a medical basis to write the prescriptions the database revealed.  Doctors have become the targets of the opioid crisis.

After the physician produced his records the DEA submitted the medical records to their expert physician. This is when something unusual happened.  The US Attorney took the time to notify the physician the expert concluded the physician’s prescribing pattern, quantity, and frequency of controlled substance prescriptions served no legitimate medical purpose in the usual course of professional practice. His medical practice for that small set of patients was criminal in nature.

The US Attorney did not simply indict the doctor.  The government identified to the doctor the numerous deficiencies and violations of standards in the physician’s prescribing practice:

  1. The physician was prescribing high-dose opioids frequently with benzodiazepines;
  2. The medical records did not identify a medical condition justifying the prescribing;
  3. The physician failed to document changes in prescribing patterns between patients with changing medical conditions;
  4. The physician failed to document increase in benefit to the patient from the opioid treatment and failed to provide alternate treatments;
  5. The physician failed to stop prescribing Opioids after proof of failed drug screens:
  6. The physician failed to stop prescribing opioids when no drug screens were performed;
  7. The physician failed to stop prescribing opioids to patients with positive drug test for alcohol, other opiates and benzodiazepines;
  8. The physician prescribed controlled substances without performing any physical examination;
  9. The physician prescribed controlled substances without a patient treatment plan, or inadequate treatment plans;
  10. The physician prescribed controlled substances to patients with no confirmed diagnosis of a medical condition;
  11. Patient records were inadequate, missing, or unreadable or did not have current medication or diagnosis notated in the file;
  12. Many files did not possess updated Pennsylvania prescription drug monitoring program reports

Amazingly this United States Attorney told the physician his medical records reflected in extraordinary pattern of distributing controlled substances while failing to satisfy relevant standards under the Controlled Substances Act and the False Claims Act. The physician was put on notice that the Controlled Substances Act and it’s implementing regulations require prescriptions be issued for legitimate medical purposes by any individual practitioner acting in the usual course of his profession. 21 CFR 1306.04(A).

If a prescription is issued but fails to satisfy those standards to prescription, it is not valid under 21 USC § 842(a)(1), 21 USC § 829(a). These violations provide for a civil penalty under 21 USC § 842C1A of not more than $25,000 per prescription or no more than a total of $64,820 for all violations after November 2, 2015. The physician was also notified that if Medicare paid for any of the prescriptions under a federal healthcare program, the physician was subject to False Claims Act triple damages under 31 USC § 3729.

This doctor was invited him to come and talk to the United States attorney and the Department of Justice about this letter and the 12 files in question.  Most importantly:

  1. the doctor was not yet indicted;
  2. his entire office files were not seized;
  3. his personal and business assets were not subject to civil forfeiture claims
  4. his personal and business assets were not frozen
  5. he was not forced to surrender his DEA prescribing Authority as a bail condition over a holiday weekend;
  6. he was not emergently charged by the Pennsylvania Medical Board;
  7. and he not in jail.

My other clients have not been as fortunate to receive, while intimidating, such an explicit letter.  This doctor was invited to talk to the United States Attorney and the Department of Justice about this letter.  If you have received a letter similar to this please call me to discuss your options.

Pennsylvania’s New Opioid Treatment Agreement Law

On Nov. 27, 2019 Pennsylvania Governor Tom Wolf sign into law Act 112 of 2019.  This is Pennsylvania’s Opioid Treatment Agreement Law.  It  took immediate effect.  The law requires prescribers to enter into an opioid patient treatment agreement before issuing the first prescription in a single course of treatment for chronic pain using any opioid-containing medication, regardless of whether the dosage is modified during treatment.

Among the new requirements, the Prescriber must: determine whether an individual has taken or is currently taking a prescription drug to treat a substance use disorder; have a discussion with the patient about the risks of addiction, and additional risks if the patient suffers from a mental health condition or substance use disorder; present non-opioid treatment options available; and discuss the dangers of taking a controlled substance containing an opioid with benzodiazepines, alcohol, or other depressants. The Prescriber must review with the patient, and both must sign, a treatment agreement containing a number of required elements, including the patient’s consent to targeted urine drug testing if medically necessary. The Prescriber must obtain written consent from the patient for the prescription, and record the consent on the treatment agreement. The treatment agreement must be maintained in the patient’s medical record.

The law exempts from these requirements medical emergencies, management of pain associated with cancer, and use in palliative or hospice care. Violations of the law may result in sanctions to the Prescriber’s license in accordance with the applicable professional practice act. The Act is effective immediately, and mandates that the Pennsylvania Department of Health issue regulations within 90 days of the Act’s enactment.  Contact me for a Patient Agreement Form.

Aside from these patient agreements, 35 Pa. Cons. Stat. § 52A03 (2016). Pennsylvania also amended its laws regulating opioid prescribing to minors in 2016. The amended statute prohibits prescriber from prescribing more than a seven-day supply of a controlled substance containing an opioid to a minor.  Requirements with the force of law: 35 Pa. Cons. Stat. § 873.3 (2016). As with minors, Pennsylvania also now prohibits prescribers from prescribing more than a seven-day supply of opioids to persons receiving care in emergency departments.

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