A Harsh Disciplinary Enforcement Environment for Pennsylvania Licensees

I write this blog in preparation for a Pennsylvania Nursing Board ordered Mental and Physical Examination (“MPE”) of a client.   It is startling the number of these board ordered evaluations or PHMP/PHP/PNAP assessments due to some type of licensee criminal conduct.  The heightened disciplinary activity among all boards reveals a much stricter atmosphere of licensee disciplinary enforcement.  Why?

Pennsylvania’s heightened disciplinary environment is based upon a single legislative occurrence and a single judicial decision.  Legislatively, passage of Pennsylvania’s medical marijuana regulatory scheme has prompted a review of all licensing laws in anticipation of increased licensee impairment and criminal activity due to marijuana usage (legal or not).

A prime example of this is Senate Bill 354 of 2017.  I wrote about this bill last week.  This bill seeks to compel any licensee charged with a crime (not convicted) to report such to their respective licensing board within 30 days of arrest.  Failure to report will constitute a separate basis for discipline.  This Bill seeks to bring the boards’ immediate knowledge of licensee’s criminal conduct so discipline can commence sooner.

Pennsylvania’s licensing boards subscribe to JNET – Pennsylvania’ criminal fingerprint data base.  The Boards already know of licensee’s criminal charges of which they already expect them to report upon conviction.  However, the Boards now want quicker reporting, with an additional and stronger basis for discipline.  False reporting and failing to report criminal conduct!!

But this bill is not not law.  So what’s the juice?  The juice is that current licensee’s facing disciplinary action for some really minor issues will think twice before smoking pot; they will tell their friends and co-workers to think twice before smoking pot and taking care of the public.  The health related boards are gearing up prosecutors for stricter supervision of all licensees.  In this conservative jurisdiction, pot is thought to be a gateway drug to heroin.  The prescription based opiate epidemic caught the health related boards with their pants down.  It will not happen again with the passage of medical marijuana.

The enforcement environment also extends to potential licensees enrolled in any health related school who apply for licensure with a criminal history of one or two DUI’s.  I represent many individuals whose licensure applications have been stalled based upon conditional denials and compelled PHMP enrollment.   A new regulation requiring  license applicants to be licensed within 12 months of taking their board examinations aides the Board in weeding out potential applicants who do not accept PHMP enrollment.

DO NOT go willy-nilly to the PHP/PHMP assessment and or evaluation with the expectation that you will pass and be given your license.  DO NOT answer the personal data sheet with out consulting an attorney.  DO NOT talk to the PHMP intake or assessors without attorney preparation.  They write everything down — your story of depression, injured or dead family members, your divorce, your child abuse history.  The PHMP people will always recommend enrollment in the VRP after you, the new licensee, admit your mental health treatment, drug use, and inability to practice safely.   How can you admit you can not practice safely if you have never practiced?  Applicants fighting their cases must be patient and call me ASAP. 

The Birchfield decision (written about in other blogs) is the judicial decision most affecting disciplinary actions.  Birchfield focused on the admissibility of blood alcohol levels as a result of a non-consensual blood draw in a DUI investigation. This case has rippled through every Pennsylvania county’s drunk driving enforcement efforts.  Birchfield ruled inadmissible DUI blood evidence that revealed drugs (illegal or prescription) and/or marijuana use.

Birchfield rendered blood drug use evidence an inappropriate basis for licensee disciplinary action.  The heightened reporting responsibilities of nurses (30 days from arrest), allow petitions for mental and physical evaluations based upon affidavits of probable cause reflecting alcohol or drug use even though blood evidence is not admissible in a court of law.  The Boards want to know right away what its licensees are smoking or drugs they are ingesting.

Pennsylvania licensees need to fight every criminal case. The new notice provisions in Bill 354 will become law.  While criminal charges are pending licensees will have to provide a potentially incriminating personal statement to a licensing board.  This is crazy.  There is no 5th Amendment right against self-incrimination in a professional license defense.  Licensees need an attorney to help draft counseled answers to strategic legal questions and statements under these circumstances.  Now, more than any time in the recent past, licensees should utilize counsel to properly protect their license.

The Boards use their experts to determine impairment.  Why shouldn’t you use your expert to protect your license?  Licensees face workplace challenges, complex life issues, and now a crazy enforcement environment in Pennsylvania.    Mail from the PHMP, PHP, and PNAP present multi- faceted traps for even the most experienced licensees.  Licensee need their own expert — an experienced criminal and administrative law attorney to effectively protect their license.  Call me to discuss your criminal or license case.

The Drug Act — Pa Doctors’ Reporting Responsibilities for Arrest, Conviction, and Automatic Suspensions

Every day I read appellate cases that review disciplinary decisions of Pennsylvania’s licensing boards. A recent case discusses physicians’ unique arrest and conviction reporting responsibility to the State Board of Medicine.  Physician’s reporting of arrests versus convictions depends on the crime involved.

Pennsylvania’s MCare’s law regarding malpractice insurance coverage, 40 P.S. § 1303. 903(4), identifies physician’s reporting responsibilities if a professional liability claim is asserted them, disciplinary action taken against them from another jurisdiction, criminal sentencing for any case, and the arrest of a physician in four very limited classes of crimes. These offenses are:

• following offenses in this Commonwealth or another state:
  • (i)  18 Pa.C.S. Ch. 25 (relating to criminal homicide);
  • (ii)  18 Pa.C.S. § 2702 (relating to aggravated assault); or
  • (iii)  18 Pa.C.S. Ch. 31 (relating to sexual offenses).
  • (iv)  A violation of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act.

Physicians’ limited reporting responsibilities means arrests for following offenses does not trigger reporting to the state: domestic violence offenses, DUI’s offenses, theft offenses, or a string of federal related non-drug criminal arrest offenses.   Physicians do have to report arrests alleging a sex offense, homicide, aggravated assault, and a violation under the Drug Act.

Understanding what offenses are Drug Act offenses, not just possession or selling drugs, under The Act that are important.  Drug Act charges include patient record keeping, charting issues, and properly recording and dispensing medications.  Section 780-111 of the Drug Act focuses  on professional prescription, administration, and dispensing of drugs.  Here, the Act states:

• (a)  Except when dispensed or administered directly to the patient by a practitioner or his authorized agent, other than a pharmacist, to an ultimate user, no controlled substance in Schedule II, may be dispensed without the written prescription of a practitioner, except in emergency situations, as prescribed by the secretary by regulation. No prescription for a controlled substance in Schedule II may be refilled.

• (b)  Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in Schedule III or IV, may be dispensed without a written or oral prescription. Such prescriptions shall not be filled or refilled more than six months after the date thereof or be refilled more than five times after the date of the prescription unless renewed by the practitioner.

• (c)  No controlled substance in Schedule V may be distributed or dispensed for other than a medicinal purpose.

• (d)  A practitioner may prescribe, administer, or dispense a controlled substance or other drug or device only (i) in good faith in the course of his professional practice, (ii) within the scope of the patient relationship, and (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession. A practitioner may cause a controlled substance, other drug or device or drug to be administered by a professional assistant under his direction and supervision.

• (d.1)  A practitioner shall not prescribe, administer or dispense any anabolic steroid for the purpose of enhancing a person’s performance in an exercise, sport or game. A practitioner may not prescribe, administer or dispense any anabolic steroid for the purpose of hormonal manipulation intended to increase muscle mass, strength or weight except when medically necessary.

• (e)  A veterinarian may prescribe, administer, or dispense a controlled substance, other drug or device only (i) in good faith in the course of his professional practice, and (ii) not for use by a human being. He may cause a controlled substance, other drug or device to be administered by a professional assistant under his direction and supervision.

• (f)  Any drug or device dispensed by a pharmacist pursuant to a prescription order shall bear a label showing (i) the name and address of the pharmacy and any registration number obtained pursuant to any applicable Federal laws, (ii) the name of the patient, or, if the patient is an animal, the name of the owner of the animal and the species of the animal, (iii) the name of the practitioner by whom the prescription order was written, and (iv) the serial number and date of filing of the prescription order. In addition, the following statement shall be required on the label of a controlled substance: “Transfer of this drug to anyone other than the patient for whom it was prescribed is illegal.”

§ 780-112 focuses on records of distribution of controlled substances

• (a)  Every person who sells or otherwise distributes controlled substances, shall keep records of all purchases or other receipt and sales or other distribution of such substances for two years from the date of purchase or sale. Such records shall include the name and address of the person from whom purchased or otherwise received or to whom sold or otherwise distributed, the date of purchase or receipt or sale or distribution, and the quantity involved: Provided, however, That this subsection shall not apply to a practitioner who dispenses controlled substances to his patients, unless the practitioner is regularly engaged in charging his patients, whether separately or together with charges for other professional services, for substances so dispensed.

• (b)  Every practitioner licensed by law to administer, dispense or distribute controlled substances shall keep a record of all such substances administered, dispensed or distributed by him, showing the amount administered, dispensed or distributed, the date, the name and address of the patient, and in the case of a veterinarian, the name and address of the owners of the animal to whom such substances are dispensed or distributed. Such record shall be kept for two years from the date of administering, dispensing or distributing such substance and shall be open for inspection by the proper authorities.

• (c)  Persons registered or licensed to manufacture or distribute or dispense a controlled substance, other drug or device under this act shall keep records and maintain inventories in conformity with the record-keeping, order form and inventory requirements of Federal law and with any additional regulations the secretary issues. Controlled substances in Schedules I and II shall be distributed by a registrant to another registrant only pursuant to an order form.

Violations of either of these two subsections and their itemized list, by either doctors or other health care nurses is dealt with under section § 780-123, revocation of licenses of practitioners.

• (a)  Any license or registration heretofore issued to any practitioner may either be revoked or suspended by the proper officers or boards having power to issue licenses or registration to any of the foregoing, upon proof that the licensee or registrant is a drug dependent person on the use of any controlled substance, after giving such licensee or registrant reasonable notice and opportunity to be heard.

• (b)  The appropriate licensing boards in the Department of State are hereby authorized to revoke or suspend the registration or license of any practitioner when such person has pleaded guilty or nolo contendere or has been convicted of a felony under this act or any similar State or Federal law. Before any such revocation or suspension, the licensee or registrant shall be given a hearing before the appropriate board. At such hearing the accused may be represented by counsel and shall be entitled to compulsory attendance of witnesses.

• (c)  The appropriate licensing boards in the Department of State shall automatically suspend, for a period not to exceed one year, the registration or license of any practitioner when the person has pleaded guilty or nolo contendere or has been convicted of a misdemeanor under this act. The district attorney of each county shall immediately notify the appropriate State licensing board of practitioners subject to the provisions of this section. However, the provisions of such automatic suspension may be stayed by the appropriate State licensing board in those cases where a practitioner has violated the provisions of this act only for the personal use of controlled substances by the practitioner and the practitioner participates in the impaired professional program approved by the appropriate State licensing board for a period of between three and five years, as directed by the appropriate licensing board. If the practitioner fails to comply in all respects with the standards of such a program, the appropriate licensing board shall immediately vacate the stay of the enforcement of the suspension provided for herein. Automatic suspension shall not be stayed pending any appeal of a conviction. Restoration of such license shall be made as in the case of a suspension of license.

35 Pa. Stat. Ann. § 780-123

Case law addressing practitioner’s objections to the emergent and disparate impact Drug Act convictions and their automatic suspensions have on doctors is very clear.   Board discretion and legislative prerogative regarding public safety out weight a physician’s property right in their license.  “Licensed medical practitioners’ unique access to controlled drugs and a physician’s appropriation of this access for illegal purposes presents a danger to the Commonwealth, for which the General Assembly has legitimately and rationally adopted a separate policing device.”  Call me to discuss your case.

Pennsylvania’s New Physician Licensing Compact

In November of 2015 I blogged about the proposed version of Pennsylvania’s Interstate Medical Licensure Compact Act.  One year later, effective October 26, 2016, the Act has become Law. What does this mean for Pennsylvania’s physicians?

The Interstate Medical Licensure Compact Act (the “Act”) only applies to “Physician”, a person who:
1. is a graduate of a medical school accredited by the Liaison Committee on Medical Education, the Commission on Osteopathic College Accreditation or a medical school listed in the International Medical Education Directory or its equivalent;
2. passed each component of the United States Medical Licensing Examination or the Comprehensive Osteopathic Medical Licensing Examination within three attempts or any of its predecessor examinations accepted by a state medical board as an equivalent examination for licensure purposes;
3. successfully completed graduate medical education approved by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association;
4. holds specialty certification or a time-unlimited specialty certificate recognized by the American Board of Medical Specialties or the American Osteopathic Association’s Bureau of Osteopathic Specialists;
5. possesses a full and unrestricted license to engage in the practice of medicine issued by a member board;
6. has never been convicted, received adjudication, deferred adjudication, community supervision or deferred disposition for any offense by a court of appropriate jurisdiction;
7. has never held a license authorizing the practice of medicine subjected to discipline by a licensing agency in a state, federal or foreign jurisdiction, excluding an action related to non-payment of fees related to a license;
8. has never had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration; and

9. is not under active investigation by a licensing agency or law enforcement authority in a state, federal or foreign jurisdiction.

Upon receipt of an application for an expedited license, the member board within the state selected as the state of principal license shall evaluate whether the physician is eligible for expedited licensure and issue a letter of qualification, verifying or denying the physician’s eligibility to the interstate commission. The following shall apply:
1. Static qualifications, which include verification of medical education, graduate medical education, results of any medical or licensing examination, and other qualifications as determined by the interstate commission through rule, shall not be subject to additional primary source verification where already primary source verified by the state of principal license.
2. The member board within the state selected as the state of principal license shall, in the course of verifying eligibility, perform a criminal background check of an applicant, including the use of the results of fingerprint or other biometric data checks compliant with the requirements of the Federal Bureau of Investigation, with the exception of federal employees who have suitability determination in accordance with 5 C.F.R. § 731.202 (relating to criteria for making suitability determinations).
3. Appeal on the determination of eligibility shall be made to the member state where the application was filed and shall be subject to the law of that state.

 

An important part of the Act is the joint investigation and disciplinary process. The law as enacted states:

ARTICLE IX JOINT INVESTIGATIONS
A. Licensure and disciplinary records of physicians are deemed investigative.
B. In addition to the authority granted to a member board by its respective Medical Practice Act or other applicable state law, a member board may participate with other member boards in joint investigations of physicians licensed by the member boards.
C. A subpoena issued by a member state shall be enforceable in other member states.
D. Member boards may share any investigative, litigation or compliance materials in furtherance of any joint or individual investigation initiated under the compact.
E. Any member state may investigate actual or alleged violations of the statutes authorizing the practice of medicine in any other member state in which a physician holds a license to practice medicine.
ARTICLE X DISCIPLINARY ACTIONS
A. Any disciplinary action taken by any member board against a physician licensed through the compact shall be deemed unprofessional conduct which may be subject to discipline by other member boards, in addition to any violation of the Medical Practice Act or regulations in that state.
B. If a license granted to a physician by the member board in the state of principal license is revoked, surrendered or relinquished in lieu of discipline, or suspended, then all licenses issued to the physician by member boards shall automatically be placed, without further action necessary by any member board, on the same status. If the member board in the state of principal license subsequently reinstates the physician’s license, a license issued to the physician by any other member board shall remain encumbered until that
respective member board takes action to reinstate the license in a manner consistent with the Medical Practice Act of that state.
C. If disciplinary action is taken against a physician by a member board not in the state of principal license, any other member board may deem the action conclusive as to matter of law and fact decided, and:
1. impose the same or lesser sanction(s) against the physician so long as such sanctions are consistent with the Medical Practice Act of that state; or
2. pursue separate disciplinary action against the physician under its respective Medical Practice Act regardless of the action taken in other member states.
D. If a license granted to a physician by a member board is revoked, surrendered or relinquished in lieu of discipline, or suspended, then any license(s) issued to the physician by any other member board(s) shall be suspended, automatically and immediately without further action necessary by the other member board(s), for ninety (90) days upon entry of the order by the disciplining board, to permit the member board(s) to
investigate the basis for the action under the Medical Practice Act of that state. A member board may terminate the automatic suspension of the license it issued prior to the completion of the ninety (90) day suspension period in a manner consistent with the Medical Practice Act of that state.

Any disciplinary action taken by the physician’s principle licensing board (their home state) shall, under House Bill 1619 of 2015, be deemed unprofessional conduct subject to discipline by other member boards in addition to any violation of the Medical Practices Act or regulations of the principle state. Revocation, suspension, or surrender of a license in lieu of discipline or suspension shall cause the physician’s license to suffer similar status by each and every member board to which that physician is licensed.

Conversely, however, any reinstatement of the physician’s license by his principal state medical board shall not affect the encumbered status of that physician’s license in other member states unless and until each member state takes individual action to reinstate my license. This provision allows each member board to conduct the practice of their medical board license disciplinary action independent of the Act. This process is different the current due process rules that require each state’s discipline of a multiple state licensed professional to be independent of, and not link to, any prior state’s discipline.

Any discipline action taken by the physician by a member board, not the principal license board, may be used by other member boards as a conclusive disciplinary action warranting imposition of the same or less or sanction or a separate disciplinary action by other member boards. As well, any license investigation by a member board that becomes the subject revocation, surrender or relinquishment in lieu of discipline shall cause the physician’s license to suffer the same consequences without any further action in each other member board without the subject to any disciplinary investigation. The physician truly becomes hostage to the initiating state’s disciplinary process and must fight it to the death so as to avoid any automatic domino effect.

The Act seeks to balance the states’ citizens’ need for medical care, a nation’s policy interest in granting access to high quality medical care to all citizens, and a physician’s ability to provide competent medical service regardless of artificial state borders against patient safety and criminally active doctors. The primary concern of the Act is who will become the disciplinary supervisor of doctors practicing throughout the country under the Act. While this is a serious and weighty issue, the Act in its current form fails to safeguard the medical license of Pennsylvania’s many doctors who will choose it as their primary state of licensure.

Pennsylvania’s medical schools have produced thousands of doctors over the years. Many secure initial graduate school training licenses and stay in the Commonwealth after residency to care for Pennsylvania’s residents. Many choose Pennsylvania as a home. The Act as drafted in House 1619 of 2015 will discourage this.

Physicians who seek to practice medicine in multiple states through the Act will sacrifice a significant degree of due process if any disciplinary investigation is commenced or levied against them. While there is significant financial interest to provide internet-based face time oriented medical practice across state borders without driving distances, to save lives, the inevitable due process concerns are significant. Exploding populations are overrunning medical investigatory boards with rampant anonymous complaints that will warrant investigation.

Every day baseless complaints of Medicare Medicaid insurance fraud, pill mills, sexual assaults, or drug theft and diversion are generated from specious reporters who are either aggrieved patients, angry disgruntled business partners, jealous or angry co-employees, or scorned lovers. House Bill 1619 of 2015 exposes Pennsylvania’s principle-based medical practitioners to unilateral concurrent disciplinary process of member states without the ability to respond, investigate, or even defend oneself in a court of law. Member state’s unilateral actions will automatically trickle back to the physician’s primary licensure state, causing potentially automatic disciplinary action there. The Act as written is not in the interest of Pennsylvania medical community.

The Bi-Annual Registration and Criminal Contact Questions

Multi-state professional licensees face significant legal issues when confronted with a disciplinary action or criminal charges from one state. It is important to know when and what to properly report to each jurisdiction after incurring a criminal charge, conviction, or any resultant disciplinary prosecution. Thereafter, timely handling the resulting reciprocal discipline from Pennsylvania’s licensing board is paramount to retaining all licenses.

I emphasize Pennsylvania due to the vast number of Pennsylvania professional schools from which licensees residing around the country received their original license. Reciprocal discipline will occur after a licensee has moved to another state, for any reason was subjected to professional discipline therein, and then reports the consequences to Pennsylvania’s equivalent professional board.  The multi-step disciplinary process is very complicated and time consuming. Many of my clients retain my services, while residing outside of Pennsylvania, after  receiving a Pennsylvania disciplinary notice for either failing to, or properly reporting, a triggering criminal contact or disciplinary action from another state.

The July 8, 2014 Commonwealth Court decision of Campbell vs. Bureau of Prof’l and Occupational Affairs (2014 Pa. Commw. Unpub LEXIS 411 July 8, 2014) discusses the Pennsylvania Medical Board’s authority and responsibility of imposing both reciprocal discipline and separate discipline for failing to report to the Pennsylvania Medical Board an extra-jurisdiction discipline or criminal conviction. The case once again establishes the importance of candidly answering renewal questions honestly, with integrity.

While a first-time criminal offender who answers honestly the renewal license question merely has to deal with a reciprocal disciplinary issue, Pennsylvania’s licensing boards do not suffer fools lightly who fail to answer honestly the renewal questions contained in the online application. Pennsylvania’s licensing boards will include additional charges in any disciplinary action for failing to properly disclose a professional school disciplinary action, board test failure, criminal charges relating to drugs, or a criminal conviction for any manner.

In the recent case, Dr. Campbell was previous disciplined for failing to disclose his failing a portion of the 2004 licensing board examination. Upon discovery and prosecution, the doctor was given probation, after which his license was reinstated to the full status after several years  Thereafter, the doctor moved to the State of Oregon.

In 2009 he was criminally charged with possession of methamphetamine, which misdemeanor charge was conditionally discharged (“ARD”), but not yet expunged in 2011. On his 2011 license renewal registration, he intentionally did not report the criminal charge and ARD result. The Board found out and the first basis for discipline was the actual criminal charge.  The second count of discipline was that  he intentional omitted non-Pennsylvania criminal drug prosecution in the online renewal questions of the bi-annual registration questionnaire.

Once the Pennsylvania Medical Board learned of both his omission and intentional misrepresentation on his bi-annual renewal, his license was once again prosecuted. While the Board addresses proper evidentiary objections of both prior discipline and criminal ARD type process, the Board squarely addresses the doctor’s misrepresenting his criminal ARD contacts. The Board suspends Dr. Campbell’s license for six months and places him on probation for three years. The Medical Board stated that this sanction was appropriate “to impart to him the seriousness and gravity of his misconduct” and to provide him “with an opportunity to reflect upon the seriousness of his offense and the importance of honesty, integrity and judgment in the medical profession.”

On appeal to the Commonwealth Court, Pennsylvania’s intermediate Court which addresses all administrative agency’s cases such as the Pennsylvania Medical Board, the court affirmed the Board action in whole based upon the doctor’s obvious, intentional, and over acts of dishonesty and deceit. The court reviewed the Board’s statutory authority to revoke or suspend a medical license for the conduct under section 42 of the Medical Practice Act, which provides in relevant part: (a) Authorized actions.–When the board is empowered to take disciplinary or corrective action against a board-regulated practitioner under the provisions of this act or pursuant to other statutory authority, the board may: (3) Revoke, suspend, limit or otherwise restrict a license or certificate. … 63 P.S. § 422.42(a).

Finding the Board had the authority to act, the Court reviewed the Board’s discretionary sanction, stating such is in the Board’s discretion and must be upheld unless it is shown that the Board acted in bad faith or fraudulently or that the sanction constitutes capricious action or a flagrant abuse of discretion. Slawek v. State Board of Medical Education & Licensure, 586 A.2d 362, 364-66 (Pa. 1991); Tandon v. State Board of Medicine, 705 A.2d 1338, 1346 (Pa. Cmwlth. 1997). Absent proof of Board fraud or capricious action and a doctor who intentionally lied on the biannual re-registration process, we know who lost the case.

This opinion is one more example of the adage that the cover-up is always worse than the initial crime. Every licensee who fails to timely and correctly report a criminal contact will face future stiffer discipline. The filing of false or deceptive licensure documents, including biennial registration forms, is a ground for discipline regardless of whether there is any other ground for discipline and independent of whether the content misrepresented relates to patient care or medical ability. 63 P.S. § 422.41(2), (11).

I instruct every criminal client facing a professional license collateral consequence to properly, truthfully, candidly, and completely answer the criminal contact question on the renewal application. To do otherwise as a licensee will merely invite an obvious and easy second basis to commence prosecution.

The Professional License Board Will Not Allow Me To Take My License Test Due To A Criminal Record

On every professional license application, the applicant must truthfully answer all prior criminal arrest and conviction questions. Prior criminal contacts range from minor shoplifting offenses, illegal drug possession offenses, to driving under the influence charges (DWI, DAI or DUI).  Most jurisdictions make no distinction between felony and misdemeanor charges or convictions and admission into pre-trial diversions.  Acknowledging a prior record in the application will create a stumbling block to securing a license.

Certain criminal convictions may not preclude the qualified applicant from obtaining a professional license. In some cases, the licensing board will provisionally deny the drug or alcohol DUI convicted applicant the right to sit for the license examination. A provisional denial will be tendered regardless of whether the applicant was placed in a first time offender pretrial diversion process (PTI or ARD) or was convicted.

The provisional denial requires the licensee to submit to a PHMP evaluation and agree to comply with all treatment recommendations as a precondition to sitting for the license exam. Typically, the evaluation is performed by a local, self-serving drug and alcohol treatment program. Almost always some impairment is found, or unable to be ruled out, regardless of the time difference between the criminal case, drug use history, and the license application. The Board utilizes the assessment to further buttress the impairment conclusion and compel formal PHMP participation prior to licensure.

The qualified applicant should not have to enroll in the PHMP as a condition of being granted a license. My prior blogs suggest that these assessments are conducted by upon untrained, non-experts who render non-scientific opinions that are not recognized in any court of law. It is my opinion that the otherwise qualified applicant should not enroll in the PHMP as condition to receive their license or sit for the test. Please review my prior blogs that extensively address the problems with these programs and the nature and manner of the drug use admissions sought, required monitoring, and the consequence of these legal admissions. Requiring three years of probation, expensive drug testing, practice monitoring, and case worker supervision is not appropriate.

Once the PHMP assessment is completed (some impairment having been found) and the applicant decides to not enroll in the PHMP, a formal denial letter is issued. The burden shifts to the applicant to prove their qualifications. This means the licensee must timely appeal the notice of denial and present their case to the Board. Presenting the case means retaining and attorney and hiring a medical expert to present to the Board a qualified opinion of a recognized expert to counter any PHMP assessor’s suggestion of impairment.

The case then becomes a battle between the applicant’s expert and the Board’s expert. Securing an expert to testify does not end the case. The expert must review all medical and criminal records and interview the applicant for 2 to 3 hours. Thereafter, the expert renders a written opinion to a reasonable degree of medical certainty that no impairment exist. It is imperative to disclose to the expert all prior contacts with the criminal justice system, medical conditions, and educational qualifications. The expert must be aware of all the necessary facts to render an opinion to a reasonable degree of medical certainty.

The types of criminal cases that may necessitate monitoring obviously include one or two drunk driving offenses. These cases, whether involving alcohol or alcohol and other prescription or nonprescription narcotics, do not automatically suggest an impairment or raise patient safety concerns. My typical client may have multiple DUI offenses spread over 10 years.

It is possible that once the Board or their attorney reviews an expert report, they may allow the applicant to sit for the examination. If not, the case will proceed to a hearing in which the Board will review the appropriateness of the application and the expert’s conclusion.  If the Commonwealth does not hire an expert, the appeal should be granted without PHMP conditions. This is because the Board may not make factual findings or legal conclusions without evidence. If a license Board does not hear a Commonwealth expert testify about an impairment, and you have presented an expert, this will necessitate finding of no impairment because there is no evidence or legal basis to find monitoring as an appropriate cautionary step.

Please call me to discuss your application case, any prior criminal records criminal convictions which you may have in the context of your seeking a Pennsylvania professional license and how I may assist you secure your future career.