IMPAIRMENT PROSECUTIONS – SAFE TO PRACTICE- FULL SUSTAINED REMISSION

Alcohol abuse, prescription pain medicine abuse, sleeping pill abuse, Adderall and ADHD medication abuse. Medical providers suffer from these disorders. However, if you go to work every day and professionally perform your care giving responsibilities should you voluntarily admit an impairment and go into the voluntary recovery program? NO
I tell my clients that unless until you are unable to safely perform your profession, as a medical professional you should never admit an impairment and/or an inability to practice safely. Admitting these fundamental facts could, in the long run, substantially impact your career.
Pennsylvania’s appellate courts are pushing back against the health related boards forcing and pushing practitioners in the PHMP drug and alcohol mandatory monitoring program. For a long time Pennsylvania’s health related boards scare professionals into admitting an impairment an inability to safely practice their profession to save their license. For many professionals, the PHMP, PHP, PNAP SARPH program was not legally or medically necessary and its restrictions too great.
The Courts are remind the boards and the experts they hire that if the license professional practices safely and there is no evidence of patient impact or safety issues, the Commonwealth cannot meet its burden of proof in these impairment cases.
In my recent case, my client plead guilty to two separate DUI offenses. One DUI was for drugs and one DUI was for alcohol. Both abuses stemmed from a medical injury and a psychiatric condition. In criminal court, the professional admitted his need for inpatient treatment. He was sentenced to county drug court, with 45 weekends (90 days) in custody. He was paroled to a drug treatment court, county certified halfway house in which he lived for two years.
The Petition for a Mental and Physical was filed while he was serving his weekend sentences. The Board expert’s report stated the obvious, he was impaired and needed monitoring. My client had nothing to lose. The Board would not offer his credit for time clean and on drug court. So, we fought the case.
Procedurally, we rejected a settlement agreement and waited for formal disciplinary action. That was the settlement offer — enrollment in the DMU. We waited for a hearing to be scheduled. My client remained clean, compliant with treatment conourt conditions, and was a model treatment court advocate. He was employed for the half-way house.
At the hearing, we presented proof of 36 months of negative drug tests and excellent employment references. Significantly, the professional was a nursing burn specialist. He remained employed throughout the entire course of the criminal case defenses, while serving his weekend criminal jail sentence, and living in a halfway house. He was given work release as well. As with every medical professional that fights the impairment prosecution, he remained employed while preparing for the Mental and Physical Evaluation, waiting for disciplinary action to be filed, a hearing scheduled, and the recent decision.
This is the employment history I introduced into the hearing record. The Hearing Examiner thought it was exceptional that throughout my client’s pending criminal cases his employer wanted and allowed him to keep working. The job references were stellar. The Board expert had to agree.
The decision recited these key factors that the Nursing Board’s expert conceded on the witness stand. The expert could not testify that my nurse client was unsafe to practice his profession. The expert also conceded 36 months of negative drug screens revealed the alcohol and drug use disorders were in full sustained remission.
The hearing examiner concluded the Commonwealth did not meet its burden of proof. The Commonwealth could not establish an ongoing, continuing alcohol, drugs, or medical condition that impaired my nurse clients ability to practice his profession. As well, The hearing officer credited my nurse’s employment references, annual job evaluations, and employer testimony come to conclude that he was, in fact, safe to practice.
Absent these two crucial elements in the Commonwealth’s case in chief, my nurse client is not required to go into the PHMP, PNAP monitoring program. This case is a perfect example of why medical professionals should never admit an impairment or inability to practice their profession. The time delay between criminal charges, mental and physical evaluations, and a formal hearing allows the medical professional to organize their life, prepare their defense, and successfully fight their case.
Call me to discuss.

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.

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.

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.

Criminal Conviction – Professional License Suspensions and Mitigation Evidence

The Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), requires Pennsylvania’s licensing boards consider criminal convictions disclosed on license applications or which take place after licensure as a reason to discipline active licensees. Different licensing boards apply CHIRA’s rules differently.

On February 28, 2018 Commonwealth Court decided Bentley vs. BPOA, — A.3d —- (2018).  This cases expounds on how a licensing board abuses its discretion when it disciplines a licensee for criminal conduct not related to their license. In 2013 and 2014, Cosmetologist Bentley was convicted in two separate cases of possession with intent to deliver a controlled substance, forgery, aggravated assault, escape, and attempting to allude the police. Wow.

handcuffs-with-gavel-on-a-wood-background-picture-id504104838

Bentley reported the convictions to her Board, which issued a Rule to Show Cause seeking to discipline her license under CHIRA.  At the hearing, the Cosmetology Board prosecutor only presented the certified criminal conviction. This is the typical prosecutor practice.  No witness testified as to the underlying criminal conduct.

It is important to have competent counsel at this hearing.  Counsel should object to inadmissible portions of the certified conviction documents. Objections to hearsay statements in affidavits of probable cause eliminate statements of people not present at the hearing.  The licensee can not cross-examine that witness.   I always have these documents paired down and limited.  My client/licensee’s explanation of the criminal case is the only version of events. Consistent Nguyen v. BPOA, licensees are allowed to explain their role in any multi-defendant criminal case. They may explain a co-defendant’s greater role than their own.

During her hearing, through counsel, Bentley presented significant and appropriate mitigation evidence. Mitigation evidence included the delay of the prosecution versus the time of the criminal act; new and abundant family support; full and complete responsibility for the criminal act; the unique set of factors leading up to the criminal charges and her association with her then boyfriend and now co-defendant.  Most importantly, she described her rehabilitation while in state prison. This rehabilitation included anger management, employment/cosmetology training, and new religious faith. She presented reasonable and appropriate community reputation evidence. This evidence corroborated her claim of being rehabilitated, remorseful for her actions, and turning over a new leaf.

beyond-the-classroom-into-the-courtroom

The hearing officer suspended Bentley’s license for the balance of her parole (probably not long). The Cosmetology Board, as all boards do, issued a notice of intent to review the hearing officer’s decision.  The Cosmetology Board rejected as modest Bentley’s mitigation evidence. The board suspended Bentley’s cosmetology license for three years based upon the criminal convictions. The Board rejected Bentley’s need for licensure to remain employed, her rehabilitation, and need to support herself.

Bentley appealed to the Commonwealth Court.  She claimed the Board abused its discretion when it rejected her mitigation evidence and suspended her license based solely on the criminal convictions.  Bentley alleged that the Board summarily ignored all of her uncontested mitigation evidence, which was not contradicted by any evidence the Commonwealth introduced in the certified criminal conviction. Bentley argued the suspension was manifestly unreasonable because the convictions bore no relation to the practice of cosmetology. Arguing the Board’s conduct capriciously disregarded her mitigation evidence absent explanation was an abuse of discretion.

On review the Commonwealth court agreed. Commonwealth Court defines capricious disregard as “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinarily intelligence could not possibly have avoided in reaching a result. When strong evidence contradicts contrary evidence, the adjudicator must explain the basis for its determination.” Absent a proper explanation why the adjudicator is rejecting overwhelming critical evidence, the board abuses its discretion.

As with many of my cases the time delay between criminal event, conviction, and disciplinary action may be five or six years. I argue Board delay which allows the licensee to practice of their profession for three or four years renders mute any board allegation that there is an emergent basis for extensive discipline. Suspension or revocation is not warranted if the board took six years to do it.

Also, the Cosmetology Board licensing scheme does not authorize discipline for criminal convictions not related to the profession.   Imposing discipline based upon the convictions was an error of law.  Such also revealed ignorance of Bentley’s mitigation evidence.  The court found Bentley’s mitigation evidence unique and must be considered.
The Commonwealth Court held that the Board’s summary rejection and failure to consider it constitutes a capricious disregard of the evidence. Such is an abuse of discretion for which the Commonwealth Court rejects the board decision and sends the case back to the Cosmetology Board.

This case is an example of licensing boards tightening their belts and implementing a much stiffer enforcement environment. This appellate  decision, and several other recent cases, reveal licensing boards routinely abusing their discretion and ignoring the law that guides their decisions.  Non-law trained licensing board members shoot from the hip regarding the discipline that they want to impose upon their license fees. Many times, there is no legal basis for the discipline.

When licensees take an appeal, they have an appellate, independent, unbiased court review the nature and extent of imposed discipline.  The appellate court rejects this board’s arbitrary and capricious decision. Unfortunately this costs a lot of money. However, in many of my cases I see unfettered discretion punishing hard-working licensees that is far beyond both what is necessary and reasonable and what the licensing statutes allow.
Call me to discuss your case.  A criminal record should not be a bar to getting or keeping a license.
 jerry-arrest-record-seinfeld1
Jerry’s career took off.  So should yours.

Professional Licensing Board’s Discretion and Appellate Case Review

The discretionary decision making process of Pennsylvania’s twenty six professional boards is a huge appellate issue many cases confront.  In a recent case, board discretion is discussed in the context of non-criminal conduct and the Medical Board’s authority to police its own licensees.  The case is Mosuro v. Bureau of Prof’l & Occupational Affairs, 2016 Pa. Commw. Unpub. LEXIS 717 (Commw. Ct. Oct. 13, 2016).

Dr. Mosuro was disciplined in the state of Texas as a result of a medical relationship with a pain management clinic.  Dr. Mosuro was compensated by the owner of the clinic, an Advanced Practical Nurse (“APN”) licensed under Texas law, with a flat fee for each prescription he wrote for a clinic patient. In turn, the APN referred patients to Dr. Mosuro for other treatment.  Upon being investigated by the Texas Medical Board, but with no criminal charges being filed, the doctor enter into a consent agreement acknowledging violations State of Texas  Medical Board laws, rules, codes, and regulations due to his failure to supervise the APN and allowed her to prescribe medications that were non-therapeutic while acting under his prescriptive delegation. Charts were also not adequately documented and prescriptions were not supported by objective medical findings and data.  In sum, he allow his prescriptions to be used in a pill mill.

The Texas Board of Medicine issue the public reprimand and a $10,000 fine. He was also given a prescription prohibition on ordering, prescribing, or dispensing scheduled medication services.  The licensing authorities of Maryland, Tennessee, Alabama, and Virginia imposed similar discipline on Dr. Mosuro ‘s license.

The Commonwealth of Pennsylvania commenced disciplinary proceedings based upon Texas’ disciplinary action, accusing the doctor under 63 P. S. § 422.41 of improper prescribing of controlled substance through his involvement with the pill mill and his failure to properly supervise a nurse practitioner as required under Texas law. Standard of care violations, documentation of medical record violations, and unprofessional conduct were perceived by the Pennsylvania Medical Board as very serious.

After hearing in Pennsylvania, the hearing examiner proposed an Order and Adjudication of a $500 civil penalty and indefinitely suspended Doctor Mosuro license to practice medicine in the Commonwealth of Pennsylvania. Upon review, the Pennsylvania Medical Board excepted the hearing examiner’s Findings of Fact and Conclusions of Law but rejected the recommended order. Rather, the Medical Board ordered a public reprimand on Dr. Mosuro ‘s permanent licensing record, a $5000 civil penalty, and an indefinite suspension of his license to practice medicine and surgery in the Commonwealth of Pennsylvania. Reinstatement may be sought upon compliance with the Texas Board order and his Texas medical license being reinstated to unrestricted status.  This totaled over $15,000 in fine for a doctor unable to practice medicine.  This Board issued this order even though Dr. Mosuro did not have an active Pennsylvania medical license, was not practicing in the Commonwealth of Pennsylvania, and was disciplined by many other jurisdictions as a result of the same conduct.  PENNSYLVANIA’S DISCIPLINE WAS THE HARSHEST OF ALL JURISDICTIONS.
Dr. Mosuro appealed to the Commonwealth Court.  The scope of the Commonwealth Court appeal is limited to determining whether the findings of fact are supported by substantial evidence and whether the board committed errors of law or constitutional violations.” Blair v. Bureau of Prof’l & Occupational Affairs, State Bd. of Nursing, 72 A.3d 742, 750 (Pa. Cmwlth. 2013).  In review of the record, the appellate court concludes  the Medical Board’s extensive discipline based solely upon the opioid prescription drug abuse crisis is proper. The Board restates with approval the Pennsylvania Medical Board citation to recent Pennsylvania legislative findings regarding human suffering associated with addiction and how its epidemic has reached families throughout the Commonwealth.
The Medical Board and the Commonwealth Court use this case as a example of how to ensure public safety from medical practitioners who use their medical licenses to create “rogue pain management clinics” in Pennsylvania. Citing statistics that Pennsylvania ranks seventh in the nation for drug overdoses from prescription pain killers and the role of pill mills in the overdose epidemic, the Court approves the Medical Board utilizing these facts to “engage in its purpose under the medical practices act of safe guarding the public health and welfare”.

The Court did not address the Board’s role of insuring individual penalties to individual licensees be based upon their case facts. The Court affirms Board citation to broad policy language that the prescription overdose epidemic cannot be ignored. The Commonwealth Court concludes that when as now there is a “current threat to public health and welfare when assessing whether a Board carries out its statutory mandate in a purely arbitrary and capricious manner”, the Medical Board is properly carrying out its broader policy mandate of stopping pill mills during this great opioid epidemic.  Such is sufficient factual and legal reasoning to discipline even an in-active medical licensee.

 The Commonwealth Court limited its inquiry into the “wisdom of the board,” not reviewing the administrative decision of the Medical Board with an eye towards substituting it’s judgment of what is reasonable for that of the agency whose decision is being reviewed. The court let stand the Pennsylvania Medical Board’s perceptions of the seriousness of the doctor’s Texas discipline, how such is also a violation of Pennsylvania’s medical licensing scheme, and the Board’s broad policy reasons for its discipline.
In sum, Commonwealth Court concludes that “the board did not abuse its discretion by taking strong action to protect the safety and welfare of citizens by suspending Dr. Mosuro’s license instead of imposing conditions on his license similar to those of the Texas Board.” Dr. Mosuro’s violation is very serious. In determining that the Board did not abuse its discretion, the Court states “even if we disagreed with the severity of the sanction and thought the Texas Board’s decision was more appropriate, the sanction must be upheld because proper review is not whether it’s order is reasonable, but whether it was made in accordance with law.”  Facilitating and conspiring to engage in operation of a “pill mill”, the Court and the Medical Board conclude, is not in accordance with law and, therefore, the suspension of the medical license is within the confines of the Board’s regulatory authority.

Call me to discuss your out of state disciplinary action and Pennsylvania’s pending disciplinary action.

Admitting To Unethical Behavior Without Counsel Will Cost You Your Professional License.

The Commonwealth Court, on November 6, 2014, handed down Van Ness v. Bureau of Occupational Affairs. This decision is a text book discussion of specific conduct upon which Pennsylvania’s licensing boards will base their decision to strip a licensee of their professional license. A guilty plea or admitting to an employer or Board investigator that one has engaged in fraudulent billing services in the course employment will be the basis for disciplinary action.

Van Ness worked as a independent contractor, physical therapist for a rehabilitation entity. He provided physical therapy to special education students on an as needed basis. Unfortunately, Van Ness both over billed and did not keep proper track of his time and effort for the patients/clients for whom he worked and then incorrectly and illegally billed for his services. Upon being confronted with over 400 hours of over billed services, constituting 600-700 entries of services rendered, totaling over $16,000, Van Ness admitted to his employer/contractor that he did not do the work and he needed the money. This was an admission of engaging in fraud based upon greed.

Upon being reported to the Physical Therapy Board and attending a hearing, the hearing examiner found that Van Ness participated in the use of a communication containing false, fraudulent, deceptive or unfair statements when he submitted fraudulent bills for payment of services he did not render. Although there was a finding for a disciplinary basis, 49 PA. Code section 42.24(5), the hearing examiner suspended Van Ness’s license for six months. The Commonwealth sought a complete license revocation.

The PT Board reviewed the hearing officer’s finding of facts and conclusions of law, determined that every intentional entry of false information for billing records constituted a separate serious offense each of which demeaned the reputation of the healthcare system and medical practitioners. Concluding that Van Ness engaged in this type of behavior consistently for a four month period purely for greed, “placing his desire for financial gain over the treatment needs of special needs children for whom he responsible, “the board rejected the six-month suspension suggested by the hearing officer and imposed a five-year license revocation.

Van Ness appealed arguing that the PT Board did not consider his post incident rehabilitation and consistent legal conduct acting as an occupational therapist with out further incident. The Commonwealth Court determined that the Board was fully within its authority to enforce a five-year license suspension based upon a code of ethics violation. The Court did not differentiate between an ethics violation or criminal charges to which Van Ness could have been subject had there been a criminal investigation.

The import of this case is significant. Initially, do not make any admissions to an employer, contractor, or state investigator of any type of billing irregularities. Van Ness was not criminally charged. He did not enter into any ARD program or guilty plea for which he was subject to a conviction and other disciplinary conduct. There was no evidence in the record of complaints by occupational therapy clients of service not being rendered. There was no forensic testimony of billing code violations, types of treatment or services not rendered compared to the actual services rendered and incorrect billing codes suggested, or any other evidence in the case. The only evidence was his own admission.

Apparently the entire disciplinary action was predicated upon Van Ness’ own words. His admission to culpable ethical breaches for whatever reason, cathartic or not, doomed his case. Any admission to this type of criminal behavior in the current enforcement atmosphere of heightened sensitivity to Medicare/Medicaid fraud schemes creates an almost insurmountable suggestion of future disciplinary action. Contacting counsel to address how to proceed with any type of state-based investigation, employment related inquiry, or work related discipline is important. Unfortunately for Van Ness he did not do that. Please call me to discuss your case.

Nursing License Discipline, Willful Misconduct, and Unemployment Compensation

The first battle in nursing, work-place disciplinary cases is the unemployment compensation fight. Even though nursing positions are in high demand, unemployment compensation bridges the gap until new employment is found. Here, employers lob their first volley of demeaning, demoralizing, and casting blame accusations against their former nurses.

The unemployment case commences with job termination based upon allegations of a nurse violating arcane, untrained, work place rules. In reality, the employer is seeking a scapegoat to protect itself from a potential but yet-to-be filed negligence claim.  As a hard working nurse, the rule violation is typically baseless (unsubstantiated by the actual facts of the work place circumstance). Once fired, the nurse must file for unemployment compensation to pay bills.  The Hospital/employer responds by “hanging the employee out to dry,” alleging the employee intentional or deliberate work rule violations warrant termination.

On October 16, 2013 the Commonwealth Court this fact pattern in Patricia Phillips v. Unemployment Compensation Board of Review. In that matter, the employer contested operating room nurse Patricia Phillips’ eligibility for unemployment compensation benefits. Ms. Phillips was a circulating operating room nurse responsible for ferrying “labeled” biopsy and operating room specimens to the pathology lab for testing during the operation.

Similar to many other workplace circumstances, Ms. Phillips was on leave for several months prior to this specific incident that led to her termination. Upon returning to work she sought additional training in the new operating room specimen cataloging procedures. Due to the understaffed and overworked nature of operating room nursing staff, she was not given an opportunity to receive the full training on new specimen cataloging procedures.

Unfortunately, within one week of her return to work, after a relatively complex surgical procedure, she delivered specimens to the lab that were not properly identified. Upon completion of the post-operation briefing, the oversight was discovered and the specimens were properly identified. However, the employer terminated Phillips’ employment. The hospital claimed a violation of workplace specimen labeling rules for which Phillips was aware and the violation of that rule alone automatically resulted in her ineligibility for benefits.

The initial unemployment compensation referee agreed -no benefits. Nurse Phillips appealed. The Unemployment Compensation Board of Review agreed – no benefits. Phillips appealed to the Commonwealth Court of Pennsylvania, the first appellate court able to review decisions of law by the lower administrative courts. The Court reversed and found that the mere existence of a workplace rule and mere noncompliance therewith does not render claimants automatically ineligible for unemployment compensation benefits.

Willful misconduct is not, the court stated, based upon any single one factor but is determined in light of all circumstances. Mere noncompliance with one or two workplace rules does not establish an intentional violation or indifference to an employees’ duties. Rather, the employer must establish a deliberate violation of the employer’s policies or a willful disregard of the employer’s interest. Only direct evidence of a petitioner’s conduct and intentions will satisfy this high burden of proof.

The Commonwealth Court determined that an employee’s inadvertent violation of employer’s workplace rule does not automatically constitute willful misconduct warranting a denial of benefits. The court ruled that mere direct but simple violations of workplace rules, no matter how many, alone do not constitute a basis for denial of unemployment compensation benefits. Rather, the employee’s appropriate, timely, and justified explanation of the factual circumstances precluding her from knowing or following the rules must be addressed in the record and considered by the referee when making a determination of intentional or willful misconduct.

The applicability of this case to the nursing realm is important. Every nurse that is terminated from their high stress, high-volume, under-staffed, and highly complex workplace environment should apply for unemployment benefits. An employer’s claim that you failed to comply with workplace rules as the sole justification for termination is false. Hostile work/patient environments, overpopulated hospitals, and understaffed nursing departments requiring nurses to perform two or three jobs without adequate training, supervision, and compensation are all factors that must considered by any unemployment compensation referee.

This case clearly stands for the statement “it’s not what happened on the job, but why it happened.” Please call me to discuss your workplace termination. In this hostile workplace environment and heightened regulatory reporting time, every job place termination will result in a license reporting investigation by the state licensing boards. Start out your defense of your license at the first administrative hearing possible.

Gross Immorality Behavior against Demented Patients Requires Nursing License Revocation

Today’s blog concerns inappropriate nurse behavior, attitude, and conduct towards our senior citizens which will become the basis for disciplinary action and/or license revocation. In Leanne Vitteck, LPN, Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Nursing, the appeals court was asked to determine whether the State Board of Nursing properly permanently revoked a nurse’s license for gross immorality.

Here nurse Vitteck was accused to have forcibly removed a sensor monitor from the hand of the 89-year-old nursing home resident who suffered from dementia. Vitteck was accused of stating that she was “sick of being a f*cking babysitter” to this victim. Vitteck was also accused of allegedly threatening to “break the hands” of 97-year-old resident suffering from dementia. On a third occasion the same nurse threatened a wheelchair bound resident with physical violence.

Vitteck was formally charged with failing to respect and consider patient’s rights to freedom from psychological and physical abuse, failing to safeguard patients from incompetent, abusive or illegal practices, and engaging in gross immorality and being unfit or incompetent by reasons of habit negligence. These allegations are in violation of Sections 16(a)(1), (2), (3) and (8) of the Practical Nurse Law and Sections 21.148(a)(2) and (3) of the Nursing Board’s regulations, 49 Pa.Code §21.148(a)(2) and (3), which set forth the standards of nursing care. At the administrative hearing, the prosecutors presented eyewitness testimony to each physical and verbal confrontation. The witnesses confirmed the factual allegations of both the Vitteck’s behavior. Importantly, the witnesses also confirmed the excessively difficult patient, each of which was suffering from severe dementia.

The Board found the facts were relevant and appropriate to revoked permanently Vitteck’s license because she was “unfit and incompetent to practice by reason of habits, negligence and other causes and that the nurse engaged in unprofessional conduct by failing to respected consider patients rights to freedom of psychological and physical abuse and to safeguard her own patients from abusive practices.” The Board concluded that rehabilitative efforts, such as retraining or suspension would be futile and that the nurse’s profanity, verbal threats, and physical conduct together, not independent of each other, warranted revocation.

The appeals court was very clear in its conclusion that the Board’s decision coupling the physical and verbal abuse together warranted suspension. The court indicated that profanity in and of itself, along with verbal inexcusable, discourteous, and reprehensible behavior is not typically enough to establish gross incompetence. The court cited several cases indicating that professionals who use profanity towards patients, clients, and other professionals does not support a showing of professional incompetence. “While it may be unwise, it does not rise to amount of incompetence which warrants revocation of a professional’s license.”

However, the Court went on to say the Board was correct that in the context of long-term nursing facilities LPNs must “[r]espect and consider, while providing nursing care, the individual’s right to freedom from psychological and physical abuse” and “[a]ct to safeguard the patient from incompetent, abusive or illegal practice of any individual.” 49 Pa.Code §21.148(a)(2) and (3). Verbal abuse is defined as any use of oral written word gesturing language that willfully includes disparaging and derogatory terms to residents or their families or within hearing distance, regardless of age ability to comprehend. The board determined that Vitteck failed to respect and consider, while providing nursing care, the individuals’ right to freedom from psychological and physical abuse.

Importantly, the court affirmed the Board’s holding that merely slapping the patient’s hand, where the patient is in danger falling out of bed cannot by itself constitute a violation of the standard of nursing care where such care is “calculated to promote the patient’s well-being.” However the board held that factually Vitteck was not engaging in any nursing conduct that was calculated to promote the patient’s well-being. The Board concluded that the records reflected profanity in conjunction with physical inpatients and forceful and aggressive disciplinary behavior in no way would promote the well-being of a patient suffering from dementia.

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