Professional License Indefinite Suspensions for Missing the Mental and Physical Evaluation

Board authority to  compel a mental and physical examination(“MPE”)  is pursuant to 63 P. S. § 2205(D)(1).  The purpose of the evaluation is to determine whether, under 63 P. S. 224(a)(2) for nurses, a licensee is unable to practice their profession with reasonable skill and safety by reason of mental or physical illness or condition or psychological or physiological dependence on alcohol, hallucinogenic on narcotic or other drugs that impair judgment and coordination.  Similar impairment evaluation provisions are contained in each of the twenty six different Pennsylvania licensing schemes.

A formal board order compelling attendance always accompanies these Petitions.  The Board signs the order to compel both attendance and compliance with document production requirements.  Typically, these petitions are filed, licensees show up at the expert’s office for the examination compliant with the terms and conditions of the MPE order.  It is the unique case where a licensee does not show up and their license is summarily suspended.

License suspension is based upon the Pennsylvania Code provisions that states,  if a licensee fails to attend the MPE,  the allegations of impairment are deemed true.  The admissions of fact and law allow the Board to conclude impairment and formal suspension is ordered.   License reinstatement after this step requires attending a PHMP expert evaluation (at the licensee’s expense) and complying with all other aspects of the suspension order.
Why or how would a licensee not go to the Mental and Physical Evaluation?  Failure to maintain an up-to-date address with one’s Pennsylvania licensing board, resulting in missed notices is the first way. Secondly, thinking these appointments can be unilaterally changed or failing to properly communicate scheduling conflicts create huge problems.  Minor inconveniences though do not warrant not attending the procedure.  The last way is the simplest; a licensee simply does not attend the evaluation for fear of the result.
Case law discussing these provisions specifically requires proper Board notification of the MPE and suspension to the licensee’s address of record.  The address on record is the address to which the Board is required to provide notice of a disciplinary action in order to honor its constitutional due process obligations.  The Board only needs to provide proof of service via regular and certified mail.  It is licensees burden to attend or reschedule the evaluation.
Why do licensees have to go to these evaluations?  Section 224(a)(2) of the Nursing law, for example, is the standard provision in every regulatory board scheme.  Board prosecutors receive information suggesting an impairment.   In seeking licensure, licensees agree to be regulated by the State.  Licensees agree to honor the provisions of Pennsylvania code and case law interpreting the code.

The MPE is just such a provision in an over arching regulatory scheme the Commonwealth has erected to protect its citizens from errant and high licensees (realtors, doctors, pharmacists, nurses and the like).  My blogs deal with my role in preparing each licensee for the MPE. However, I cannot accept mail for each licensee. Once we are retained, I am able to re-scheduled the MPE with consent of either the doctor, Board counsel or prosecuting counsel.  This allows me time to assist the licensee organize their documents and prepare for this expert examination.  I cannot receive the mail.

The consequence on the licensee of not attending the evaluation is significant. While not immediate, eventual license suspension for failure to honor a Board order will occur. Reinstatement will only take place upon attendance of that MPE.  Additional requirements include providing a criminal background check, proof of compliance with all continuing education burdens, proof of no practice during the term of suspension, and payment of investigatory costs.
As well, included in the typical MPE order is the Board paying for the evaluation.  Once a licensee refuses or fails to attend the MPE, the MPE expert evaluation expense must be borne by the licensees.   Please call me to discuss your recent mail compelling you to attend a mental and physical examination.or suspending your license for missing one.

Criminal Charges – Nursing Board Petitions for Mental and Physical Evaluations – Remaining Silent

Effective October 2015 Pennsylvania nurses became responsible for reporting to the State Board of Nursing any criminal arrest/charge (not just conviction). The practical impact of this new reporting regulation is now being felt.

Typically, criminal charges lodged against nurses relate to drug use or diversion and driving under the influence (DUI) of alcohol. These criminal charges, once reported, result in “Letters of Concern” from the Voluntary Recovery Program (VRP), PHMP demands for enrollment, and possible Board action.  Nurses who do not enroll in the VRP and PHMP (which they should not – see my other blogs), typically end up having filed against them a Petition for a Mental and Physical Evaluation. This is OK and not the problem, though, because now an expert will do the evaluation, not a PHMP social worker.  My many archived blogs address all aspects of the PHMP and why not to enroll.

The new wrinkle in the Petition for Mental and Physical Evaluation process, compelled via an Order to Show Cause (OSC),  is that many professionals will not have completed the criminal process involving the drug or DUI related offense. The criminal matter has yet to reach the County Common Pleas Court in which the charges originate. In some cases, the nurse has yet to be approved for ARD or even had their preliminary hearing. This is significant for the professional who is ineligible for ARD.

Professionals with prior criminal records (yes, you still can get a license or not loose one and incur a second offense) are ineligible for ARD. They must fight the DUI charge. In this context, every professional has a right to remain silent.  The Commonwealth must prove each element of each criminal offense without using the professional’s own words to secure a conviction. The professional has no obligation to make a statement in any criminal prosecution.  In Pennsylvania the professional does not have to help the prosecution prove any element of any offense lodged against them. This is the professional’s Fifth Amendment Constitutional right to remain silent.

The criminal offense reporting regulation ignores this constitutional protection.  Expedited OSC petitions compel professionals to talk. In the Mental and Physical Evaluation, the professional is extensively queried about the criminal conduct, historical criminal activity, and recreational non-prescribed drug use. These statements are not confidential.  The Petition for Mental and Physical is authorized by the Probable Cause Screening Committee and not the entire Professional Board. The expert who conducts the evaluation and authors a report to the Commonwealth eventually testifies in a formal disciplinary hearing.

Statements to the expert are now public, subject to discovery by the criminal court prosecutor.  Routine reciprocal discovery requests in criminal cases include whether the defendant has made any prior statement, admission, or testified under oath in another proceeding regarding the facts are allegations contained in the criminal matter. The expedited disciplinary process now raises the question in civil disciplinary prosecutions whether or not the professional, contesting disciplinary action, should speak and waive their constitutional right to remain silent in the criminal context.

Courts in Pennsylvania have addressed this issue in administrative driver’s license actions.  In Pennsylvania driver’s license suspension proceedings civil trial courts routinely continue the civil license suspension trial stemming from a DUI.  These twin civil/criminal prosecutions originate from the same DUI arrest investigations when the defendant refuses to submit to a breath or drugs or alcohol test.
Practically and legally, my legal advice in these representations includes advising the DUI defendant to continue the civil matter until the DUI case is closed. The nursing board, it’s infinite wisdom, either is unaware of this process or chose to ignore professionals’ Fifth Amendment right against self-incrimination.
All professionals should be aware of this conflict created by the Nursing Board in these expedited OSC petitions seeking Mental and Physical evaluations when a related DUI or other criminal matter is pending.  Please call me to discuss how to resolve this conflict and your professional license disciplinary matter.
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