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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PHMP versus RAMP: A Big Difference

I write blogs about Pennsylvania professional licensing legal developments.  I am also licensed to practice law in New Jersey. I routinely counsel Pennsylvania professionals concerned about their NJ licenses.  There is a huge difference between Pennsylvania’s PHMP and New Jersey’s RAMP (“Recovery and Monitoring Program “).  RAMP was established in 2003 as an Alternative to Discipline program, managed by the Institute for Nursing for the New Jersey Board of Nursing. http://njsna.org/ramp/

Pennsylvania medical professionals who live in New Jersey or Pennsylvania residents also licensed in NJ, but only use their PA  licenses, are exposed to RAMP.  (Obviously also are NJ licensees working in NJ.)  Any Pennsylvania medical professional, who is also licensed in NJ – who receives Pennsylvania PHMP letter – must consider how RAMP will respond if Pennsylvania restricts their professional license.  Any Pennsylvania disciplinary action based upon an alleged impairment of alcohol and drugs will come to NJ’s RAMP attention. Also, NJ licensees must carefully respond to RAMP communications.

A recent NJ appellate case reveals just how different RAMP is from Pennsylvania’s PHMP.  On November 16, 2017 a New Jersey appellate court decided In The Matter of the license of Kevin Rafferty, RN.  He was a certified registered nurse anesthetist and an Advanced Practice Nurse.  Mr. McCafferty‘s licensing problems began in 2013 when three co-workers smelled alcohol on his breath during work.  They levied anonymous complaints to the Nursing Board, which contacted RAMP. This was the only evidence against him.

RAMP contacted  Rafferty via letter, setting forth the allegations that he may have problems related to mental health and or substance-abuse that could affect his ability to practice his profession.  RAMP offered him a private letter agreement and enrollment for a minimum of 90 days.  During this time RAMP requires random observed drug tests, monthly self evaluation reports, and regular attendance in peer support meetings.  Post-enrollment, RAMP then requires an initial intake evaluation.  In my experience this evaluation typically  finds the professional needs to be in RAMP for 12 months.  The 90-day initial RAMP invite is a fraud!

It is this context (which the McCaffrey case reveals)  that RAMP’s enrollment process is distinctly different from Pennsylvania’s PHMP.  RAMP’s initial letter of invite is not really an offer, but an order to each licensee.  PHMP’s initial “Letter of Concern” is a non-mandatory offer for help and does not constitute a demand to enroll.

RAMP’s initial 90-day evaluation period is not based upon a medical expert assessment or determination the licensee suffers from a drug or alcohol addiction that renders them an impaired professional. That assessment comes only after RAMP enrollment and signing of the RAMP 90-day contract.  The licensee is then stuck.

The RAMP evaluation takes place after enrollment, when the agreement sign requires compliance with the terms and condition of the program.  Licensee thinking they are just going to get the 90 days meet the expert, who determines more time in RAMP is required. Now they are stuck and can’t break the agreement.

PHMP’s letter of concern offers an assessment and voluntary disclosure to determine in an impairment exists.   PHMP requires either a finding of an impairment or a voluntary admission of such before enrollment in the program.  Pennsylvania Voluntary Recovery Program (“VRP”) questionnaire includes a provision that the licensee admit to suffering from an impairment.  This is the voluntary admission part of the VRP contract.  I counsel against signing this agreement.  NEVER ADMIT you are an impaired professional.Wait for the Board to file a formal petition to Compel and Mental and Physical Evaluation.  (See my other blogs.)

McCaffrey did not respond the the initial 90 day RAMP letter.  He was determined to be “non-compliant“ with RAMP.  RAMP notified the Nursing Board that “it could not insure the board or the public that McCaffrey was safe to practice.”  The Board subpoenaed McCaffrey to appear before a committee of the Board to answer questions about  appearing at work smelling of alcohol.  McCaffrey appeared, denied the allegations, and brought numerous letters of reference.  The Board still concluded he should enroll in RAMP and proposed a 2nd private letter agreement requiring McCaffery participate.  He refused.

The Board issued a provisional order of discipline compelling McCaffrey to submit to an evaluation and monitoring to determine whether his continued practice may jeopardize the safety and welfare of the public.  This is a distinct different legal standard and burden of proof compared to Pennsylvania’s impairment burden of proof.

NJ’s licensing boards and Courts have long recognized a “community care-taking responsibility” as legal justification that allows government license restriction.  The NJ Nursing Board thereafter issued a final order compelling McCaffrey to enroll in RAMP. The Board determined such was required to satisfy its “mandate to protect the public.” McCaffrey‘s failure to comply with this final order was reported to the national practitioner data Bank. Still no medical determination of any impairment!

McCaffery appealed claiming there was no medical or legal basis to compel RAMP and that absent such, a general order requiring such denied him due process of law.   The appellate court reviewed McCaffrey’s objections to the Board’s order. The appellate court determined the Board maintains oversight over professional licensing for nurses pursuant to the Nursing Law.  Because the New Jersey professional nursing law requires an applicant not be a “habitual user of drugs and alcohol”, McCaffrey‘s potential for alcohol and drug abuse rendered him suspect of meeting the legal requirements of both the Nursing Licensing and Nurse Anesthetist laws.  The court found the Board had the authority even absent a medical conclusion of any impairment.

McCaffrey complained that absent an expert determination that he was impaired or suffered from a chemical dependency, he met the requirements for licensure.  The Board rejected this argument. The court determined the Nursing Board was within its statutory authority based upon the factual allegations, even without even an expert evaluation, that the Board was within its authority to compel McCaffrey to participate in the 90 day private letter RAMP program.  The decision was handed down in 2017.  McCaffrey’s work place situation occurred in 2013.

For the many licenses that practice in Pennsylvania, these procedural differences between the PHMP and RAMP are significant and should be respected. Pennsylvania’s regulatory and statutory framework allow for licensee participation in and evaluation by a board chosen medical expert before mandatory enrollment in the PHMP.  NJ does not allow for this pre-enrollment evaluation, compels participation, and then subjects the licensee to a bait and switch disciplinary monitoring program.

Please call me to discuss either of these programs and any letters you receive from your licensing board.

 

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.

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

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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.

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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.

 

 

 

PHMP — Pennsylvania — How It Really Works

Here is an email I received this week

RN w a PA license started pnap program 4 yrs ago and they will not let me out if the program. I fulfilled all the requirements and I’m over the amount of time stated in my contract. Every months they come up w something new and threaten to add another year to three. They also threaten if I contact a lawyer I can kiss my license goodbye and I truly believe they have the power to do anything at this point.

They treat me as if I have a substance abuse and test me relentlessly and at one point bc of ice n snow I missed testing they cut my hair and did hair analysis which was negative. In four years I have never had a positive test. And that’s w 1,2,3,4 times testing. Month. I was supposed to be released in November 2016 I missed a call in the day I was leaving for the beach. Packing for 6 kids 10yo and younger for a week distracted me a bit. That is when they threatened to add 3. More yrs for noncompliance. I’m already over my time! Yesterday I could not make a test bc 3 of my kids were vomiting and Had high fevers I could not drag them out w out torturing them. So again I’m getting threatened w more time ands or never seeing my license again. I went I to this program thinking they were here to help me. Obviously they are here for the $$ and to make near impossible to complete the program. I’m stuck. They have taken all the money I have. No I’m finding out it’s not the pnap making the calls it’s the testing company.

This is email presents legal issues about which I receive calls every week.  This email is reflective of the PHMP and PNAP, how the treat their enrollees in the program.  Read this email again before signing any documents and call me.

More importantly, understand the exploding opiate addiction pain medication problem our cities, states, rural areas, and country is facing.  Stepped up offering and then enforcement of the impair professional program, and all of its terms and conditions, is reflected in the statistics a recent news article discussed. Video of ABC News Investigation

However, the statistics cited int he article,73% of all disciplinary cases are for drug and impairment issues, only reflects the stepped up threats, coercion, and intimidation the program administrators are using in convincing people to go into the program that some do not really need.  Read my many other blogs discussing how single offense DUIs, Public Drunkenness, and other minor infraction are brought tot he Board’s attention, resulting in PHMP and PNAP “Letters of Concern” being sent to professionals and scaring them into the program.

Call me to discuss your case.

 

 

 

 

Expert Reports, Testimony, and Stipulations — Make Sure Their Expert Comes to Court

The Pennsylvania Rules of Evidence, promulgated rules and case law interpreting those rules, apply to administrative proceedings. An experienced trial attorney should utilize civil and criminal trial evidentiary rulings discussing the rules to their client’s advantage in licensing disciplinary hearings.

The importance of understanding these rules and keeping up to date with the case law cannot be overstated. Inadmissible evidence not objected to becomes part of the record while properly objected to inadmissible evidence is stricken and unavailable for the Board or hearing officer to rely in rendering its decision. This means that any Pennsylvania trial court evidentiary decision should be researched for their applicability in licensing cases.

On March 15, 2016 the Superior Court of Pennsylvania rendered an important evidentiary decision regarding medical records and expert testimony. In that criminal case, the Commonwealth sought to introduce into evidence an emergency room medical record which contained a medical evaluation, diagnosis, and medical conclusion of an injury. The Commonwealth did not ask the doctor to testify, claiming the medical record was not testimonial, admissible as a business record, and therefore the defendant’s sixth amendment right to confrontation did not apply. Commonwealth claimed the medical record/report is a business record, which is an exception to the hearsay rules. Superior Court reviewed the Rules of Evidence and the case law, rejecting the Commonwealth’s position.

Understanding why this ruling is important for your license case is necessary to hiring the right attorney to handle your licensing case. Medical facts (size, shape and where is an injury) contained in medical report are admissible under hearsay rules.

However, a medical opinion or diagnosis (the specific type and cause of an injury – addictions or impairments) are not. The declarant of the medical conclusion, the doctor rending the expert opinion, must testify. Pennsylvania Rule of Evidence 803.1 provides: The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross-examination about the prior statement:

(3) Recorded Recollection of Declarant-Witness. A memorandum or record made or adopted by a declarant-witness that:

(A) is on a matter the declarant-witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the declarant-witness when the matter was fresh in his or her memory; and

(C) the declarant-witness testifies [sic] accurately reflects his or her knowledge at the time when made.

If admitted, the memorandum or record may be read into evidence and received as an exhibit, but may be shown to the jury only in exceptional circumstances or when offered by an adverse party.

In every impairment case – not just criminal cases – if the Commonwealth seeks to introduce an expert’s report regarding his/her opinion of medical condition, addiction, impairment, and affect on a licensee’s ability to practice, the doctor must come to court. Licensees should never stipulate to the expert report. The expert should be compelled to testify.

This is hugely important in many parts of the licensee disciplinary process. First, never stipulate to any impairment. Signing the PHMP contract admitting you suffer from an addiction or impairment eliminates the legal necessity of the Commonwealth having a licensee evaluated and then calling the expert to testify at a hearing. Secondly, never go to the evaluation of a PHMP approved expert without counsel. You need to be prepared for that evaluation. My prior blogs address these issues.

If the expert concludes the licensee is impaired, hire counsel to fight that conclusion and make sure the expert comes to court. Again, counsel is important here. Make sure you have the expert report before the hearing and that the expert testifies at the hearing. Do not stipulate that his report is admissible and he/she does not have to testify. This is where the Commonwealth v Davis decision is important. The expert must be available and subject to cross examination.

Experienced counsel will know of what issues to cross examine the expert to eliminate certain factual and medical basis for their medical conclusion. It is only during cross examination that the expert’s conclusions will be tested. Thereafter, when briefing the case after the hearing, the record will reflect the doctor’s admissions of what facts are not present in the record to support his decision. When a licensee stipulates to a doctor’s report, such testing and examining the expert’s opinion does not take place.

Three of my recent impairment trials have resulted in significant cross examination and admissions from the Commonwealth’s expert. These admissions eliminate the factual basis for that expert’s medical conclusions. If I stipulated to his report, I would have not secured this type of evidence for my clients. If the expert did not testify, and his report constituted the only evidence upon which the Board could rely to rendering a decision, my clients would not have a chance of winning their impairment case.

Because the expert was subject to the great test of cross examination, as Davis states is required, my clients can win their cases. In each case cross examination revealed omissions of fact and evidence upon which the expert should have but did not consider in rendering his conclusion. Cross examination also revealed the absence of a current medical basis for the expert opinion. Compelling the expert to affirm a licensee’s ability to safely practice, regardless of a medical condition, immediately reveals to a licensee board the weakness in any expert report stating the contrary.

Here is where cross examination is really important. 63 P.S. § 224(a) provides the standard to which the court must subject the expert’s testimony. The provision states: (a) The Board may refuse, suspend or revoke any license in any case where the Board shall find that— (2) The licensee is unable to practice professional nursing with reasonable skill and safety to patients by reason of mental or physical illness or condition or physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination,

The typical expert report simply states such. However, on cross examination, factual concessions reveal how weak the expert opinions typically are. Forcing the Commonwealth at a licensing heating to have the correct witness who can testify and provide admissible and sufficient evidence is paramount. Stipulating to reports and evidence loses your case and your license.

Call me to discuss how to fight your case, properly apply the rules of evidence, make sure your professional licenses is not subject to any discipline.

What to do when the professional receives a “Letter of Concern”.

Routinely, criminal contact (from public intoxication, a DUI, to a drug diversion allegation or sleeping in the work place) comes to the attention of every professional’s licensing board and the PHMP.  This triggers a “Letter of Concern”. This is a letter sent to the unsuspecting licensee, commencing with the sentence; “It has come to our attention that you may be suffering from a drug or alcohol impairment that affects you ability to practice your profession. We are concerned.” This letter is from the PHMP and suggests participating in an evaluation to protect your professional license in a confidential manner without disciplinary action.  DON’T FALL FOR IT.

At this point of the many, two reactions are typical.  NO WAY.  I’m not going.  These licensees hit the internet, research, find my blogs and call me.  Good plan. You may skip to the end of this blog. For those who are on the fence, keep reading.

The second reaction is that many think the evaluation will help. These inexperienced licensees, but to no one’s surprise, attend the evaluation, thinking he or she will pass “with flying colors”. This thought process is a mistake and wrong. Unbeknownst to these professionals, the evaluation is conducted by untrained, non-medically based treatment evaluators. These social workers or counsels work at these facilities, get paid for conducting these evaluation and routinely diagnose people to need PHMP monitoring and treatment at their facility. These licensees forget that the PHMP referred them to the treatment facility who has a financial interest in finding a treatable condition for which it would be capable of providing care.

For the professional that freaks out but is on the fence about attending, researching what are PHP, PHMP, & PNAP will lead them to my blogs and this possible blog.  After reading you will realize the evaluation is merely a fishing expedition. The evaluator is fishing for anything upon which they can hang their diagnosis of a drug or alcohol abuse, use, or dependence disorder for which treatment and/or monitoring is required. My prior blogs review what documents these evaluators seek, medical records they wish to review, and medial authorizations they try to get signed.

These evaluators only know of you what you the professional tells them. There is no prior basis for professional monitoring. While telling the truth is important, you have no obligation to attend a PHMP suggested evaluation stemming from a “letter of concern.” There is no Board order. Your professional license is not under investigation and no discipline has been handed down compelling attendance or treatment. My question then, is, why go?

This voluntary participation is the problem. Attending these evaluations and being completely cooperative provides the PHMP, your Board, and the untrained social worker evaluator information of which all three are unaware, don’t know and do not have a right to know.

Cathartic as it may feel to unburden and talk to this PHMP evaluator, most of the time it will lead to significantly more legal problems. Disclosing information and authorizing the evaluator’s entity to obtain confidential, non-work related medical records opens the professional up to a much deeper evaluation than the “letter of concern” originally suggested or even what the professional anticipated in attending the evaluation.

Many professionals receive proper medical care and take prescribed medications for short or long term diagnosed medical or mental health conditions. Many evaluators know nothing about the complexity of medical care, treatment regimens, prescription medication protocols, or dosages. These are medical decisions for which only licensed doctors can interpret and address. Telling drug social workers at a treatment facility about the prescription medications only leads to their stereotyping you into some medical condition requiring monitoring or further evaluations. This just deepens the fishing expedition.

When you read your “Letter of Concern” do not freak out. Call me to discuss your options. DO NOT SCHEDULE OR ATTEND THE EVALUATION.

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.

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