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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DUI — Driving After Inhaling — And Expert Testimony

Advanced Roadside Impaired Driving Enforcement (A.R.I.D.E.) is the forefront of drunk driving enforcement in the age of legal and medical marijuana. State Troopers are trained to identify impaired drivers by substances other than alcohol. These officers receive training on Standard Field Sobriety (“FST”) and other field tests, and eye tests involving the convergence, pupil size, and reaction to light as well as methods of determining ingestion of the substance and classification of drugs (illegal and legal) by the type of impairment.

DUI, Pot, Car Keys

Typically these courses are 16 hours and “train” officers about drugs in the human body, heighten their observation of suspects eyes, and instruct them on seven drug categories and the effects of drug combinations.

Courts are pushing back against the junk science these courses to teach police officers. Courts are limitting the admissibility of field sobriety tests and officer conclusions of impairment based upon drivers “passing” or “failing” a FST.

Commonwealth v. Gerhardt, 477 Mass. 775 (2017) is the first case in the nation to address this issue. In this case the court considered the admissibility of FSTs where a police officer suspects that a driver has been operating under the influence of marijuana. The court observed that the three standard FSTs — the “horizontal gaze nystagmus test,” the “walk and turn test” and the “one leg stand test” — were created to assess motorists suspected of operating under the influence of alcohol. The court found that the tests were developed specifically to measure alcohol consumption as there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.

By contrast, the court noted in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.

The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. Rather, the court concludes that, to the extent that they are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment.

The introduction in evidence of the officer’s observations of what will be described as “roadside assessments” shall be without any statement as to whether the driver’s performance would have been deemed a “pass” or a “fail,” or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.

This decision comports with the my prior blogs on drug recognition expert testimony and the lack of scientific basis for such. Please call me to discuss your legal matter.

Alcohol Use Disorder — Continuing Condition and Safe to Practice

Many professionals consume alcohol in a moderate and temperate manner. Reasonable, social alcohol consumption that results in a driving under the influence criminal charge is an unfortunate event. The criminal consequence and interactions with the justice system are necessary impediments to excessive drinking.

However, reasonable social drinking does not mean licensed professionals suffer from a drug and alcohol addiction or impairment that is both continuing and rendering the professional unsafe to practice their profession. It is these two statutory requirements the PHMP, PAP, and PNAP, ignore when enticing and scaring licensees to enroll in the PHMP monitoring program. PHMP’s threats and intimidation (PHMP Scare Tactics) when combined with licensees’ anxiety and stress from the criminal case create the perfect storm for licensees to make ill-informed and legally incorrect decisions regarding their professional license.

A recent case is a perfect example of why licensees should hire counsel upon receipt of any PHMP paperwork. My client hired me after she had attended a PHMP assessment and, having rejected it, also attended without counsel a Mental and Physical Evaluation. The Board MPE expert concluded she suffered from an alcohol use disorder that required monitoring for her to safely practice. She rejected the DMU/PHMP and fought her case. Luckily for this licensee she hired me.

In all impairment cases, the Practical Nurse Law, 63 P.S. §651-667.8, authorizes discipline if there is sufficient evidence in the record to demonstrate that licensee is addicted to alcohol, that any such dependence is continuing, and any such dependence prevents her from practicing practical nursing with reasonable skill and safety to patients. Absent any one of these factors and the Commonwealth loses its cases. Translated into English, the Commonwealth must prove a professional’s alcohol use condition existed, is continuing, and results in the professional’s inability to practice their profession with care and safety.

During cross-examination of their expert I exposed the inaccuracies and legally deficiencies of his opinion. The expert conceded he did not request, and thus did not review, my client’s medical records, employment records, performance reviews from her current employer, and did not contact reference persons (including probation officer) my client provided. At the hearing the expert disclosed he did not possess any factual information about my client’s work performance, such as employer complaints, or any evidence indicating that her use of alcohol has ever affected her work or resulted in her being requested or directed to submit to alcohol and/or drug testing while at work.

As with many of my cases, prosecutors attempt to satisfy their burden of proof through expert testimony that only says the professional is able to practice practical nursing with reasonable skill and safety to patients as long as she is monitored. The usual language is “I believe she is impaired and that it is unsafe for her to practice nursing with requisite skill and safety without monitoring. As such, experts routinely recommend monitoring based on the need for objective verification of a licensee’s abstinence from alcohol. However, this is not the burden of proof.

A review of the evidence showed this licensee was abstinent for 15 months since the MPE, had eight months of sobriety between the 2016 DUI and the examination, and accumulated years of continuous sobriety between 2008 and 2016. As of the date of the hearing my client was in full sustained remission. As well the expert had no information or documentation suggesting that my client relapsed since the 2016 DUI, given that the testing he ordered for her in February of 2017 came back negative. The Commonwealth could not meet its burden of proof of a continuing dependency element.

Even absent a continuing alcohol dependency, the Commonwealth must still also prove that any illness or dependency, continuing or otherwise, has prevents the licensee from competently practicing nursing with reasonable skill and safety to patients. Here is where the expert testimony was clearly deficient.

The Board’s expert only found Respondent unable to practice nursing safely unless she is monitored. That is not the law. Recommending monitoring as a safety “precautionary measure” must be supported by the evidence. Here the expert did not avail himself of certain sources of information, whose names and contact information my client provided, to corroborate or counter the statements she made by during the examination.

Rather, the expert testified that “when someone gives you a list of people to call, 99 percent of the time they give glowing report, and I can’ t believe what they tell me… and .it may be true, but I can’t base my opinion on that.” Yet, when asked directly, the expert could not cite any evidence that, as of the hearing date, my client was unable to practice nursing with reasonable skill and safety to patients.

Please call me to discuss your case and pending prosecution.

Act 6 of 2018 — All Licensees Must Report Criminal or Disciplinary Charges with in 30 Days

Act 6 of 2018 is a new law in 2018. It represents a fundamental shift in Pennsylvania licensees’ duty to report criminal charges and disciplinary actions filed against them in any jurisdiction in the entire country. The General Assembly passed the new law in anticipation of medical marijuana. The enforcement environment is getting much stricter in Pennsylvania. Every Pennsylvania professional licensee must report the misdemeanor and felony criminal charges to their respective board within 30 days receipt of criminal charges. It is a disciplinary offense for any licensee to not report within 30 days of receipt of criminal charges.

Act 6 of 2018 specifically authorizes the The Bureau of Professional and Occupational Affairs (“BPOA”) to subscribe to JNET. My prior blogs discuss JNET, the criminal reporting database network to which the Nursing Board began subscribing.   JNET now levels the reporting responsibility and Boards learning of its licensees’ criminal conduct.  There was a significant difference between nurses and doctors, pharmacist, realtors, cosmetologists, and funeral directors (and all others) in their criminal charge reporting responsibilities. All licensees are now treated equal. Licensees can not wait to report — thinking at a preliminary hearing charges will be reduced to a summary offense, for which there is a guilty plea. The charging is the reportable event, not the end result.

This all began in 2014.  In late 2014 the General Assembly modified Pennsylvania professional licensing regulations to require nurses to report criminal charges, not conviction, within 30 day days of charges being filing. The BPOA utilized the last several years to create a new enforcement infrastructure and mechanisms to insure disciplinary action is initiated against all nurses who either reported or they learned of criminal conduct or did not report at all.  The reporting responsibility is in addition to reporting criminal charges upon licensee renewal.

Through JNET the Nursing Board became familiar with the criminal reporting subscription service and its information power. Obviously the Board created a flow chart starting at receipt of criminal information through to disciplinary charge initiation for failure to report. The Nursing Board worked out the differences between JNET and nurse reporting of charges. Steps between failure to report, Board investigation, document review, and charges have also been ironed out.

Apparently BPOA had a significantly positive experience with JNET’s notification process, allowing it to better enforce nurses’ reporting responsibility. Expanding 30-day reporting of criminal activity to all other 25 licensing boards will inundate the BPOA with information regarding licensees’ criminal behavior.  This will produce some delays in failure to report and initiation of criminal charges.

The Act also gives the BPOA prosecutor not just the authority but the command to initiate within 30 days an emergent suspension if a licensee’s criminal acts reveal a clear and present danger to the public. The licensee is afforded a preliminary hearing to contest the automatic license suspension. This “automatic suspension process” is not new.

All licensees were spared the obligation to report summary Drug Act violations. By this I mean summary charges for disorderly conduct written by cops giving a break to licensees caught with illegal marijuana. This reporting requirement was in the original versions of the bill but stricken from the final version. The Act includes authority for every Board to institute a schedule of fines for escalating number of failure to report charges.

Act 6 includes a very limited right of expungement. This is only for disciplinary action for failure to comply with continued education requirements. The law explicitly precludes any expungement of any disciplinary order by any board for any other offense. Aside from capping Board fines to $10,000, BPOA can enter a judgment against the licensee if the fine is not paid in 5 years.

Call me to discuss your case.

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

 

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.
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Jerry’s career took off.  So should yours.

PNAP Case workers — Do Not Trust Them

Medical professionals or their employers call PNAP case workers and intake administrators for numerous reasons.  The initial complaint call against the licensee  generates the “Letter of Concern.”  It is the response call from the licensee to PHMP/PNAP/SARPH/PAP that starts the proverbial ball rolling.  Here are several important facts each licensee should be aware of before calling PNAP.

PNAP/PAP/PHMP caseworkers are told to not tell inquiring licensees the truth. PNAP and PHMP caseworkers are instructed to emphasize the worst possible legal and licensing consequences if there is no cooperation.  PNAP/PHMP caseworkers are instructed to intimidate and scare licensees into the program. PNAP caseworkers are instructed to tell licensees about the costs of the Mental and Physical Evaluation and court fees.  PNAP caseworkers are instructed provide the minimum legal information possible.

PNAP caseworkers do not know the law.  PNAP/PHMP/PAP case workers are not trained in the several health care boards’ regulations.  PHMP/PNAP/PAP case workers do not understand the legal implications of the wrong advice they give. PNAP case workers do not know how to tell the truth.  Some PNAP caseworkers may be in the program too.

 

For every medical professional, agreeing to the initial PNAP assessment is the worst thing you can do. Current conflicts between the DSM-IV and DSM V alcohol use disorder – mild, moderate, or severe – are creating significant issues in determinations of impairment for PNAP assessors.  I have learned that the PNAP assessors could be  calling the PNAP caseworker and managers, who help the assessor diagnosis an impairment. This is improper.

PNAP and PHMP assessments should be performed independently, by appropriately trained medical professionals. PNAP and PHMP supervisors (Simpson and Knipe) should not be consulted on diagnosis. This type of diagnosis cooperation smacks of a pre-ordained determination of an impairment to insure medical professionals go in the program.  Please understand the above is not an anecdote or a hypothetical scenario. I have been told about PNAP supervisors providing supplemental questions and facts to assessors to insure a determination of impairment and a conclusion that the monitoring program is required.  Ethically, any assessor/PNAP consultation is improper.

This tells me that the system of initial communication with PNAP (in which they lie to you) and the read assessment process renders this entire program unacceptable. Be careful.  Call me.

Notice of A Disciplinary Proceeding

Pennsylvania’s licensing boards officially communicate with their licensees only through regular mail or certified mail, return receipt requested.  Licensing boards are not legally authorized to communicate via email any disciplinary correspondence.   This is why every disciplinary board requires licensees, not the board staff,  to update their own mailing address.

There always is a percentage of licensees that after  licensure move throughout the Commonwealth and country.  Many fail to update their licensing board with their new mailing address. Licensees who fail to update their prospective board with their most recent address expose themselves to disciplinary action in their absence.

A new client, over two years ago became divorced, moved out-of-state, and failed to update the Pennsylvania Nursing Board with her new Florida mailing address.  Unbeknownst to her, two years ago the Pennsylvania Nursing Board commenced an investigation and initiated disciplinary proceedings against her license.  Board mail included a Mental and Physical evaluation petition, medical expert appointment scheduling notices, hearing notices, and formal board disciplinary decisions.

For the last two years her disgruntled ex-spouse – who stayed in the marital residence – received all of her mail.  He threw out all her mail, never telling her anything.  Because she was unaware, all appointments, hearings, and decisions took place in her absence. This client was ignorant to all that was taking place against her license in her absence. Her lack of notice is now causing significant long-term detrimental consequences with her license because Nursing Board disciplinary decisions were entered against her.

This client has been working in Florida under a second professional license.  Her most recent employer’s basic regulatory compliance process included an annual subscription to the National Practitioner Data Bank (“NPDB”) automated inquiry process for all licensees. Consequently, her employer was automatically notified of her 2018 Pennsylvania Nursing Board license suspension – of which she had no idea.  She was terminated and can not work until she rectifies her Pennsylvania nursing license disciplinary action.  All other potential employers will see the NPDB disciplinary action.

These disciplinary proceedings transpired over 18 months. Having not updated her formal mailing address, she did not receive the Mental and Physical Evaluation appointments, hearing notices, and formal disciplinary decisions. By the time she became aware of her Pennsylvania Nursing Board license suspension it was too late to take an appeal.

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Her only recourse is to comply with the terms of the license suspension order. This includes now attending the Mental and Physical evaluation, petitioning the Nursing Board for Reinstatement of her license, and attending a hearing in which she must prove she can resume the competent practice of professional nursing with reasonable skill and safety.  This process will take three to six months.  She is unable to practice nursing in her new jurisdiction.  Her State of Florida Nursing Board license may also subject to disciplinary action based upon the Pennsylvania Nursing Board disciplinary action.

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State boards are permitted to engage in disciplinary actions against licensees.  Boards must afford all licensees the opportunity to be heard in accordance with administrative agency law.  This law includes a provision that by regular mailing administrative actions to the licensee’s last known address the Board is affording that licensee reasonable notice of proceedings and is giving the licensee a sufficient opportunity to be heard.

Pennsylvania’s General Rules of Administrative Practice and Procedure (“GRAPP”) authorize service of any proceeding by regular mail, without a return receipt requested.  Email is not authorized.  Due process under both the federal and state Constitutions merely requires licensing boards make a respondent/licensee sufficiently aware of the charges against them and the procedures by which a defense can be presented.  Regular mail of any disciplinary petition or notice satisfies this constitutional obligation.  A licensee/respondent will suffer the consequences if they fail to attend evaluations, respond to petitions, file an answer within the time provided, or does not appear at hearings to challenge the charges against them.

In this client’s matter, having failed to attend a Mental and Physical and Evaluation, case law and board procedure allowed the prosecutor to file a petition Deeming Matters Admitted.  The Board accepts as true all allegations that warranted the Mental and Physical Evaluation.  This means mere suggestions of  drug use, work-related incidents, and/or drunk driving charges warranting an expert evaluation – but not proof of an impairment – become admitted and uncontested facts of an impairment.

This licensee cannot file a motion challenging the validity of the underlying mental and physical evaluation order, the factual findings of an impairment, or the need for monitoring of which the Board concluded after a hearing at which the licensee did not attend. The licensee can not contest the findings of fact or formal disciplinary action, which language the board transmits to the National Practitioner Data Bank.

This licensee’s failure to update her address precipitates a cascade of events that are easily avoided.  Licensing boards throughout the country have set in place this minimal notice and mailing procedure to be able to discipline in and out of state licensees in their absence.  The boards do not have to chase licensees down to discipline them.  Unlike in criminal matters where a defendant must almost always be present, state license boards can strip licensee’s of their property interest in their absence.  This client’s unfortunate predicament is a perfect example of the pitfalls of the failing to update your formal address with your licensing board.

Nurse, Doctors, and Intimate Relationships with Patients

Most health care related professional licensing schemes contain a uniform proscription against engaging in sexual intimacies with clients.  This sexual conduct bar does not depend on consensual or non-consensual acts.     Violating this conduct is the first and surest way to lose your professional license.  Prior relationships with current licensee and current relationships with former patients also creates huge problems.

The General Assembly, through the Pennsylvania Code defines  Sexual intimacies as romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include the following:

  • (i) Sexual intercourse, or any touching of the sexual or intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.
  • (ii) Nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature.
  • (iii) Sexual invitations.
  • (iv) Soliciting or accepting a date from a client/patient.
  • (v) Masturbating in the presence of a client/patient or encouraging a client/patient to masturbate in the presence of the licensed marriage and family therapist.
  • (vi) Indecent exposure, kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.  49 Pa. Code § 48.1
Section 49 Pa. Code § 21.146a, is a catch-all Pennsylvania Code provision setting forth as a procedural matter, not even a substantive violation,  a rule stating:
  • (a)  The consent of the patient to any sexual impropriety or violation is not a defense to any disciplinary charge for violation of the act or this subchapter.
  • (b)  Evidence of specific instances, opinion evidence, or reputation evidence of a patient’s past sexual conduct is not admissible in proceedings brought under §  21.148(b)(9) (relating to standards of nursing conduct).  The Board may consider sexual relationships between the nurse and the patient occurring prior to the professional relationship.
  • (c)  A nurse who attempts to raise as a defense an argument that conduct prohibited as a sexual violation or sexual impropriety was necessary or appropriate to the treatment of a patient shall be required to demonstrate competency in practice which relates directly to the treatment of sexual function or dysfunction. This competence may be demonstrated through educational training and supervised clinical experience. Appropriate discussions of sexual matters between a nurse and a patient shall be fully documented in patient records.

Apparently this conduct is prevalent in the psychology, psychiatry, licensed marriage and family therapist, and LSW and professional counselor professions.  I say this because the language in each of these licensing regulatory schemes is exact, precise, and consistently repeated throughout.   The law is very clear about this topic: 49 Pa.Code § 47.61 states: Sexual intimacies between a licensed social worker or licensed clinical social worker and a current client/patient, or an immediate family member of a current client/patient, are prohibited.  More importantly, licensed social workers and licensed clinical social workers may not accept as client/patients individuals with whom they have engaged in sexual intimacies.  For how long you ask?  Sexual intimacies between a licensed social worker or licensed clinical social worker and a former client/patient, or an immediate family member of a former client/patient are prohibited for 7 years following the termination of the professional relationship.

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Violation of these provision will warrant disciplinary action:

  • (a)  A violation of § §  47.61—47.63 (relating to prohibited conduct; former sexual partners as clients/patients; sexual intimacies with a former client/patient or an immediate family member of a former client/patient) will be deemed unprofessional conduct and will subject the licensed social worker or licensed clinical social worker to discipline under section 11(a)(2) of the act (63 P. S. §  1911(a)(2).
  • (b)   The consent of a former client/patient or immediate family member of a former client/patient to engage in sexual intimacies with the licensed social worker or licensed clinical social worker is not a defense in any disciplinary action brought under § §  47.61—47.63.

Pennsylvania does not recognize, along with all other states, that a mental health professional’s conduct in engaging in a sexual affair with a patient is actionable in tort (a medical malpractice action).  Thierfelder v. Wolfert, 617 Pa. 295, 327, 52 A.3d 1251, 1271 (2012).  However, our Commonwealth court routinely concludes the State Board of Medicine properly orders, and it is within their authority, that psychiatrist’s license to practice medicine be revoked on ground that he had engaged in sexual relations with his patients.  (“Revocation of psychiatrist’s license was reasonable sanction in light of his conduct.) Starr v. State Bd. of Med., 720 A.2d 183 (Pa. Commw. Ct. 1998); Morris v. State Bd. of Psychology, 697 A.2d 1034 (Pa. Commw. Ct. 1997).

medical-ethics-21-728

 

In these cases, the court concludes the Board of Medicine, and other boards, are entitled to deference in their determination of what constitutes “unprofessional conduct” as that term is used in Medical Practice Act (or their licensing schemes) section providing that practitioner may be disciplined for “unprofessional conduct.” 63 P.S. § 422.41(8).  As there is no per say rule of revocation, the regulatory language stated above in the counseling fields is overlapped by the Medical Practice Act.
There, sections 41(8) and (9) of the Medical Practices Act state that the Board shall have the authority to impose disciplinary or corrective measures on a board-regulated practitioner for

  • (8) Being guilty of immoral or unprofessional conduct. Unprofessional conduct shall include departure from or failing to conform to an ethical or quality standard of the profession. In proceedings based on this paragraph, actual injury to a patient need not be established.
    • (i) The ethical standards of a profession are those ethical tenets which are embraced by the professional community in this Commonwealth.
    • (ii) A practitioner departs from, or fails to conform to, a quality standard of the profession when the practitioner provides a medical service at a level beneath the accepted standard of care. The board may promulgate regulations which define the accepted standard of care. In the event the board has not promulgated an applicable regulation, the accepted standard of care for a practitioner is that which would be normally exercised by the average professional of the same kind in this Commonwealth under the circumstances, including locality and whether the practitioner is or purports to be a specialist in the area.
  • (9) Acting in such manner as to present an immediate and clear danger to public health or safety.  63 P.S. § 422.41 (8) and (9).

The Boards and the courts consistently determine that having sexual intimacies with clients breaches ethical standards, standards of care, and constitutes immoral or unprofessional conduct.   “Unprofessional conduct” includes “those breaches of trust, confidence and reliance, necessarily attendant upon the intimate relationship of physician and patient, which amount to gross abuses of the standards of professional conduct generally recognized as essential to the proper practice of medicine and surgery.”  As well, the specific regulations above clearly state that it is of no consequence that intimacies occur either before or after a terminated client relationship.  Importantly,

the professional who, during course of therapeutic relationship, engages in sexual intimacies with client may not absolve himself or herself from professional liability by ceasing to provide therapy while sexual relationship continues, or billing for services and masquerading the sex as a therapy. 49 Pa. Code § 41.61. Giddings v. State Bd. of Psychology, 669 A.2d 431 (Pa. Commw. Ct. 1995).
Call me to discuss your legal issues.
 

 

Alcohol Use Disorder and Self-Help Remedies — Licensees Be Careful

My blog topics sometimes originate from media outlets  discussing issues that impact my professional clients. NPR published an article this week discussing a new National Institute of Health (“NIH”) alcohol use disorder online self- help tool.  The attached link presents a significant web presence on alcohol consumption, alcohol use disorders, and other NIH discussion pieces on a national alcohol abuse epidemic. NPR, NIH Alcohol Use Disorder Article

The website reveals a national problem with alcohol consumption and provides a means for self diagnosis of one’s alcohol use disorder (“AUD”) through a DSM questionnaire.  In prior blogs I discuss the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) as the tool mental health professionals utilize to diagnose mental health conditions.  An Alcohol Use Disorder is one such identified mental health disease.  The DSM-V, the latest and current version, identifies any person meeting two of the following 11 criteria during a 12 month period as suffering from an alcohol use disorder.

  • Had times when you ended up drinking more, or longer than you intended?
  • More than once wanted to cut down or stop drinking, or tried to, but couldn’t?
  • Spent a lot of time drinking? Or being sick or getting over the aftereffects?
  • Experienced craving — a strong need, or urge, to drink?
  • Found that drinking — or being sick from drinking — often interfered with taking care of your home or family? Or caused job troubles? Or school problems?
  • Continued to drink even though it was causing trouble with your family or friends?
  • Given up or cut back on activities that were important or interesting to you, or gave you pleasure, in order to drink?
  • More than once gotten into situations while or after drinking that increased your chances of getting hurt (such as driving, swimming, using machinery, walking in a dangerous area, or having unsafe sex)?
  • Continued to drink even though it was making you feel depressed or anxious or adding to another health problem? Or after having had a memory blackout?
  • Had to drink much more than you once did to get the effect you want? Or found that your usual number of drinks had much less effect than before?
  • Found that when the effects of alcohol were wearing off, you had withdrawal symptoms, such as trouble sleeping, shakiness, irritability, anxiety, depression, restlessness, nausea, or sweating? Or sensed things that were not there?

As an an attorney representing medical or other licensed professionals possibly suffering from AUD, or other DSM-V criteria disorders, you’re wondering why I’m writing this blog.  The NIH web page, marketing campaign, and DSM assessment tool are very helpful for life correcting and treatment of a medical condition.

However,  licensed professionals should not seek treatment as a result of a self-help assessment in an on-line article, not conducted by a professional.  Such an endeavor could create significant potential professional license exposure. Obviously your health is a paramount concern.  Seek help if you need it.  But before doing so, understand there could be significant legal and professional ramifications.

Licensed professionals who self diagnose themselves and then seek drug and alcohol treatment through any number or type of treatment facilities opens a Pandora’s box of medical records and mental health disclosure issues and potential employment and license reporting responsibilities.   The wrong treatment facility could seek employment related information. Thereafter, under various state and federal regulations, these drug or alcohol treatment facilities (whom the licensee sought for help and stress reduction) become mandatory reporters to state professional licensing boards – causing huge stress. This creates the scenario where someone seeks inpatient treatment and the treatment provider reports a person’s drug or alcohol use to their professional licensing board. This exposes the professional licensee to a disciplinary process.

Self disclosure to any drug or alcohol treatment facility becomes a medical record subject to mandatory disclosure to a licensing board if a petition for a Mental and Physical Evaluation is ordered. By this I mean, once a treating facility reports a licensed professional as suffering from a drug or alcohol use disorder (without any type of criminal or workplace related event), the licensee’s words become the basis for disciplinary action.  Petitions to Compel Mental and Physical Evaluations require disclosure of the medical records from the self-help treatment facility.  The licensee’s words become the proverbial nail in the coffin of any disciplinary action.

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Before you proceed through an NIH or other self-help drug and alcohol use disorder assessment and then contact an inpatient treatment provider (which really just wants your money) please call to discuss the legal ramifications of your need for medical care. While your health and welfare are paramount, take into consideration the broader range of factors, including the status of your ability to work, maintain gainful employment, and practice your profession.  If your life is already full or stress (from family, marriage, work,  finances, and life), causing professional downfall, legal fees, or disciplinary action will just add to the current stress level. Eliminating additional stress is a huge factor in maintaining sobriety, maintaining confidence, and psychological stability.

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