CHRIA – Expungements, Convictions, License Applications

The Pennsylvania’s Criminal History Record Information Act (CHRIA) 18 Pa.C.S.A. § 9124 controls how public and private entities use Pennsylvania criminal arrest and conviction records. CHRIA controls how Pennsylvania’s licensing boards may use prior criminal convictions in application and disciplinary matters. CHRIA also governs Pennsylvania’s expungement process. CHRIA allows private lawsuits for illegal dissemination of expunged criminal histories. Two recent developments involving CHRIA are noteworthy.

On May 22, 2019 House Bill 1477 of 2019 was introduced in the Pennsylvania Generally Assembly. This bill seeks to amend section 9124(a) of CHRIA. The amendment seeks to limit Pennsylvania licensing board’s ability to refuse, grant, renew, suspend or revoke any license, certificate, registration, or permit based upon a criminal conviction that does not relate to the applicant’s suitability for such license. This is huge. No longer will a conviction be an automatic bar to licensure.

If a felony or misdemeanor conviction does relate to the trade, occupation or profession for which the license, certificate, registration or permit is sought, the applicant is now permitted to establish sufficient mitigation, rehabilitation, and fitness to perform the duties of the trade. This precludes any automatic application license rejection or disqualification.

The amendment, if adopted into law, will allow applicants to rebut any adverse presumption and show rehabilitation. The Boards must consider the criminal act, nature of the offense, age, maturity since the date of conviction, any prior criminal history, or lack thereof, length of current employment, participation in education and training, and other employment and character references. This clean slate provision allows for applicants with a criminal history record to petition the board for a preliminary decision of whether a prior criminal record would disqualify the individual from receiving the licensure.

On a separate front, on May 28, 2019 a federal jury determined damages against Bucks County for its 2011 online inmate look-up service. In 2016 a federal judge ruled the on-line service will illegal, violating the 2011 version of CHRIA. The jury verdict focused on the damages Bucks County’s CHRIA violation caused. Between 1998 and 2011 the on-line look up tool produced criminal histories of approximately 67,000 inmates. However, many of these inmate’s criminal cases were dismissed and expunged. The federal judge found that Bucks County was disseminating criminal histories of individuals whose criminal records were expunged. The jury awarded $1000 in damages to each inmate whose information was improperly disseminated on the website. The total jury award was $67 million.

This is an important case. It reflects a governmental body acting intentional and deliberate in violating Pennsylvania residents’ privacy rights. Bucks County was determined to be not following Pennsylvania law. Its conduct was determined to be willful and in reckless disregard and in different to the inmates’ privacy rights.

This case and the Clean Slate public policy prerogatives reflect the economic changes in the air. Economic equality starts with criminal expungements and privacy rights. Full and fair employment opportunities provide financial security and stabilize our community. When people are able to get jobs, secure professional licenses, and become more productive members of society, domestic violence is reduced, crime is reduced, drug use is reduced, self-worth is increased and family values and protection of our children is increased. Call to discuss your health care related license application.

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Pennsylvania Attorneys and their Disciplinary Process

My licensure defense practice includes representing attorneys facing disciplinary process in Pennsylvania. Attorneys licensed by the Pennsylvania Supreme Court – whether practicing in Pennsylvania or not – are subject to discipline the same as other Pennsylvania licensees. Criminal conduct and egregious unethical conduct expose attorneys to prosecution for violating the Rules of Professional Conduct.

Attorney discipline in Pennsylvania’s attorney regulatory system is more complex that other licensees. The Disciplinary Board of the Supreme Court of Pennsylvania is the court in the Supreme Court in which disciplinary actions are filed. The Pennsylvania Rules of Professional Conduct govern the practice of law in the Commonwealth. These Rules set forth the minimum ethical standards for the practice of law and constitute a set of Rules that all attorneys must follow. These Rules were originally promulgated by the Supreme Court of Pennsylvania on April 1, 1988.

The Pennsylvania Rules of Disciplinary Enforcement is the administrative process through which Supreme Court disciplinary actions are filed, hearings, held and appeals prosecuted. These Rules establish the attorney disciplinary system in Pennsylvania and set forth a broad set of procedural Rules governing attorney discipline. These rules were originally adopted by the Supreme Court in November 1972.

Disciplinary Board Rules and Procedures supplement and implement the Rules of Disciplinary Enforcement, and govern proceedings before the Disciplinary Board. These Rules are promulgated by the Disciplinary Board. This is the main difference between attorney disciplinary matters and other licensed professionals. Where the Bureau of Professional and Occupational Affairs (BPOA) handles all other licensee discipline, the Pennsylvania Supreme Court supervises and disciplines attorneys.

Almost all other aspects of attorney disciplinary matters are similar to that of other licensees. The supreme court issues orders of prosecution to which attorneys must respond to the Prothonotary with all official filings. Disciplinary board council must be copied on all pleadings filed with the court.

Criminal convictions, not arrests, trigger Supreme court investigations and disciplinary action. Routinely Board prosecutors emergently file Orders to Show Cause to suspend attorneys license to practice law. There are much shorter time periods for attorneys to respond to disciplinary filings.

Orders to show cause why in attorney’s license should not be suspended for a criminal conviction in either of the Commonwealth of Pennsylvania, federal court, or any other jurisdiction must be immediately addressed. Lack of extra jurisdiction disciplinary prosecutions will not forestall the Pennsylvania Supreme Court from commencing it’s own independent disciplinary action.

Learning about and cooperating with prosecutors from the Pennsylvania Disciplinary Board is important. Typically these attorneys are former prosecutors and, as attorneys themselves, seek to protect the profession from attorneys who engage in unethical and illegal conduct.
Theft of client funds and improper use of attorney trust account money will always trigger emergent prosecutions. Impairment prosecutions against attorneys caught using drugs, driving under the influence, or even showing up in court impaired are real, frequent, and as rampant as other professionals. Attorneys also suffer from mental health issues, diagnosed or not, that may begin to greatly affect their practice, bleed over into their practice of law. Untreated mental health issues, illnesses, drug abuse, or alcoholism always translate into client complaints.

If you are an attorney in the Commonwealth of Pennsylvania please call me to discuss your potential or pending attorney disciplinary action.

Disorderly Conduct — Moral Turpitude — Commonwealth Court Decides

Today the Commonwealth Court issues another remarkable decision involving a Pennsylvania medical professional.  Dunagan v. BPOA, 2019 WL 155879, is the third case in a row in which a Commonwealth Court panel has found a Pennsylvania medical related board engaged in an erroneous interpretation of the law and abuses its discretion.
In 2015, Dunagan was arrested and charged with three Drug Act violations and one Disorderly Conduct offense.  The charges stem from a police investigation that revealed Dunagan possessed a small amount of drugs and drug contraband.  The Disorderly Conduct offense is based upon Dunagan’s behavior during the search warrant execution. Dunagan’s criminal defense attorney negotiated dismissal of the Drug Act offenses and a guilty plea to the Disorderly Conduct offense.  This is a great legal tactic.  A medical professional who pleads guilty to a Drug Act violation is subject to an automatic one year license suspension and forced PHMP/DMU enrollment.  Dunagan’s plea avoided this result.

 

Dunagan properly reported her arrest to the BPOA.  Observing Drug Act offenses, a Nursing Board prosecutor filed an Order to Show seeking discipline Dunagan for her misdemeanor Disorderly Conduct guilty plea.  Ordinarily, Disorderly Conduct – charged either as summary offense or a misdemeanor –  is not a trigger for disciplinary action.  However, the Board prosecutor, with the support of his supervisors as a policy decision, subversively sought to discipline Dunagan for her drug related criminal conduct – not really the Disorderly Conduct offense to which she plead guilty.  This is outrageous.
Before the hearing examiner and Nursing Board, the prosecutor argues discipline should be based all facts of the criminal charges, not just the Disorderly Conduct behavior.  This is more facts than those essential elements of the Disorderly Conduct offense.  The prosecutor also maintains the facts giving rise to Dunagan’s guilty plea constitutes “a crime of moral turpitude” to which the Board may exercise its discretion and discipline Dunagan as it wishes.

 

The Hearing Examiner, rejecting this position, rules Disorderly Conduct is not a crime of moral turpitude and dismisses the Order to Show Cause.  The Board rejects the Hearing Officer’s Proposed Adjudication, finding Dunagan’s tumultuous behavior in the execution of a search warrant is a crime of moral turpitude.  The Board suspends Dunagan’s license for six months.

 

Obviously the decision is based upon the drug offenses that were dismissed and to which the Board could NOT force Dungan into the DMU/PHMP or automatically suspend her license under the Drug Act and CHIRA.
Dunagan appeals.  The Commonwealth Court reverses the Nursing Board decision.   The appellate court reviews much case law and facts and concludes Dunagan’s conduct resulting in a Disorderly Conduct guilty plea cannot and does not constitute moral turpitude.  The Court states

 

“A determination of whether a crime involves moral turpitude will be determined based solely upon the elements of the crime. The underlying facts or details of an individual criminal charge, indictment or conviction are not relevant to the issue of moral turpitude.” 22 Pa. Code § 237.9(b); see also Startzel v. Department of Education, 562 A.2d 1005, 1007 (Pa. Cmwlth. 1989) (“Determination of whether a crime involves moral turpitude turns on the elements of the crime, not on an independent examination of the details of the behavior underlying the crime.”).

 

The Court rules a six month professional license suspension is 1) an abuse of discretion, 2) a guilty plea to a Disorderly Conduct offense is neither a crime of moral turpitude nor a basis to suspend or revoke a professional licensees license, and 3) citing her need to earn a living and work – that the case facts are not health related  — there is no justifiable necessity to protect the public from her conduct.
This case reveals the extreme prosecutorial environment in which all Pennsylvania licensees now practice. Medical marijuana is the prime influencer of this case. Many Drug Act possessory offenses result in either original charges of Disorderly Conduct or evolve into a guilty plea to a Disorderly Conduct offense. A summary Disorderly Conduct offense is not a conviction under the Drug Act. As a result, Pennsylvania’s health related boards are not able to automatically suspend a license or commence disciplinary process predicated on a drug possessory offense.

 

BPOA prosecutors tried to secure Commonwealth Court case law stating a summary offense, whether a crime of moral turpitude or not, is a valid discretionary basis to suspend and discipline a medical related board licensees license.  The Commonwealth Court said no.
More importantly, at the Board hearing the attorney did not properly protect the record. I have written that factual allegations contained in an Order to Show Cause can only be those related to the criminal convicted charges, not allegations that are dropped or dismissed. Facts related to  dismissed, withdrawn, or not guilty charges are not relevant or admissible in any disciplinary prosecution.
This attorney did not object to a whole set of irrelevant and inadmissible facts.  Or the licensee simply testified about everything that happened on the date and time of her arrest. This placed those facts in the record for the Nursing Board to consider. It did consider the entire case facts, knew the case was about drugs, and suspended her license.  Both the legal strategy and Board conduct was improper. Call me to discuss your case.

Disclosing a Criminal Conviction on a Licensure Application — Part 2

In my last blog I wrote about real estate applicant who failed to disclose on his Real Estate Commission application a criminal conviction. Upon discovery the Commission revoked his license and the Commonwealth Court approved of the action. Today’s blog involves the exact opposite result for one of my physician clients.

On October 14, 2014 Dr. Christopher Elder, a Texas licensed physician, submitted an application to Pennsylvania’s Medical Board for a license to practice medicine and surgery. Unlike Hawes, Elder disclosed a 2010 federal conviction for aiding in abetting and conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. On April 2, 2015 the Pennsylvania Medical Board provisionally denied Elder’s application. The Board maintained the Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), authorized licensure denial because of Elder’s felony conviction. The Board also denied licensure, maintaining Elder lacked good moral character and did not possess the requisite training and experience.

Elder appealed the conditional denial of licensure. At the hearing before a the Hearing Officer Elder presented his credentials, training and experience, the facts of the criminal case, and character evidence. Consistent with prior Pennsylvania Supreme Court precedent, Elder maintained the criminal conviction was too remote for the Board to determine such affected his current ability to do his job lawfully. Elder’s mitigating evidence established his minor role in the criminal case and his rehabilitation since release from prison.

The Hearing Officer weighed Elder’s witness’ credibility and Elder’s mitigating evidence. He ruled in Elder’s favor, stating that while Elder’s criminal conduct demonstrated moral turpitude at the time of its commission, Elder presented persuasive evidence of his rehabilitation and present moral fitness to practice medicine. A period of probation was required to allow Elder the ability to secure appropriate supplemental educational classes for competency.

The Medical Board rejected the Hearing Officer’s proposed adjudication. The Board determined Elder’s explanation of his crime displayed a lack of remorse and acceptance of responsibility, that Elder still lacked the moral turpitude to be a doctor in Pennsylvania, and lacked the educational qualifications. Elder appealed, maintaining the Board’s decision was arbitrary and capricious in light of the competent, uncontested character evidence and age of the criminal act.

Commonwealth Court agreed with Elder. For the second time in as many months, the Court took a Pennsylvania licensing board out to the wood shed and gave it a stern whipping. The Court emphasized that Boards must look at the age of the crime as it related to current fitness. Remote, past dereliction, must be considered where an agency seeks to revoke a professional license on the basis of a criminal conviction. Secretary of Revenue v. John’s Vending Corporation, 453 Pa. 488, 309 A.2d 358 (1973).

The Court explained that “where the prior convictions do not in anyway reflect upon the [applicant’s] present ability to properly discharge the responsibilities required by the position, we hold that the convictions cannot provide a basis for the revocation of a … license.”

For Elder I determined he must present a clear explanation of the criminal enterprise accompanied by extensive mitigating evidence. The Board was dismissive of Elder’s mitigating evidence, stating that “[r]ather than to take responsibility and express remorse for his criminal misconduct during his testimony, [Elder] attempted to minimize his role.” Elder responded that such did not minimize his criminal conduct but explained his role in the underlying conspiracy, which the Board misconstrued as a collateral attack on his conviction. Elder directs the Court to Nguyen v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 53 A.3d 100 (Pa. Cmwlth. 2012).

The Commonwealth Court reviewed the entire record, the Federal Court sentencing transcript, the 8th Circuit Court of Appeals decision, and each witness’ testimony of Elder’s character and rehabilitation. The Court emphatically states:

The record does not support the Board’s assertion that Elder failed to express remorse or to take responsibility for his criminal conduct. At the hearing, Elder stated that he was “really” and “deeply” remorseful and he “absolutely accept[s]” responsibility.” He presented witnesses to attest to his remorse. The Board did not explain how this testimony was inadequate or what else Elder could have said. Elder’s attempt to place his criminal conduct into context and explain his role in the conspiracy does not demonstrate a lack of remorse or rehabilitation, as the Board presumed. The Board simply made a subjective determination that was contrary to that of the Hearing Examiner, who directly observed Elder and his witnesses, and accepted his evidence on remorse.

We hold that the Board erred and abused its discretion in reaching the conclusion that Elder does not have the present moral character required for a license. Elder’s crimes were committed over 14 years ago and were isolated to a single episode in his life. He has served his sentence. The Board erred by categorizing Elder’s evidence as not accepting responsibility when he was simply explaining his role in the conspiracy. The Board’s conclusion on Elder’s moral character cannot be reconciled with John’s Vending, 453 Pa. 488, 309 A.2d 358, or Nguyen, 53 A.3d 100. It did not take into account its own findings that Elder’s conduct since 2004 has been not only free of criminal conduct but dedicated to significant volunteer and public service activities.

In reversing the Board and instructing it to grant licensure, the Commonwealth Court determined the Medical Board sanction was a “manifest and flagrant abuse of discretion and purely an arbitrary execution of the agency’s duties or functions.” This is an amazing Commonwealth Court conclusion. Elder disclosed his federal criminal conviction for conspiracy to illegally distribute drugs. Elder set forth his long road to redemption, of rehabilitation, and his true character. The Court, a court of law, not the quasi-legal self-protecting Medical Board, looked at the facts – which mattered — and granted licensure.

Long hard preparation of this case won the day. My methodical approach to making a clear record of personal character recovery, redemption, and rehabilitation, could not be ignored. This cases reveals that proper presentation, preservation of the record, and coordination of witness is paramount to success. Call me to discuss your case.

Immediate Temporary Suspension — Are Temporary for 180 Days Only

Board prosecutors file a petition called an Immediate Temporary Suspension (“ITS”) petition that allows licensing boards to temporarily and immediately suspend licensees’ ability to practice their profession.  These petitions are typically reserved against licensee involved in a Drug Act investigation or sexual assault case.  The ITS suspension lasts, at the most, for 180 days.
The ITS petition must be followed up with a preliminary hearing to address the probable cause alleged in the petition.  A hearing must be scheduled and conducted within 30 days from the date of issuance of the suspension order. These preliminary hearings are limited to evidence on the issue of whether it is more likely than not a licensee engaged in any type of inappropriate criminal behavior supporting a temporary but emergent, suspension. Licensees are entitled to be present at the preliminary hearing, with or without an attorney, cross-examine witnesses, inspect evidence, call witnesses, and offer evidence and testimony.
If the hearing examiner does not find the prosecutor met their burden of proof, the licensee’s license and other authorizations to practice are immediately restored. If the prosecutor met their burden of proof, the temporary suspension remains in effect until vacated, but in no event longer than 180 days, unless otherwise ordered or agreed.
Orders for temporary suspension cases still require prosecutors to commence a separate disciplinary action seeking to suspend, revoke or otherwise restrict a licensee.  This separate action is filed through of a charging document known as an Order to Show Cause (“OSC”). In the OSC, facts are not limited to those alleged in the ITS petition.  The order to show cause is typically filed within the 180 day time, while the immediate temporary suspension is pending.
If a prosecutor does not file any disciplinary action after 180 days, the licensee is able to file a petition for the administrative reinstatement of the license. There is no hearing required and the board shall reinstate the licensee’s license. License reinstatement will issue even if there is a pending disciplinary action.

The post-180 day period is the time after which licenses can get their license back pending disciplinary action. I am currently handling several ITS cases with disciplinary action pending and not pending.  In one case disciplinary action was not filed for over a year. The licensee did not file a petition to reinstate her license and did not engage in the practice of her profession. This was a foolish mistake because absent disciplinary action, her license was subject to reinstatement without restriction after 180 days.  A little bit of research and hiring counsel would have properly notified the licensee of the lack of basis to continue her suspension.

License reinstatement is independent of any criminal prosecution or terms of a criminal sentence. Criminal prosecution can not include in a guilty plea agreement provisions that preclude a licensee from practicing your profession.  Call me to discuss your case.

A Good Lawyer is Money Well Spent – Protect Your License

A February 28, 2019 Commonwealth Court issued a decision reversing a Pennsylvania Medical Board order reprimanding a physician. The order reprimanding the physician stems from a medical malpractice case.  The patient died and the Medical Board accused the physician of practicing below the standard of care. The physician objected to the public reprimand placed on his license. The Commonwealth Court agreed, striking the discipline.
The Court concluded the physician’s objections at the hearing to certain evidence were proper.  The hearing officer and Medical Board should not have relied on inadmissible evidence when disciplining the physician. The evidence is hearsay statements in the form of a hospital-based peer review evaluation of the surgical procedure in which the patient died.  At the hearing, before the Medical Board, and on appeal the prosecutors argued the peer-review report was admissible. The doctor objected as he was not permitted to cross examine the report’s author at the hearing or before the medical board.
Both the Board and the doctor agreed the peer review is hearsay — a statement that ‘(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.’ In administrative hearings, the rules of evidence are relaxed and “all relevant evidence of reasonably probative value may be received.” 2 Pa. C.S. § 505.
With regard to the use of hearsay in administrative proceedings, it has long been established as follows:  (1) Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding of the Board[;] (2) Hearsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding  of the Board, if it is corroborated by any competent evidence in the record, but a finding of fact based [s]olely on hearsay will not stand. This is known as the “Walker rule.”
The prosecutors tried to argue the peer review report was a standard medical record upon which experts ordinarily rely in rendering their opinions and conclusions. This is a very standard practice in medical malpractice and other civil litigation cases in which experts are involved. Experts are allowed to review medical records that contain hearsay statements upon which their expert opinions and reports may be based. Through appropriate cross-examination with experience trial counsel before the hearing officer, the physician established that the board expert did not review, read, or rely upon the peer review report to base his conclusion.
The Commonwealth Court ruled the prosecutor did not satisfy the evidentiary predicates allowing the medical board to consider the peer review report as admissible hearsay. Stated another way, the physician had a good attorney who protected the physician at the hearing and the prosecuting attorney messed up.
The prosecutor tried to argue the Peer Review Officers were unavailable witnesses.  The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:  (1) Former Testimony. Testimony that:  (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had–or, in a civil case, whose predecessor in interest had–an opportunity and similar motive to develop it by direct, cross-, or redirect examination. PA. R.E. 804(b)(1) (emphasis added).
The former testimony exception applies when the declarant is unavailable. The Board acknowledged this limitation in its adjudication but dismissed the “unavailability of a declarant” requirement as serving “no useful purpose in an administrative proceeding where the objective is to adjudicate issues in an expeditious  manner.”  The lapse of six years between the incident and the Board’s adjudication belies this rationalization. The record offers no support for the position that any of the witnesses who appeared in the peer review hearing were unavailable to testify at the Board hearing or to provide a deposition.
The prosecutors then tried to argue the peer review report was a business record. The prosecutors did not properly lay the foundation to allow the hearing officer or medical board to consider the peer review report as a formal business record. For a record to be “certified” requires the custodian of the records to sign a certification before a notary public. 42 Pa. C.S. § 6152(d). 10 Assuming, arguendo, that the Peer Review Transcript is a “medical chart” or a “medical record,” it lacks a certification from the custodian of records for the hospital. Because the Peer Review Transcript was not authenticated or certified, it does not pass the threshold for having a document admitted under 42 Pa. C.S. § 6151.
This is a great case affirming a fundamental part of my professional licensing advocacy. Every licensee should have competent counsel both who knows the administrative regulations, procedures, and has been a civil or criminal litigating attorney who is fully competent and versed in the Pennsylvania Rules of Evidence. Counsel that stipulates or does not object to certain evidence coming into these licensing hearing is engaging in malpractice. They are not properly representing their licensee client to the fullest extent of the law. Even minor admissions or stipulations of certain evidence could become the linchpin upon which a hearing officer, licensing board, or the Commonwealth Court will rely to allow discipline.
In hiring counsel, licensees must make sure the attorney is experienced in both trying cases, the rules of evidence, and the licensing board regulations. This trial and appellate attorney who handled Dr. Ives his case did a great job. Congratulations. Call me to discuss your case and let me protect your license.

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

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

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

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

Getting out of the PHMP

How do you get out of Pennsylvania’s Professional Health Monitoring Program (“PHMP”). The PHMP administers both the Voluntary Recovery Program “VRP” and the Disciplinary Monitoring Program (“DMU”)? As a licensed professional voluntarily enrolled in the PHMP – VRP – or forced into the DMU, you agreed to PHMP terms to keep working. You have been compliant for over three years. Now you think the program time is up!

But what you think is “compliant” may not be what your PHMP case worker thinks is compliant. Compliance does mean no positive drug tests and attendance and proper participation in all medical evaluations. Compliance includes AA or NA weekly meeting, daily telephone call-in, and/or random drug testing for at least three-years. Also, it is mandatory to provide three years or more of employer quarterly work evaluations.

Compliance also means alcohol and drug free for: 1) the first 3-6 months before the licensing board formally enters the Consent Agreement. This is the time period after signing the contract and filing out the personal data sheet when you accepted VRP DMU terms. Case workers do not tell you that it will take 3-6 months for a board to approve the contract. Also, they do not tell you to stop the drug testing after three years in the PHMP. They do not tell you when the three years clock starts to run.

There is one more requirement that is the most important part of compliance; paying all associated costs of the program. Many professionals ignore or forget to pay these expenses. Unless paid, the PHMP term will not end.

Recently I have fielded several calls from PHMP participants who have satisfied all of the above compliance requirements but did not finish paying 100% of the PHMP program costs. Each thought they were “done the program”. Licensees even receive eligibility letters from their PHMP case worker suggesting that they are poised to be satisfactorily dismissed in thirty days from the PHMP.

That thirty day period ran out with no case worker activity. Then, a positive alcohol test is claimed. Case workers then argued the licensee violated the program and requested a 12-18 month extension. These licensees were super angry.

Because a licensee did not pay the monetary expense, PHMP case workers do not file the termination petition with the board administrator. It is only this form, and only filed by the PHMP case worker, that will allow a board to terminate the licensee from the PHMP and reinstate the license to non-probationary status. Case workers continue to expect drug testing and abstinence. Licensees must remain compliant until the board discharges them from the program. This includes drug testing phone calls, testing, travel requirements, medical records, and employment restrictions.

An extension of a PHMP agreement after it natural conclusion, solely because a license failed to pay the costs is an abusive practice. It is an example of the PNAP Trap of which I write extensively. Don’t let PHMP PNAP/SARPH/PHP pencil pushing caseworkers harass you and your professional career merely because you didn’t pay program costs. After 3 to 4 years of continued employment, maintaining financial responsibility should be much easier. You should fit this expense in your budget and pay monthly PHMP costs so that when you are eligible for termination from the program, PHMP caseworkers can not subject you any more torture. Call me to discuss.

Petitions to Suspend a Professional License While on Probation

A Petition for Appropriate Relief (“PAR”) is a licensing board prosecution motion, presented to a licensing board committee, alleging an emergent need to suspend a licensee’s license.  PARs target licensees currently on PHMP disciplinary probation, whether a voluntary agreements and involuntary, licensing board order.  This is the TRAP I reference throughout my website, blogs, and PNAP Trap articles.

Licensees placed in the disciplinary monitoring unit (“DMU”) or the Voluntary Recovery Program (“VRP”) administered by the Professional Health Monitoring Program (“PHMP”) are subject to extensive board orders imposing mandatory drug or alcohol abstinence.  The bait and switch of provision in every PHMP agreement is that for a licensee to maintain or be re-licensed they agree to automatic license suspension if they violate the terms and conditions of PHMP probation.
The Petition for Appropriate Relief or PAR is the prosecutor’s mechanism advising the board of licensees’ probationary order violations. Immediate license suspension is the initial board remedy.  Thereafter, in order to secure licensure reinstatement, a licensee must file an answer to the PAR within 20 days.  If the licensee does not seek a hearing or continue to honor the terms and conditions of the probation, their license will be indefinitely suspension.

It is through the PAR  that board prosecutors apply a heavy-handed approach to compelling compliance with PHMP’s drug abstinence programs.  In agreeing to the DMU, VRP agreement administered through the PHMP agreement, the licensee consents to this automatic suspension process. Each licensee waves a pre-suspension due process hearing.
PHMP, PNAP, and PHP caseworkers can raise any number of issues in a PAR.  I have extensively written about the overbearing trap into which these programs invite licensees.  PHMP uses the carrot and stick approach to licensees who seek reinstatement of or continuance of licensure.  Missed or failed drug test is the number 1 basis for a PAR filing.  PHMP case worker allegations of positive drug tests are routinely wrong, false, mixed up.
Unfortunately, PHMP cases workers claim improper violations two years after licensee’s participation in the programs. Prosecutors, tasked with keeping their jobs and honoring their clients’ (PHMP – through their respective Board)  demands, follow instruction and file PARs for any number of suspicious reasons. Unfortunately, the challenges to address a PAR while a license is suspended are very limited. Typically, extensions agreements or time periods within the programs is the only result that is accepted in order to secure license reinstatement.  Call me to discuss your case.
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