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.
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The document requirements for the professional license applicant or during renewal.

I receive many calls inquiring about what legal documents relating to prior arrests, convictions, or investigations need be attached to a professional license original or renewal application. These questions come from qualified individuals with some prior criminal entanglements which may/must be disclosed to a licensing board.  Disclosure of criminal convictions, felony arrests, or prior disciplinary actions are typically required upon initila application regardless of when they occurred. Renew application are more difficult to address.

Understanding what must be disclosed is the first step. From the criminal record standpoint, pending misdemeanor cases (typically DUI’s) at renewal need to be disclosed.  Open and pending felony charges for which there is no conviction, also need to be disclosed at renewal or in the initial application. Misdemeanor convictions, ARD, or other non-trial dispositions that have not been expunged need to be disclosed at both times. Only expunged matters based upon enrolling in ARD or a dismissal need not be disclosed.  Disclosure requires production of a certified criminal record secured from the county courthouse in which the manner was handled.

Immediate disclosure is not required of any initial contact with the law.  It is only upon renewal or initial licensing that the criminal contacts must be disclosed.

Any pending professional disciplinary action may need to be disclosed. “May” depends on the nature of the pending investigation. If the investigation is a PHMP referral to the VRP and the licensee has not elected to enroll, disclosure is not required as there is no pending disciplinary action. Even if there is a petition for a mental and physical valuation for which a probable cause screening committee has required a mental and physical evaluation, if the results of that evaluation have not come back yet, there is no pending investigation. There’s been no formal disciplinary action filed.  As such, disclosure is not required.  Formal disciplinary action would need to be disclosed.

Any decision to enter the PHMP through the VRP, with a signed consent agreement that is been entered as a Board order from a licensing board, requires disclosure. If a licensee has decided to enter the VRP disclosure maybe necessary. Here, disclosure is required to other states for which the licensee hold a license and is typically a condition of the PHMP/VRP consent agreement.

Mere contact by Commonwealth or other state’s narcotics enforcement officers or Pennsylvania professional board investigators regarding workplace related issues, for which neither a criminal prosecution nor state board investigation has commenced, does not require disclosure. Mere contacts, without the filing of formal charges or disciplinary action do not constitute an investigation. This is much more the case in the criminal context, which must be initiated by the filing of a criminal complaint.

This blog focuses on the reporting requirement in the Commonwealth of Pennsylvania. Disciplinary or criminal action from outside the Commonwealth may require reporting in that home state that is different from the Commonwealth of Pennsylvania’s reporting requirements.  Formal filing of criminal charges outside the Commonwealth of Pennsylvania by other states or the federal authorities will require reporting in Pennsylvania if felony charges are filed and you are in your renewal period.  Providing copies of the documents in relation to that action or charges will be necessary. The same applies for disciplinary action by other state licensing boards.

Medicaid and Medicare preclusion letters may constitute an investigation by an agency requiring disclosure. Obviously, the preclusion letter would be based upon conduct of which the licensee has already been aware, charged criminally, or may constitute the basis of a pending disciplinary action. These preclusion letters nonetheless may require reporting to your licensing board.

Please call me to discuss any of the issues presented by Commonwealth of Pennsylvania or other states or federal authorities disciplinary or criminal action that affects your Pennsylvania professional license.

States’ Legalization of Pot and How Pennsylvania’s refusal to Legalize Pot Effects You

Other states’ legalization of marijuana has had a huge impact on Pennsylvania residents. Pennsylvania has not taken any steps to legalize possession or personal use of marijuana.  Neighboring state’s legalization and lax federal enforcement has resulted in Pennsylvania authorities engaging in a heightened enforcement atmosphere, not relaxed one.

For example, recently a suburban Philadelphia doctor and his daughter were charged possession with intent to deliver marijuana (“PWID”) after discovering that they were growing marijuana in their house.  They were caught after the doctor began selling his home-grown marijuana to his patients. While marijuana may serve some medicinal purposes, easing or slowing the progression of glaucoma, Pennsylvania has yet to allow medical marijuana. As such, a Pennsylvania doctor’s possession, selling and illegal prescribing pot to his patients for a suggested medical purpose is illegal.

The number of plants possessed in the house is also a big issue. Twenty eight marijuana plants were seized from the doctor’s home along with cash and contraband.  These illegal plants in a personal residence being used for criminal purposes subjects the doctor’s Haverford Township home subject to forfeiture.  The house was being utilized to engage in a criminal enterprise.

Whether you agree or disagree with the slow legalization of pot in Pennsylvania, it currently is, and always will be, a crime to sell pot if you are not a properly licensed entity.  Eventually, there will be a significant regulatory scheme in place to in Pennsylvania to buy and possess personal use cannabis.  Look to California, Arizona,and Colorado for examples.  As such, a doctor will never be allowed to grow his own pot and sell it to his patients for his prescribed medical treatment.

On the DUI front, the Arizona Supreme Court recently rejected a marijuana DUI prosecution.   In that matter, an individual was charged with driving under the influence of marijuana because traces of THC remained in his bloodstream several days after he legally smoked marijuana. A blood test revealed the presence in his blood the cannabis metabolite carboxy – THC.   However, this chemical does not cause an impairment.  As such, absent an impairment, the Arizona State Supreme Court ruled the individual was not “incapable of safe driving”.  This is called the “impairment” rule — a person must be actually impaired to be guilty of the DUI offense.  The charges were dismissed.

Pennsylvania does not follow this rule.  Pennsylvania is a “per se” violation state.   Pennsylvania law only requires the mere presence of the cannabis metabolite in a Pennsylvania automobile operator’s blood during motor vehicle operation for a violation of 75 Pa C.S.A. §3802(d) to be found.  This rule does not matter if the operator of the car is a resident of another state.  If you drive on Pennsylvania’s roads, you are subject to Pennsylvania law.  Obviously, the car must be legally stopped or investigated for another motor vehicle violation, and the THC is discovered, before a guilty verdict may be found.   The same mere presence law applies to all Pennsylvania professional license cases and health care work place rule violation cases.

New Jersey and Arizona follow an impairment statute which requires an expert to testify that any illegal substances in the blood rendered the person “impaired” and not able to operate a motor vehicle safely.  Pennsylvania requires the government to only present a drug report showing the presence of the drug.  As such, in Pennsylvania a person could be found guilty of DUI if they legally use medicinal or recreational marijuana outside of Pennsylvania but is stopped in Pennsylvania for some motor vehicle violation and the stop results in a blood draw due to suspicion of DAI or DUI.
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The Pennsylvania licensing boards will follow Pennsylvania criminal statutes regarding possession and use of marijuana laws in Pennsylvania, not other jurisdictions. The lack of impairment will be irrelevant for any Pennsylvania licensing board investigation of illegal drug use or possession.  Please call to discuss your case.
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The VRP and its Consequences

A standardized contract with a three-year term similar to requirements outlined by PHMP Board ordered Consent Agreements is utilized. Random Observed Body Screens are used to determine abstinence is being maintained. (We may require urine, serum, blood, saliva, perspiration or hair testing in fulfillment of this requirement.) 

(This Quote is taken from a Pa Licenseing Board website discussing the VRP administered by the PHMP)

In preparation for today’s blog I searched the Internet for comments and questions about Pennsylvania’s various licensing boards’ voluntary recovery programs (“VRP”) and the manner in which they entice professionals with drug or alcohol use issues to enroll in their programs. I found numerous professionals concerned about the arduous process, high cost, and undisclosed lengths of time as a professional they were kept from working. Complaints centered on expensive mandatory in-patient treatment or weekly drug testing protocols, work place monitoring agreements, and an inability to even interview for a job unless approved by capricious and degrading case workers. Each comment concluded with the professional wishing they consulted an attorney prior to enrolling in the program.

The nature and manner VRP case workers “trick” professionals with no criminal record or an ARD to enroll in the program is very creative. Sometimes, the standard letter stating with “It has come to our attention you may be suffering from an impairment” is mailed. Other times threatening and provocative telephone calls unilaterally scheduling appointments occur. Or, the best, case workers demand provisionally licensees show up in Harrisburg to sign unknown documents that can’t be mail. Under each of these circumstances the licensee is scared, possibly losing their job, and not advised of the full scope and breadth of the VRP agreement into which they are almost forced to enter.  They are given ultimatums on times to respond and returned signed documents with no explanation of the long term implications of the legal stipulations they are acknowledging.

The legal problem is licensees do not understand the terms and conditions of the VRP agreement and the legal footing upon which the agreement is based. Sections 63 P. S. 224(a)(2) and (b)(4) allow the Board to refuse, suspend or revoke a license if the licensee “is unable to practice professional nursing with reasonable skill and safety to patients by reason of … physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination, so long as such dependence shall continue.” As part of submitting to treatment, the Board is given the authority under Section 14.1(c) of the Law, 63 P.S. § 224.1(c), to require a licensee as a condition of being allowed to continue to practice to enter a VRP Agreement or face public disciplinary proceedings for his or her impairment.

The significance of these provisions, when read together, is the terms of the statutorily mandated VRP agreement. Every VRP agreement requires the licensing to stipulate among many things that:
1) The Board is authorized to suspend, revoke or otherwise restrict the license under 63 P.S. § 224(a)(2);
2) The licensee is unable to practice the profession with reasonable skill and safety to patients by reason of illness, addiction to drugs or alcohol, or mental impairment;
3) The disciplinary action is deferred and may ultimately be dismissed pursuant to the impaired professional section of the Law, 63 P.S. § 224.1, provided the licensee progresses satisfactorily in an approved treatment and monitoring program and complies with the terms and conditions of the VRP Agreement .

It doesn’t matter what time or how long after you enter into the VRP program that you object to the terms of the VRP or decide to not perform in accordance with the Agreement. Once the licensee violates the agreement, the Board moves to suspend or revoke the license. The basis for this is simple: The licensee when they entered the VRP stipulated that they are unable to practice due to an impairment, which inability may only be concluded to be over by the VRP case worker. As such, the licensee has given up their entire defense that they are not impaired or a safety risk. Case law says that any expert testimony that the licensee post VRP enrollment is “cured” or not a danger to the community and can practice safely will be found to be not credible.
In cases involving a single DUI or a single positive drug test of any scheduled narcotic for which there is no medicinal basis, entry into the VRP is an acknowledgment that the licensee has a drug addiction or problem.  It is this drug or alcohol problem that must be candidly acknowledged, treated, and for which inpatient and outpatient treatment with drug testing will be required. All costs will be born by the licensee.

If the VRP comes knocking two years after the alleged DUI, which occurred after a family marital event, lets say, and you really have no drug or alcohol issue but the VRP is chosen rather than face “possible” public disciplinary action, the licensee has now stipulated to having a drug addiction for which they are unable to practice safely. Having agreed to this, every VRP licensee is thereafter unable to seek employment, continue their employment, or be hired by a job without the VRP notifying the employer. As well each employer could be required to approve a workplace monitor of the licensee who will report to the VRP case worker. This employment will also be delayed after SATISFACTORILY COMPLETING 30, 60 or 90 days inpatient treatment, which cost will be born by the licensee.

The issues become, why should the VRP be chosen, by whom, and under what circumstances?  If some of the facts discussed above are familiar to you and your case, call me to discuss your options and the agreement being presented to you.  Please understand the legal consequences of entering into the VRP.

Summer 2013 DUI Update

So far this summer, Pennsylvania’s Superior Court issued two very significant DUI decisions. The first ruling was handed down the case of Commonwealth v. Musau. The second decision was presented in Commonwealth v. Barker.

In Musau the trial court found Musau guilty of driving under the influence of alcohol in violation of 75 Pa. C.S.A. §3802(a) (general impairment), his a second offense, and graded the conviction as a first-degree misdemeanor pursuant to 75 Pa C.S.A. §3803(b) (4). The trial court sentenced Musau to ninety days to five years in jail.

On appeal Musau argued there was a conflict between § 3802(a) (which carries a maximum of six months supervision) and §3803(b) (4) (that identifies a violation of § 3802(a), 2nd offense, as a first-degree misdemeanor which carries a potential five years supervision). In light of the statutory conflict, Musau argued his supervision could only be ninety days and not five years. Superior Court agreed.

After reviewing the sentencing provisions of the specific DUI statute, 75 Pa. C.S.A. §3802, et seq., and the general sentencing parameters of the criminal code under 18 Pa. C.S.A. §106(b) (6), (e), the court concluded that if an individual is only found guilty of the “general impairment” provision of §3802(a) and not §3802(c) or (d), the maximum potential supervisory sentence is six-months and not five years. The important part of this case is just that: if a court finds a person who may have refused the blood or breath test guilty under § 3802(a) only, as a second offense, and not § 3802(c) or (d), the sentencing maximum is six months, not five years.

The lesson here is to specifically ensure any refusal charges §3802(d) are either dismissed or withdrawn at a preliminary hearing in the counties or a finding of not guilty in Philadelphia Municipal Court. Thereafter, the trial court may only, if the evidence is sufficient, find guilt under §3802(a), a general impairment conviction. Sentencing will then be governed by the DUI statute and ninety days, not the Crimes Code.

The second case is Commonwealth v. William Barker. The case began as a garden-variety motor vehicle infraction, typical traffic stop, and suspicion of DUI.  However, competent counsel convert the case into a discussion of motorists’ right to an alternative blood tests under 75 Pa. C.S.A. §1547(i) and a police officer’s violation of the refusal statute, not the motorist’s.

For those unaware, 75 Pa. C.S.A. §1547 is the Pennsylvania implied consent provision of the Pa motor vehicle code allowing for the police to request the operator of a motor vehicle suspected of DUI to submit to a breathalyzer test or have their blood drawn at an appropriate medical facility.  If they refusal the criminal sentence may be worse and at least a 1 year license suspension separate from the DUI may follow.

The appeals court addressed §1547 in the context of a §3802(d) refusal case. §3802 (d) is the DUI refusal statute law enforcement may charge individuals who have “refused” to submit to any chemical test requested pursuant to §1547. 75 Pa.C.S.A. §3802(d) (2) defines driving under the influence as follows: An individual may not drive, operator, or be in actual physical control of the movement of the vehicle under the influence of drugs or a combination of drugs to a degree to which impairs the ability to drive safely, operate or be an actual physical control of the movement of the vehicle.

Barker testified that he advised the investigating officer he would take any blood test that would establish his innocence, including paying for any test. Barker testified that he suffered a prior medical infection from the hospital to which he was taken, spending seven days there. At trial Barker was found guilty of violating §3802(d) (2) and was sentenced as a refusal.
Barker appealed the guilty finding under the refusal statute arguing that 75 Pa.C.S.A. §1547(i) specifically states: Request by driver for test: Any person involved in an accident or placed under arrest for violation of section… 3802… may request a chemical test of his breath, blood or your peers such request shall be honored when it is reasonably practical to do so.

At trial, the arresting officer did not testify that it was not reasonably practical to take Barker to a different location for the blood draw. Superior Court found this important. “Although section §1547 delineates the tests that may be used and the manners within which the tests must be conducted, §1547(i) does not indicate what constitutes ‘reasonably practical’ for an alternative test and an officer’s ability to reject a motorist’s request for an alternative means of testing at the time of arrest.” Stated another way, the court concluded that an investigating officer “shall honor a motorist’s request when it is ‘reasonably practical’ to do so”.

The court emphasized that the statute “presumes the validity of the motorist’s request and vests the officer with the discretion to decline the request for alternative testing only if the circumstances render the testing incapable of being put into practice with the available means”. The court went on to state that the statutory language does not continence an officer’s “arbitrary refusal” to decline an alternative test request.

The officer may decline the alternative test only if the test requested is not within the means available at the time the testing is sought. While the statute protects the arbitrary whims of motorists who might demand alternate forms of testing, the statute does not allow arbitrary conduct of the police officer in denying motorist’s requests when practical.

Consequently, the court stated that when an arresting officer arbitrarily refuses to allow alternative testing a motorist requests he deprives that motorist evidence admissible in any subsequent prosecution under § 3802, not just those prosecutions under 3802(c) or (d). This is significant in that in any DUI prosecution, an officer must comply with a request for an alternative testing at a different hospital or in a different manner, based upon an appropriate objection, medical condition, or phobia, if such alternate testing is practical under the circumstances.

The court found that when the arresting officer arbitrarily refused Barker’s request for an alternate test which would have produced evidence that may have proven his innocent, the officer substantially impeded Barker’s due process rights. Having found the police, not Barker, violated  § 1547, the appeals court concluded that the arresting officer’s “refusal to honor the statute’s provisions yields a resolution that deprived Barker of admission of evidence that, had it been available, would have been relevant to the charges at issue.” Such violation undermined Barker’s ability to counter the Commonwealth’s allegations and, therefore, warranted granting Barker’s appeal and dismissal of all charges.

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