Pennsylvania’s Professional License Disciplinary Environment

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

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

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

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

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

• 29 % resulted in suspension;

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

 

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

• 12.6% resulted in voluntary surrender of license;

• 12% resulted in revocation;

• 6.5% resulted in reprimands;

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

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

Call me to discuss your case.

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Fraud, Felony Conviction, and License Revocation

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

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

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

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

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

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

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

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

New Jersey’s Proposed Medical Marijuana Act Amendments

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

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.

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.

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.
 jerry-arrest-record-seinfeld1
Jerry’s career took off.  So should yours.

GARLIC — NOBODY LIKES IT — The Case of Robert Garlick, Penn DOT, a DUI Investigation, and a Blood Test Refusal

On July 17, 2017 Robert Garlick was operating his motor vehicle in Erie County Pennsylvania.  A state Trooper investigating his 1 car accident, suspected Mr. Garlick of being under the influence of alcohol.  Garlick was arrested for suspicion of DUI.  At the barracks the Trooper read verbatim the warnings contained in the July 2016 revised Penn DOT DL-26B form.  This form provides the following warnings with regard to a chemical test of blood:

1. You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code.

2. I am requesting that you submit to a chemical test of blood.

3. If you refuse to submit to the blood test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months.

4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to a blood test, you will have refused the test.

I and many other attorneys have argued that this language in this DL-26B form fails to comply with the statutory version of §1547(b)(2) in effect at the time; that these drivers are not advised that refusing the chemical test would result in enhanced criminal penalties (i.e. the penalties provided in Section 3804(c)) as § 1547(b) requires. While there is no statutory or other requirement that the DL-26 form contain appropriate warnings, or that the form be read verbatim, it is nonetheless the duty of the police officer to inform the petitioner of the statutorily required warnings. In other words, if the police officer recites the appropriate warnings from memory without the use of any form at all that is perfectly acceptable under the law.  In this case, however, the Trooper confirmed that the only warnings he provided were those contained on the DL-26B Form which he read verbatim. Those warnings are not consistent with the law.

The law in effect in July of 2016 was 75 Pa.C.S.A. § 1547.  Section 1547 of the Vehicle Code in effect on May 24, 2017, provides in pertinent part:

(a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath or blood for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police Officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle:

(1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance)….
* * *

(b) Suspension for refusal.—

(1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the [D]epartment shall suspend the operating privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
* * *
(2) It shall be the duty of the police Officer to inform the person that:

(i) the person’s operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties). 75 Pa. C.S. § 1547(a),(b).

On July 20, 2017, the governor approved Act 30 of 2017 which provides for an amendment to Section 1547(b)(2) removing the language requiring a police officer  to provide the warnings relating to enhanced criminal penalties for refusal. This amendment was not effective on the date of Garlick’s incident.  The fact that the legislature amended it is indicative of its acknowledgement that such an amendment was necessary to effectuate the change required of the warnings pursuant to Birchfield.

Drivers license attorneys and I argue PennDOT’s amended DL–26B form, created post-Birchfield, removes references to §3804 criminal penalties. This form is not consistent with the statutory framework of the motor vehicle code and not consistent with any legislative authority. Various courts have been confronted with post-Birchfield amended O’Connell warnings that do not contain the mandatory/ statutory language of § 1547(b)(2).  These cases do not address the illegality of the DL-26B form and the incorrect recitation of law to the motorists deemed refusing.

Mr. Garlick objected to amended DL 26B reading.  The Erie County Court of Common Pleas judge denied his legal argument.  On appeal to the Commonwealth Court affirmed the trial judge and found PennDOT correctly altered its DL-26B form after the Birchfield case.  As you recall, Birchfield v North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), and Commonwealth of Pennsylvania jurisprudence interpreting it hold that 75 Pa.C.S.A. §1547(b) and Pennsylvania’s enhanced criminal penalties for refusing a chemical blood test are unconstitutional.

The complex criminal versus civil application of Birchfield, is born out in the case of Boseman v. Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017), and Gray v. Commonwealth , Dep’t of Transportation, Bureau of Driver Licensing, No. 1759 C.D. 2016, 2017 WL 2536439, at *7–8 (Pa. Commw. Ct. June 9, 2017), reargument denied (Aug. 7, 2017). These cases maintain arresting officer’s statutory obligation to inform a motorist of the General Assembly’s defined § 1547(b)’s ramifications of a refusal – not PennDOT’s version.

Garlick v. PennDOT is the first case to decide the exact argument I have raised in several cases.  Garlick rejects, though without explanation, the argument that the PennDOT revised DL-26 form is illegal.  The court  opinion adopts much of my and other defense counsel’s reasoning that; “It is true, as Licensee argues, that the language contained in Section 1547(b)(2)(ii) was mandatory at the time Trooper requested that Licensee submit to a blood test. However, while Section 1547(b)(2)(ii) then “command[ed]” that a warning about enhanced criminal penalties be given the purpose behind that provision is to make a licensee aware “of the consequences of a refusal to take the test so that he can make a knowing and conscious choice.” Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 877 (Pa. 1989); see Commonwealth v. Myers, 164 A.3d 1162, 1171 n.12 (Pa. 2017) (plurality) (“purpose of [Section 1547(b)(2)] ‘is to entitle arrestees to the information necessary to assess the dire consequences they face if they fail to consent to chemical testing, to ensure their choice in that regard is knowing and conscious, as we described in O’Connell’”

However, the court proceeds to state “Given our review of the current state of the law, Licensee’s argument that his license must be reinstated because he was not warned that he would be subject to no longer constitutionally permissible enhanced criminal penalties for refusing blood testing is unpersuasive. Trooper specifically and accurately warned Licensee about the consequences of refusing a blood test that remain following Birchfield, that is, the suspension of his license. Therefore, common pleas did not err when it denied Licensee’s appeal.”

This conclusion ignores the realty of the legislative dictate that the law as written and authorized by the General Assembly is the only permitted and regally authorized language Penn DOT can read to licensees.  More appeal will follow because of this specious and ill-informed decision.

Still on the topic of refusals to submit to  a breath or blood test, a new bill introduced into the General assembly in 2018, Senate Bill 553, makes changes to the state’s DUI laws and will take effect Jan. 11.  Among them is a new fee for refusing to submit to a blood-alcohol test, after the U.S. Supreme Court ruled in 2016 that police can’t obtain blood samples without a warrant or consent.  Under the revised law, drivers who refuse a blood-alcohol test but are convicted and lose their license will have to pay a “restoration fee” for their license of up to $2,000 — $500 for the first time a test is refused, $1,000 for the second time and $2,000 for the third and each time after. The law requires officers to inform suspects of the costs when they’re pulled over.

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.
 

 

Disciplinary Action – Scope of Practice Certified Registered Nurse Practitioners

Certified Registered Nurse Practitioners (“CRNP”) can prescribe medication, examine patients, diagnose illnesses, and provide treatment, much like physicians do. In fact, nurse practitioners have what’s referred to as “full practice authority” in 20 states, meaning that they do not have to work under the supervision of a doctor. In the Pennsylvania, however, while CRNPs still have more authority than RNs, they must have a medical doctor sign on certain patient care decisions.

Nurse practitioners are increasingly becoming integral to medical teams as more and more hospitals and healthcare facilities are utilizing their expertise. Their experience as working nurses gives them a unique approach to patient care, while their advanced studies qualify them to take on additional duties that are usually left to physicians.

There are many different ways CRNP are exposed to practicing outside the scope of their practice.  Dispensing medications incorrectly or without a prescription is the first and foremost.  CRNPs are especially vulnerable to disciplinary action as they hold prescriptive authority to dispense Schedule II and other non-scheduled medications.  This blog will address CRNP’s legal duties.

CRNP’s must collaborate with a physician who holds a current license to practice in the Commonwealth.  When acting in collaboration with a physician in a “collaborative agreement” within the CRNP‘s specialty, the CRNP may perform comprehensive assessments of patients and establish medical diagnosis, perform and supervise diagnostic tests, institute referrals, develop treatment plans, establish prescriptive authority approvals for pharmaceutical treatments, complete admission and discharge summary’s, and order various supplemental therapeutic medical care. Supplemental medical care includes dietary plans, home health care and hospice, durable medical equipment, physical therapy and dietitian referrals, respiratory and occupational therapy referrals, and perform initial assessments of methadone treatment evaluations.

Methadone treatment and evaluations can be accomplished in conjunction with approval of a physician in the Pennsylvania methadone treatment regulations.  In this time of opioid crisis, CRNP’s prescribing methadone is a huge issue. CRNPs have sought clarification of their authority and qualifications to prescribe Suboxone.  63 PS § 21.283(c) of the Pennsylvania Code sets forth CRNP’s prescriptive authority.

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Every two years CRNP must complete 16 hours of board approved CE credits in pharmacology.  Initially, CRNPs require 45 hours of coursework specific to advanced pharmacology through the a professional nurse education program within five years before initial prescriptive authority approval. Board prescribing and dispensing schedule II restrictions include only 30-day supply authorizations and only in conjunction with a collaborative agreement setting forth such authorization by the physician in the agreement.

CRNP are limited to prescribing 90-day supplies of schedule III and IV controlled substances, which physician based authority is identified in the collaborative agreement. CRNP may not delegate prescriptive authority to other RNs working in the practice. CRNPs may not issue pre-signed prescriptions, must receive a national provider identifier number, and all prescriptions must include the CRNP’s name, title, and Pennsylvania CRNP certification number.  All labeling, packaging, dispensing, administering, and prescribing must be done in compliance with all other federal and state regulations and Pennsylvania Department of Health chapter 28 code of regulations.

CRNPs must register with the DEA and follow DEA minimum standards when prescribing, administering or dispensing controlled substances.  DEA federal regulations require the CRNP to properly conduct and documents their initial evaluation, physical examination, receipt and review the patient’s medical and medication history.  The physical evaluation includes examining the heart, lungs, vital signs, pain level, and body functions that relate to the patient specific complaint. Re-evaluation‘s and follow up should follow accordingly.

Patient counseling and medical records review are warranted to properly document symptoms observed and reported, diagnosis of any condition for which the controlled substance is being given, and the directions for administration. If the CRNP continues to prescribe the controlled substance, medical records must reflect changes to symptoms observed and reported and modification, alteration, or a limitation of any diagnosis of the condition for which the controlled substance is being given and the directions given to the patient.

The CRNP may dispense emergency, short-term prescriptions in conjunction with examination, evaluation, and proper diagnosis if such is then documented in the patient’s medical record.  Any emergency prescription must be delivered to the pharmacist within three days, and the emergency prescription may not be refilled or issued consecutive to an emergency prescription unless there is a follow-up physical examination.

Compliance with the terms and conditions of CRNP prescriptive authority is not necessarily compliance with Nursing Board scope of practice or standards that are acceptable and the prevailing practice.  Compliance with the above PA Code minimum standards does not restrict Nursing Board disciplinary action CRNPs based upon violations of the Drug Act or any other nursing licensing regulation.

Federal and State Drug Act issues address improper prescription dispensing, improper charting, failing to chart, or performing medical malpractice in the course of acting outside the scope as a CRNP.   Mere compliance with PA Code rudimentary medical practice and charting responsibilities and basic medical care giving duties does not shield the CRNPs from scope of practice and other claims.

CRNP scope of practice is governed by the collaborative agreement by and between the supervising physician and CRNP along with any large scale institutional employment job position limitations. Improperly administering medications earlier than the time set forth in a prescription and refilling daily, weekly, or 30 day prescriptions will well necessary trigger employment or board based disciplinary issues.

This is why the prescriptive authority established in the collaborative agreement between a physician and a CRNP  must satisfy very specific requirements. The collaborative agreements must be in writing, identifying the category of drugs this specific CRNP is allowed to prescribe as per their certified practice.   The collaborating physician obviously must sign the agreement and a copy must be submitted to the Bureau Professional and Occupational Affairs.

The agreement must be updated every two years, or whenever the agreement is changed, and must identify the professional liability insurance limits the physician’s policy provides.  Anytime the prescriptive authority in the collaborative agreement is updated or terminated, the CRNP (and no one else) shall notify the Board in writing of such changes. The CRNP is allowed to advertise or publicly display sign identifying their participation in a medical practice. A licensed CRNP may include such nomenclature after their name on any letterhead, business cards, and practice advertising.

CRNP must undertake and only engage in their specific practice area and only perform procedures in which they have necessary knowledge, preparation, experience and competency to properly execute.  CRNP practice is limited in scope to only their specialty and consistent with their CRNP collaborative agreement. This is the scope of practice provision that allows for the allegation CRNP prescribing medication drugs or other items outside the scope of their practice.

Certification as a CRNP may be suspended, revoked, or otherwise subjected to remedial measures when, after notice of and an opportunity for a hearing, the board finds that a CRNP has engaged and performed medical functions and tasks beyond the scope of practice permitted for a CRNP, that CRNP specially, or in violation of the collaborative agreement.  This is the general, catchall provision, for a potential penalty, based upon the allegation that a CRNP performed a medical function for which the CRNP does not have the necessary knowledge, preparation, experience and competency to perform properly or is not qualified under the CRNP Act.

Call me to discuss your case.

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