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.
Advertisements

Serious Medical Conditions according to Pennsylvania’s Medical Marijuana Law and How They Relate to Medical Professionals

medical-marijuana-doctor-online

Pennsylvania began the legalization of medical marijuana with specific limitations on the medical conditions for which a practitioner can issue a prescription for medical marijuana (“MM”).   Act 16 of 2016, Section 403 (a) – Conditions for issuance – allows a physician to certify medical necessity only if all of the following requirements are met:

(1)  The practitioner has been approved by the department for inclusion in the registry and has a valid, unexpired, unrevoked, unsuspended Pennsylvania license to practice medicine at the time of the issuance of the certification.

(2)  The practitioner has determined that the patient has a serious medical condition and has included the condition in the patient’s health care record.

(3)  The patient is under the practitioner’s continuing care for the serious medical condition.

(4)  In the practitioner’s professional opinion and review of past treatments, the practitioner determines the patient is likely to receive therapeutic or palliative benefit from the use of medical marijuana.

The regulations define Serious medical condition as:

 (i) Cancer.
 (ii) Positive status for Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome.
 (iii) Amyotrophic lateral sclerosis.
 (iv) Parkinson’s disease.
 (v) Multiple sclerosis.
 (vi) Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity.
 (vii) Epilepsy.
 (viii) Inflammatory bowel disease.
 (ix) Neuropathies.
 (x) Huntington’s disease.
 (xi) Crohn’s disease.
 (xii) Post-traumatic stress disorder.
 (xiii) Intractable seizures.
 (xiv) Glaucoma.
 (xv) Sickle cell anemia.
 (xvi) Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.
 (xvii) Autism.

For the medical licensee seeking a medical marijuana card, the significance of these medical conditions cannot be understated.  A Pennsylvania medical licensee (nurse, doctor, dentist, and all others)  will have to suffer from a serious medical condition.  A referring medical marijuana practitioner  will have to certify the professional licensee’s serious medical condition necessitates marijuana for therapeutic or treatment reasons.  The practitioner will have to perform a completed and full assessment of the patient’s medical history and current medical condition, including an in-person consultation with the patient.  Reviewing the prescription drug monitoring history of that patient/licensee will also be necessary.

A MM practitioner will have to credibly determine that imminent disability is present, warranting therapeutic medical marijuana as all other drugs have or are failing.   Well, if the medical professional is disabled, they can not do their job.  If they are high on medical pot, the Boards think these licensees probably should not be permitted to practice their profession.

The burden of proof in disciplinary cases involving drugs or alcohol is whether the licensee suffers “from a drug or alcohol addiction or impairment or a medical condition that renders them incapable safely practicing.”  If a medical licensee’s MM practitioner suggests to the Department of Health the licensee is medically disabled to a degree that requires the therapeutic use of medical marijuana, a medical record has been generated stating the licensee is almost medical disability from practicing their profession. The medical impairment burden, it could be argued, has been met.

Conversely, if the medical licensee is prescribed medical marijuana (but not disabled), the use of medical grade marijuana renders the licensee under the influence of drugs or alcohol to such an extent that renders them in capable of safely practicing.  This logical reasoning jump  — using marijuana automatically renders one unsafe the practice — is found in other provisions of Pennsylvania law.  Those include the Drug act and Pennsylvania’s DUI statute.

e5a62f7797183c397477ae7c164df342--drunk-driving-driving-safety

Pennsylvania’s DUI statute, 75 Pa. C.S.A. §3802(d) provides for legal intoxication if the mere presence of marijuana is in one’s bloodstream.  (Pennsylvania is not a drug recognition state where the prosecutor has to put into evidence testimony from a drug recognition expert, a “DRE”, that the level of marijuana in somebody’s blood renders them under the influence and incapable of safely driving.)  Pennsylvania is a per se violation state.  This means that the legislature has determined as a matter of policy, that any marijuana or other schedule II prescription medication in a person’s blood, renders that person automatically incapable of safely driving.

It is not a hard legal argument to suggest that if you can not safely drive because you are high on pot (any amount), the medical professional can not perform their medical  duties because they are high on pot.  Here is where the confidentiality provisions of the Act are important.   Section 301(A)(4) of the Act establishes an electronic database to include activities and information relating to medical marijuana organizations, certifications and identification cards issued, practitioner registration and electronic tracking of all medical marijuana as required under the Act.

Section 301(B)(a) allows for confidentiality of Patient information.–The department shall maintain a confidential list of patients and caregivers to whom it has issued identification cards. All information obtained by the department relating to patients, caregivers and other applicants shall be confidential and not subject to public disclosure, including disclosure under the act of February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, including:

(1)  Individual identifying information about patients and caregivers.
(2)  Certifications issued by practitioners.
(3)  Information on identification cards.
(4)  Information provided by the Pennsylvania State Police under section 502(b).
(5)  Information relating to the patient’s serious medical condition.

My concern is that these provisions in conjunction with other Pennsylvania rules and regulations will be employed against the medical professional who seeks and secures a medical marijuana card.  Your doctor must provide this information to the Department of Health.  If pot is found in a medical licensee’s blood, getting the medical records from their doctor (who will be discovered through the data base) is very easy.  Or, the licensee will be compelled to identify and provide their MM practitioner and his records at a Board ordered evaluation.

My experience in Pennsylvania’s heightened enforcement environment strengthens my conviction on this point. Currently every single DUI, workplace positive drug test, or other minor legal infraction is generating Board ordered mental and physical evaluations. The Boards are getting ready for a waive of intoxicated professionals.  They are gravely concerned for the well being of the Commonwealth’s citizens.  The Boards figure, get any current licensee help, stripped of their license, or at least in the Board’s radar so that when that licensee starts legally or illegally getting high and they learn of it they will be ready.   Any issue that brings the medical professional – high on legal Pennsylvania medical pot – to their respective Board’s attention will become the subject of a targeted enforcement scheme to strip their license.

 

Call me to discuss your medical condition, medical needs, and how to proceed.

 

 

 

Pennsylvania’s DUI Statute and Warrantless Blood Draws On An Unconscious Person

Since Birchfield v. N. Dakota, 136 S.Ct. 2160, 2173, 2185, 195 L. Ed. 2d 560 (2016), the Pennsylvania Supreme court has swiftly moved to invigorate and buttress Pennsylvania civil liberties and motor vehicle drivers’ privacy rights.  On July 19, 2017, in Commonwealth v. Myers, 2017 Pa. LEXIS 1689, 2017 WL 3045867, the Court upheld lower court rulings granting suppression of blood evidence seized from a drunk, unconscious motorist.

The facts are simple. Myers was visibly drunk, operated the motor vehicle, was arrested by one police officer, and taken to the hospital for a blood draw. A second officer arrived at the hospital, did not observe Myers or ask his consent to take his blood before hospital staff administered medication rendering Myers unconscious.  Unable to respond to his commands, the 2nd police officer instructed the nurse to draw Myers’ blood for testing.  The police did not secure a warrant to draw or search drunk, unconscious Myers’ blood.

The Court granted the appeal to consider the lawfulness of a warrantless blood draw conducted upon a motorist who, having been arrested for DUI, had then been rendered unconscious by medical personnel before a police officer provided O’Connell warnings and before the officer requested the motorist’s submission to a chemical test. The Philadelphia Municipal Court, the Court of Common Pleas, and Superior Court all held that a blood draw conducted under these circumstances is impermissible, and that the results of the derivative blood test are accordingly inadmissible at trial. Because the seizure of Myers‘ blood violated Pennsylvania’s implied consent statute, 75 Pa.C.S. § 1547, and because no other circumstances justified the failure to obtain a search warrant, the Court affirmed all of the lower courts’ decisions suppressing the blood evidence.

At the intermediate appellate level, in Commonwealth v. Myers, 2015 PA Super 140, 118 A.3d 1122 (Pa. Super. 2015), the court stated that Subsection 1547(b)(1) “provides a driver under arrest with [a] statutory right of refusal to blood testing.” (quoting 75 Pa.C.S. § 1547(b)(1)).  Because Myers was unconscious at the time that Officer Domenic requested the blood draw, the court observed that Myers “could not claim the statutory protection” of Subsection 1547(b)(1). 

Superior Court also relies upon Missouri v. McNeely,     U.S.    , 133 S.Ct. 1552, 185 L. Ed. 2d 696 (2013), holding that, “because police did not act pursuant to the implied consent law until 4:45 p.m., after Myers had been rendered unconscious by an intervening cause that occurred subsequent to his DUI arrest and transport to the hospital, … McNeely controls here.”  Like the trial court, Superior Court determines the Commonwealth failed to demonstrate the impracticability of obtaining a warrant prior to the blood draw. Therefore, the panel held that the trial court correctly affirmed the Municipal Court’s order granting Myers‘ motion to suppress.

On appeal to the Supreme Court, the Commonwealth argues that the implied consent statute establishes a valid exception to the warrant requirement of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, and that the statutory right to refuse chemical testing does not apply to unconscious arrestees. The Commonwealth’s central premise is that, under 75 Pa.C.S. § 1547(a), “any individual who exercises the privilege of driving in Pennsylvania has consented to a blood draw.” 

Although a conscious individual may refuse to submit to a chemical test, the Commonwealth asserts that “[t]here is no law in Pennsylvania that treats an unconscious defendant as having revoked his already-provided consent.”  The Commonwealth faults the Superior Court for “distinguish[ing] between conscious and unconscious drivers without any analysis.” (emphasis omitted). In the Commonwealth’s view, an arrestee’s state of consciousness matters only to the extent that “[u]nconsciousness . . . prevents the suspect from refusing the blood draw,” but it “does not somehow negate his existing consent.”  The Supreme Court categorically rejects this argument.

A review of the DUI informed consent issue is a good place to start.  Consistent with 75 Pa. C.S.A. §1547(c) the Pennsylvania’s Motor Vehicle code imposes evidentiary admissibility standards for blood tests consensually drawn without a warrant. Pennsylvania’s Motor Vehicle code addressing driving under the influence (“DUI”) of alcohol or controlled substances, 75 Pa. C.S.A. § 3802 (b)(c) & (d) each contain as an essential element of the criminal offense a defendant’s blood alcohol concentration level.

The grading provisions of the Pennsylvania Motor Vehicle code, 75 Pa. C.S.A. §3803(d), as they relate to DUI charges, identify in subsections 1 through 4 that any individual who is under investigation for violating 75 Pa.C.S.A. § 3802, et seq., (accusing an individual of operating a motor vehicle under the influence of drugs or alcohol such that they are incapable of safely driving) and refuses to voluntary submit to a warrant-less blood test, is to receive enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.

Pennsylvania’s implied consent law requires motorist who drive on our roads to automatically consent to a blood draw if under police investigation for alleged DUI.  75 Pa.C.S. § 1547(b)(2) (prescribing the “duty of the police officer” to inform a DUI arrestee of the consequences of refusal); Pa. Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873, 877 (Pa. 1989) (“The law has always required that the police must tell the arrestee of the consequences of a refusal to take [a chemical] test so that he can make a knowing and conscious choice.”)  If the operator refuses, no blood draw can take place.  Now after, Birchfield, the motorist can not be criminally penalized for refusing the blood draw.

By operation of the implied consent statute, once a police officer establishes reasonable grounds to suspect that a motorist has committed a DUI offense, that motorist “shall be deemed to have given consent to one or more chemical tests of breath or blood for the purpose of determining the alcoholic content of blood or the presence of a controlled substance.” 75 Pa.C.S. § 1547(a). Notwithstanding this provision, Subsection 1547(b)(1) confers upon all individuals under arrest for DUI an explicit statutory right to refuse chemical testing, the invocation of which triggers specified consequences. See 75 Pa.C.S. § 1547(b)(1) (“If any person placed under arrest for [DUI] is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted”); Eisenhart, 611 A.2d at 683 (“The statute grants an explicit right to a driver who is under arrest for [DUI] to refuse to consent to chemical testing.”).

The Court rules that under this statutory scheme, a motorist placed under arrest for DUI has a critical decision to make. The arrestee may submit to a chemical test and provide the police with evidence that may be used in a subsequent criminal prosecution, or the arrestee may invoke the statutory right to refuse testing, which: (i) results in a mandatory driver’s license suspension under 75 Pa.C.S. § 1547(b)(1); (ii) renders the fact of refusal admissible as evidence in a subsequent DUI prosecution pursuant to 75 Pa.C.S. § 1547(e); and (iii) authorizes heightened criminal penalties under 75 Pa.C.S. § 3804(c) if the arrestee later is convicted of DUI.

Previously, in very certain terms, Pennsylvania’s Supreme Court has held that, in requesting a chemical test, the police officer must inform the arrestee of the consequences of refusal and notify the arrestee that there is no right to consult with an attorney before making a decision. See O’Connell, 555 A.2d at 877-78.12Link to the text of the note “An arrestee is entitled to this information so that his choice to take a [chemical] test can be knowing and conscious.” Id. at 878. The choice belongs to the arrestee, not the police officer.

In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances. The standard for measuring the scope of a person’s consent is based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent. Such evaluation includes an objective examination of the maturity, sophistication and mental or emotional state of the defendant. Gauging the scope of a defendant’s consent is an inherent and necessary part of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the product of coercion, deceit, or misrepresentation.  Commonwealth v. Smith, 621 Pa. 218, 77 A.3d 562, 573 (Pa. 2013).

The case of Commonwealth v. Evans, 2016 PA Super 293  (December 20, 2016), is the first major Pennsylvania Appellate Court decision discussing Pennsylvania’s DUI statute, the Implied Consent Law (“O’Connell Warnings”), and the prosecutor’s burden of proof at the suppression hearing.  Evans holds that a defendant does not have to prove they gave consent only based upon the threat of a more severe criminal penalty (jail and further license suspension).  Rather, the statute itself establishes this burden and the Prosecutor must rebut that legal presumption.  Because there is no ability to rebut a presumption of illegitimate consent when threatened with enhanced jail penalties, all motions to suppress must be granted.

Myers takes Evans one step further, finding that “Subsection 1547(b)(1) does not distinguish in any way between conscious and unconscious individuals, but, rather, provides the statutory right of refusal to “any person placed under arrest” for DUI. 75 Pa.C.S. § 1547(b)(1) (emphasis added). By its plain meaning, “any person” necessarily includes an unconscious person. Accordingly, we hold that Myers had an absolute right to refuse chemical testing pursuant to the implied consent statute, that his unconscious state prevented him from making a knowing and conscious choice as to whether to exercise that right, and that the implied consent statute does not authorize a blood test conducted under such circumstances.”

Riding the Bridges of South Jersey And Valley Forge

My administrative law blog followers are eagerly awaiting a new blog. The summer months have been slow with regard to new legal decisions or laws and/or regulations that substantially change my practice.

The various health related professional board’s summer meetings have kept me very busy.  After a licensing board meeting, clients’ matters that are on the agendas – accepting the decision of a hearing officer, approving an consent agreement, or ordering a Mental and Physical Evaluation – generate a lot of work.

Great weather affords me the opportunity to ride my bike a little bit more.  Averaging 125 miles a week takes me across many bridges, rivers, and bike trails, while traversing local county roads. My escapade to the Lancaster County Courthouse via West Chester and the Brandywine Valley was well documented.

Down the Shore, calm winds and little rain allows me to ride throughout the Garden State Parkway’s mainland beach communities. Leaving Margate, Atlantic County, I ride through Somers Point, along the Great Egg Harbor River up to Mays Landing. Turning left on Route 50 (The Pine Barrens Byway), I have had the pleasure of being joined or joining other riders into Cape May County.  We ride to Marmora, or across to Milmay, Estell Manor,  Tuckahoe, Corbin City, Ocean City, and back through Longport New Jersey.

The pictures reveal the geographic flatness of these rides. The hills are man-made and provide a reasonable perch through which one can take in mother nature’s wonders. The artificial elevations are gentle, well paved, and are really fun way to end the ride.

The South Jersey Pine Lands provide a wonderful misty fog, with a crispy pine flavor, in the early morning cool air. This differs from the Schuylkill River Trail, the new pedestrian bridge at Route 422, and riding through Valley Forge Park at sunrise.  It’s a hard choice as to which is a better ride; 50 to 60 miles of flats in just over two hours, or 25 miles of hills and the history of the Valley Forge and Brandywine valley in the same amount of time.

The one constant in all of these rides are the bridges. Large or small, tall or short, long or brief, they allow walkers and riders to go from one place to another without which the rides could not take place. It’s just great to be out there, getting energized and ready for each day.
 Call me to discuss you licensing matter.

Northampton County’s 1861 Court Room!!

Finding the diamond in the rough. That describes my recent drive to the Northampton County Courthouse. As my law practice takes me from the Philadelphia’s suburban counties to northeastern Pennsylvania, I routinely travel on the Pennsylvania Turnpike and its Northeast extension.
The drive this July week was rough. The weather forecast proved accurate; rain and fog through the Lehigh Valley. It was raining so hard, I missed my exit off Rt 476E at Rt 22 E. I drove an additional 20 miles each direction, turning around in Jim Thorpe. (I love the Carbon County Courthouse – see my other blogs – but I was not going there today.)
 I was uncharacteristically late, arriving at 9:25 am for a 9:00 am hearing.  I was otherwise safe.  The judge was extremely gracious and polite. The case was handled quickly.  Opposing counsel – a local assistant district attorney – offered a tour of the courthouse as I expressed my appreciation for our hearing taking place in the old courthouse, courtroom 3, as compared to the new 2004 building.
The county website states, “The original court house was built in  1764. Nearly a century later and after the courthouse had experienced a number of historical events, which included being used as a barracks by Revolutionary troops, a group of citizens petitioned for a new County Courthouse at a different location. On August 23, 1860, the County Commissioners decided to accept land offered at a price of $1.00 that was located several blocks west of the original facility.   A new brick structure was later built on a steep hill at a cost of $53,000. The first term of court was held in the new facility on June 18, 1861.  Since then, two additional wings were constructed to accommodate the growth of Northampton County and satisfy the judicial needs of the expanded population.  The second part of the courthouse was built in 1978 and the third in 2004. “
I was interested in the 1861 building and court room 1.  Finished at the out set of the Civil War.   Wow!! A majestic legal theater, refurbished in 1978 to match the import to the community when the courthouse was built. Original woodwork, plaster, and paint are renewed. County Commissioners rightfully chose to not clutter the court room with of a phalanx of computer cables, microphones, and other modern day accoutrements that clutter some other county courtrooms in which I practice.
The pictures below reveal the courtroom’s grand entrance, judicial bench, and the jury box of the times. The remarkable woodwork and attention to detail immediately reveals itself. The artisans of Pennsylvania’s counties knew their work would be on display at every important and public event of the times. The honor and respect they earned working for their local government on the most important building in the county.

Call a Lawyer, Not the Licensing Board, When Contacted by Board Counsel or Investigators

My administrative law practice takes me before many of Pennsylvania’s licensing boards and in hearings that address a variety of disciplinary actions.  It is during Pennsylvania’s professional licensing boards’ bimonthly meetings that disciplinary matters are commenced, reviewed, or finalized.  This is why after a given board’s monthly meeting I typically receive a wave of calls from new clients, mail that initiates disciplinary action in pending cases, or final decisions in cases.

Potential disciplinary actions a board may commence include: 1) reciprocal disciplinary actions; 2) emergency petitions to immediately take a license; 3) objections to license applications; 4)  approval of different consent agreements; 5) approval or rejection of hearing officer’s proposed adjudications; and 6) reviewing cases sent back from the Commonwealth Court for issuance of revised disciplinary action. Also, several boards have subcommittees that approve probable cause petitions compelling licensees to undergo mental and physical of evaluations.

After bimonthly board meetings I receive calls from both current or potential clients inquiring “What I should do? Who should I talk to?  or What information should be disclosed?   Many callers disclose prior conversations with board counsel, investigators, PHMP assessors, or other board representatives. I cringe when I hear this.

 

Board representatives, prosecutors, administrators, and/or medical professionals do not represent the licensee. These people are tasked with enforcing board regulations. They are tasked with complying with each and every administrative procedural requirement (of which the licensee has no idea). They are tasked with securing information against the licensee who is potentially, or actually, subject to disciplinary action. These people do not look out for the best interest of the licensee.  DO NOT TALK TO THESE PEOPLE ABOUT YOUR CASE, FACTS, OR MEDICAL CONDITIONS.  THEY WRITE EVERYTHING DOWN.

 

Board administrators and PHMP office staff are not sophisticated licensed professionals. They are unfamiliar with the actual medical issues, legal issues, or licensing process. They merely perform administrative functions. They lack any authority to adjust, regulate, or modify any correspondence.  Relying upon statements from these administrative level workers is frustrating and leads to incorrect practices.

 

I have heard on many occasions board clerical staff and social workers advise licensees and/or license applicants to cooperate – give statements or do other inaccurate suggestions – that are not in the licensees best interest.  Administrative workers routinely do not recommend hiring counsel to secure a better, more complete, or correct legal advice on how to respond to the legal correspondence  just received in the mail.

 

That is why I say do not contact these boards, rely upon what any administrator says, or even hope that they give you correct advice. Call an attorney and secure proper legal advice.  The best analogy I can give is: Do you call a doctor’s office and follow medical advice dispensed by the phone receptionist or want to talk to RN, LPN, or M.D.?  The obvious answer is no.  So why would you do that when calling a licensing board about your professional license you utilize every day?

 

Please call me to discuss the recent board ordered disciplinary correspondence you just received!

My County Practice – The Licensee Attorney on the Road

It is a cool, crisp 78° as I gander at the Pennsylvania Turnpike’s Blue Mountain and Kittatinny tunnels cutting through the middle of Pennsylvania. It’s 95° and 100% humidity in Philadelphia. The Blue Mountain Tunnel is one of two tunnels through Blue Mountain in Pennsylvania, located west of Newburg. It is one of seven tunnels completed for the Pennsylvania Turnpike mainline, … The Blue Mountain Tunnel is 600 ft (180 m) to the east of the Kittatinny Mountain Tunnel, separated by the Gunter Valley.

As I drive through these Pennsylvania mountains, including the tunnel at Tuscarora Mountain, I marvel at Pennsylvania’s endless greenery. Towns such as McCalloch, Lynnsburg, Sheepskin Hollow, and Mount Union dot the landscape but are surrounded by majestic trees and forests..

On Route 99 I snake through the mountain passes of Blair County. Smoke screened with early morning fog, panoramic views give way to county towns spread along the Juanita and Little Juanita River valley. Route 99 was carved out of the Lock Mountain. Its rolling hills provide necessary access to the historic railroad town of Holidaysburg. Local roads are named after long since passed farm owners who settled this area. Canoeing ramps, hiking and biking trails shunt off from the many state park.

Driving up Bald Mountain, through Phillipsburg, I left Tyrone behind. I scamper up Bald Mountain, through the pass, on the way to Clearfield County. Route 350 welcomes me with Victorian style homes. Phillipsburg is a brief one  light hamlet. Leaving Phillipsburg, I approach the Upper Susquehanna River and Clearfield Creek. Here the rolling mountains roads are dotted with roadside homes, businesses, and flow slowed by summer road construction.

Arriving in Clearfield County I am surprised by the size of the borough. I am taken aback at the age of the courthouse. Pictured below, its courthouse is regal, sturdy and welcoming.

 

 

 

 

Pennsylvania’s Accepts the Interstate Medical Licensure Compact Act

Pennsylvania has finalized its membership in the Interstate Medical Licensure Compact Act.  Found at 63 P.S. §395.2, the General Assembly authorizes the Governor to execute the Interstate Compact for Medical Licensure of non-Pennsylvania based physicians.  As I wrote previously last summer, the proposal substantially strips Pennsylvania medical licensees of many due process rights.

Pennsylvania based physicians who seek licensure in member states become subject to those jurisdictions’ criminal and disciplinary process, investigations and actions.  My prior blog addresses the significant pit falls of that process.  Reviewing the definition section of the enabling legislation (which is a nationwide standard set of definitions and procedures) helps understand how and why Commonwealth Pennsylvania physicians seeking multi-state licensure are at substantial exposure to extra jurisdiction disciplinary action without the many protections of Pennsylvania’s administrative due process.

A physician’s medical license, granted by a member state to an eligible physician, is subject to this new law’s legal definitions. First and foremost is the definition of conviction of any type of criminal act. Conviction means: a finding by a court that an individual is guilty of a criminal offense through adjudication, or entry of a plea of guilt or no contest to the charge by the offender. Evidence of an entry of a conviction of a criminal offense by the court shall be considered final for purposes of disciplinary action by a member board.  Potential criminal acts — any “Offense” means: a felony, gross misdemeanor or crime of moral turpitude.

At issue for Pennsylvania and/or New Jersey doctors is the difference in criminal versus administrative matters.  A DUI in Pennsylvania is criminal versus New Jersey it is administrative.  There are many matters in Pennsylvania that result in a summary resolution, not a felony and misdemeanor conviction.  What is a gross misdemeanor?  The Act does not differentiate.  In Pennsylvania, criminal charges are brought after a  preliminary hearing.  Many states proceed by indictment.  The Act does not distinguish enrollment in a non-conviction based diversion program.  How difference states render disciplinary action based upon different standards of conduct (from that of Pennsylvania Medical Board) and resolution – which each member state will now have to unilaterally accept – is significant.

These huge differences apply to all physicians.  Who is a physician.  Physician under the Act means 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.

 

Licensees must identify a state of primary licensure.  That state will verify eligibility, conduct background checks, and maintain fingerprint and biometric data. However, these investigations and parameters are set through federal regulations, and not individual state law. Expedited licensure issued by the central processing state makes that interstate commission more powerful than the individual primary state. The interstate license is limited to a specific period of time in the same manner as required for the physicians holding a full unrestricted license within that state. And expedited license obtained through the compact shall be terminated if the physician fails to maintain a license in the state of principle licensure for a non-disciplinary reason, without re-designation of a new state or principle licensure.

Because there’s a coordinated information system, Pennsylvania’s law allows member boards to report to the interstate commission any public action or complaints against a licensed physician who has applied to receive the expedited license through the compact. Member boards report disciplinary or investigation information and determine if it is necessary and proper basis for disciplinary action by the interstate commissions. Member boards may report any non-public complaint, disciplinary or investigative information to the commission. Member boards will share complaint or disciplinary information.. This means even the most minimal initial disciplinary investigatory claims, unfounded, without final disciplinary decision, by a member state is automatically reported to the entire commission. Disciplinary action from the commission, not an individual state jurisdiction, could be the basis for disciplinary action. How does the physician defend himself or herself against this.

The Act specifically says “any disciplinary action taken by any member board against a physician license 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 practices act or regulations in that state. Such a disciplinary action by one state may be deemed conclusive as to a matter of law in fact, allowing the member jurisdictions to impose the same or less or sanction or pursue a separate disciplinary action against position under its respective medical practices act, regardless of action taken and other member states.

 

Call me about your license application, conditional approvals, of pending discipline.

A Fringe Benefit of Practicing Law in the Commonwealth of Pennsylvania

There are many benefits to being a licensed, practicing lawyer in this country and Commonwealth.  One fringe benefit (and I mean fringe) of practicing law in the Commonwealth of Pennsylvania is driving through and to the counties in this jurisdiction.  Practicing in Delaware, Chester, York, Lebanon, Dauphin, Luzerne, Montgomery, Lackawanna, Berks, Bucks, Carbon, Lancaster, Northampton, Monroe, Clearfield, Blair, Center counties, I drive throughout the Commonwealth.  The word Commonwealth does not do justice to the beauty of the counties in which I travel and the courthouse in which I practice.

Monroe County Court House Square

 

One recent cool, spring day I had the pleasure of a relaxing drive from my home in the suburbs of Philadelphia to the Monroe County Courthouse in the quaint hamlet of Strousburg, Pa.  I left my home at 7:00 am.  By 7:45 I entered the Lehigh Valley and was approaching the scenic Delaware River Water Gap area.  I left Philadelphia in a heavy fog, arriving in the Lehigh Valley as the fog began dissipating from the  mountain valleys.   Steamy slopes and long shadows were cast as the sun climbed over the hills and heated the morning sky.  Route 78’s mountain passes were freed from their foggy blanket revealing the height of the tree-topped slops.  What a peaceful ride.  The rich majesty of Penn’s Woods (the translation of the word Pennsylvania) became evident.

The coffee shop on the square at the Monroe County Court House, Strousburg, Pa

Home made scones, croissants, and danish.

Upon arriving in Monroe county and the courthouse square, I had the pleasure of stopping for coffee at the café duet. Pictured above, I partook in a croissant and perfect cappuccino in the a sun-lit square.  I could have been in any hamlet or borough in another country.  I, however had the pleasure of attending to my profession, take care of a valued client, and being given the opportunity to enjoy Monroe County.

In between mentally organizing my case, I day dreamed about the incredible mountain bike riding trails that snaked through the various gorges, streams, and mountain passes. Exercising both my mind and body is a wonderful activity I engage in on a daily basis.  I will be in Center, Blair, and Clearfield counties over the next several weeks.  I will cherish my time and my profession while I enjoy the best the Commonwealth has to offer this summer.

Call me about your legal matter.

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.
%d bloggers like this: