Pennsylvania’s New Opioid Treatment Agreement Law

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

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

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

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

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.

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.

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.

Social Media — Facebook, Instagram and State Licensing Board Prosecutions

Social media and the advent of voluntary public display of everything is starting to affect Pennsylvania’s professional licensing board investigations.  For the last ten years I have consistently represented client’s under investigation for drug diversion and theft.  These cases typically stem from hospital and nursing home based investigations.  A new twist in the investigatory practices of these cases has emerged.
It is important to realize how state board investigators are now utilizing social media as an investigatory tool.  Voluntary picture posts on Facebook, Instagram, or other websites will are now used as the professional’s own statements. Facial recognition software identifies and attaches names to various people in most photographs.  Aspiring and licensed professionals should pause when choosing which if any photographs to post or in which they are included that others are posting. This should give you the professional great concern.
Pennsylvania’s Department of Attorney General, Bureau of Narcotics Investigations (BNI) and licensing board investigators have begun to search social media for names, addresses, the identity of complaining witnesses, and/or information to aide their criminal and licensing prosecutions.  Investigators are learning —  through a target’s own social media self-promotion — the target’s social activities, accomplices, associates, friends, and favorites hang outs.  Many witnesses that would otherwise never be found are located, interviewed, and intimidated.
As well, during a client’s recent Nursing Board Mental and Physical Evaluation, the western Pennsylvania based psychiatrist asked my nurse client of her social media participation. This psychiatrist revealed he had searched Facebook, Instagram, and other social media outlets in preparation for the psychiatric drug impairment evaluation. The doctor sought evidence to confirm and corroborate my client’s statements during her evaluation about her social activities and drinking tendencies. The psychiatrist sought photographic and statement evidence which could reveal my professional client’s evaluation statements may have been inconsistent with social media and/or statements is medical records to her doctors.

Credibility is the most important piece of evidence in an independent medical examination and at a licensing application or disciplinary hearing.  The witnesses I  present at a licensing hearing (live, via telephone, or in a letter) corroborate and strengthen my professional client’s reputation, character, and credibility.
Photographs of social celebration in the context of disciplinary hearings based upon accusations of drunk driving or drug and alcohol impairments constitute important cross-examination evidence.  When a professional voluntarily hands to a psychiatrists, criminal or licensing board investigators evidence against them (or life style pictures that may poorly depict that licensee) it makes my defense harder and the prosecutor or psychiatrists impairment investigation easier.  DO NOT DO THIS  TO YOURSELF.
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