Alcohol Use Disorder — Continuing Condition and Safe to Practice

Many professionals consume alcohol in a moderate and temperate manner. Reasonable, social alcohol consumption that results in a driving under the influence criminal charge is an unfortunate event. The criminal consequence and interactions with the justice system are necessary impediments to excessive drinking.

However, reasonable social drinking does not mean licensed professionals suffer from a drug and alcohol addiction or impairment that is both continuing and rendering the professional unsafe to practice their profession. It is these two statutory requirements the PHMP, PAP, and PNAP, ignore when enticing and scaring licensees to enroll in the PHMP monitoring program. PHMP’s threats and intimidation (PHMP Scare Tactics) when combined with licensees’ anxiety and stress from the criminal case create the perfect storm for licensees to make ill-informed and legally incorrect decisions regarding their professional license.

A recent case is a perfect example of why licensees should hire counsel upon receipt of any PHMP paperwork. My client hired me after she had attended a PHMP assessment and, having rejected it, also attended without counsel a Mental and Physical Evaluation. The Board MPE expert concluded she suffered from an alcohol use disorder that required monitoring for her to safely practice. She rejected the DMU/PHMP and fought her case. Luckily for this licensee she hired me.

In all impairment cases, the Practical Nurse Law, 63 P.S. §651-667.8, authorizes discipline if there is sufficient evidence in the record to demonstrate that licensee is addicted to alcohol, that any such dependence is continuing, and any such dependence prevents her from practicing practical nursing with reasonable skill and safety to patients. Absent any one of these factors and the Commonwealth loses its cases. Translated into English, the Commonwealth must prove a professional’s alcohol use condition existed, is continuing, and results in the professional’s inability to practice their profession with care and safety.

During cross-examination of their expert I exposed the inaccuracies and legally deficiencies of his opinion. The expert conceded he did not request, and thus did not review, my client’s medical records, employment records, performance reviews from her current employer, and did not contact reference persons (including probation officer) my client provided. At the hearing the expert disclosed he did not possess any factual information about my client’s work performance, such as employer complaints, or any evidence indicating that her use of alcohol has ever affected her work or resulted in her being requested or directed to submit to alcohol and/or drug testing while at work.

As with many of my cases, prosecutors attempt to satisfy their burden of proof through expert testimony that only says the professional is able to practice practical nursing with reasonable skill and safety to patients as long as she is monitored. The usual language is “I believe she is impaired and that it is unsafe for her to practice nursing with requisite skill and safety without monitoring. As such, experts routinely recommend monitoring based on the need for objective verification of a licensee’s abstinence from alcohol. However, this is not the burden of proof.

A review of the evidence showed this licensee was abstinent for 15 months since the MPE, had eight months of sobriety between the 2016 DUI and the examination, and accumulated years of continuous sobriety between 2008 and 2016. As of the date of the hearing my client was in full sustained remission. As well the expert had no information or documentation suggesting that my client relapsed since the 2016 DUI, given that the testing he ordered for her in February of 2017 came back negative. The Commonwealth could not meet its burden of proof of a continuing dependency element.

Even absent a continuing alcohol dependency, the Commonwealth must still also prove that any illness or dependency, continuing or otherwise, has prevents the licensee from competently practicing nursing with reasonable skill and safety to patients. Here is where the expert testimony was clearly deficient.

The Board’s expert only found Respondent unable to practice nursing safely unless she is monitored. That is not the law. Recommending monitoring as a safety “precautionary measure” must be supported by the evidence. Here the expert did not avail himself of certain sources of information, whose names and contact information my client provided, to corroborate or counter the statements she made by during the examination.

Rather, the expert testified that “when someone gives you a list of people to call, 99 percent of the time they give glowing report, and I can’ t believe what they tell me… and .it may be true, but I can’t base my opinion on that.” Yet, when asked directly, the expert could not cite any evidence that, as of the hearing date, my client was unable to practice nursing with reasonable skill and safety to patients.

Please call me to discuss your case and pending prosecution.

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Notice of A Disciplinary Proceeding

Pennsylvania’s licensing boards officially communicate with their licensees only through regular mail or certified mail, return receipt requested.  Licensing boards are not legally authorized to communicate via email any disciplinary correspondence.   This is why every disciplinary board requires licensees, not the board staff,  to update their own mailing address.

There always is a percentage of licensees that after  licensure move throughout the Commonwealth and country.  Many fail to update their licensing board with their new mailing address. Licensees who fail to update their prospective board with their most recent address expose themselves to disciplinary action in their absence.

A new client, over two years ago became divorced, moved out-of-state, and failed to update the Pennsylvania Nursing Board with her new Florida mailing address.  Unbeknownst to her, two years ago the Pennsylvania Nursing Board commenced an investigation and initiated disciplinary proceedings against her license.  Board mail included a Mental and Physical evaluation petition, medical expert appointment scheduling notices, hearing notices, and formal board disciplinary decisions.

For the last two years her disgruntled ex-spouse – who stayed in the marital residence – received all of her mail.  He threw out all her mail, never telling her anything.  Because she was unaware, all appointments, hearings, and decisions took place in her absence. This client was ignorant to all that was taking place against her license in her absence. Her lack of notice is now causing significant long-term detrimental consequences with her license because Nursing Board disciplinary decisions were entered against her.

This client has been working in Florida under a second professional license.  Her most recent employer’s basic regulatory compliance process included an annual subscription to the National Practitioner Data Bank (“NPDB”) automated inquiry process for all licensees. Consequently, her employer was automatically notified of her 2018 Pennsylvania Nursing Board license suspension – of which she had no idea.  She was terminated and can not work until she rectifies her Pennsylvania nursing license disciplinary action.  All other potential employers will see the NPDB disciplinary action.

These disciplinary proceedings transpired over 18 months. Having not updated her formal mailing address, she did not receive the Mental and Physical Evaluation appointments, hearing notices, and formal disciplinary decisions. By the time she became aware of her Pennsylvania Nursing Board license suspension it was too late to take an appeal.

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Her only recourse is to comply with the terms of the license suspension order. This includes now attending the Mental and Physical evaluation, petitioning the Nursing Board for Reinstatement of her license, and attending a hearing in which she must prove she can resume the competent practice of professional nursing with reasonable skill and safety.  This process will take three to six months.  She is unable to practice nursing in her new jurisdiction.  Her State of Florida Nursing Board license may also subject to disciplinary action based upon the Pennsylvania Nursing Board disciplinary action.

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State boards are permitted to engage in disciplinary actions against licensees.  Boards must afford all licensees the opportunity to be heard in accordance with administrative agency law.  This law includes a provision that by regular mailing administrative actions to the licensee’s last known address the Board is affording that licensee reasonable notice of proceedings and is giving the licensee a sufficient opportunity to be heard.

Pennsylvania’s General Rules of Administrative Practice and Procedure (“GRAPP”) authorize service of any proceeding by regular mail, without a return receipt requested.  Email is not authorized.  Due process under both the federal and state Constitutions merely requires licensing boards make a respondent/licensee sufficiently aware of the charges against them and the procedures by which a defense can be presented.  Regular mail of any disciplinary petition or notice satisfies this constitutional obligation.  A licensee/respondent will suffer the consequences if they fail to attend evaluations, respond to petitions, file an answer within the time provided, or does not appear at hearings to challenge the charges against them.

In this client’s matter, having failed to attend a Mental and Physical and Evaluation, case law and board procedure allowed the prosecutor to file a petition Deeming Matters Admitted.  The Board accepts as true all allegations that warranted the Mental and Physical Evaluation.  This means mere suggestions of  drug use, work-related incidents, and/or drunk driving charges warranting an expert evaluation – but not proof of an impairment – become admitted and uncontested facts of an impairment.

This licensee cannot file a motion challenging the validity of the underlying mental and physical evaluation order, the factual findings of an impairment, or the need for monitoring of which the Board concluded after a hearing at which the licensee did not attend. The licensee can not contest the findings of fact or formal disciplinary action, which language the board transmits to the National Practitioner Data Bank.

This licensee’s failure to update her address precipitates a cascade of events that are easily avoided.  Licensing boards throughout the country have set in place this minimal notice and mailing procedure to be able to discipline in and out of state licensees in their absence.  The boards do not have to chase licensees down to discipline them.  Unlike in criminal matters where a defendant must almost always be present, state license boards can strip licensee’s of their property interest in their absence.  This client’s unfortunate predicament is a perfect example of the pitfalls of the failing to update your formal address with your licensing board.

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