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.

JNET, Criminal Charges, and What to Do Next

The summer is over. All the fun in the sun in done. Now, back to work. But for professional licensees who had some criminal justice interactions over the summer that have been put off, ignored, or quietly resolved, these issues need attention again. This is because by now, or soon to your mailbox, you will receive notice from your professional licensing board of their knowledge of your criminal charges.

Fifteen months ago, when the Nursing Board changed its regulations to require 30-day reporting of criminal charges (not conviction), the Board needed to begin the process of making sure its licensees were timely reporting criminal charges. While the Nursing Board may have already been a subscriber to JNET, it stepped up surveillance of every licensee. What does this mean?

The Nursing Board, and every other Board, became a daily recipients of JNET computer searches results of its licensees’ criminal interactions. JNET is now an integral part of every licensing Board’s investigatory process. The Boards are subscribers to JNET to receive daily notice of any positive hit of licensee’s criminal charges through a computer algorithm search of its queried database.  AND BELIEVE ME, THE BOARDS ARE GETTING NOTICES EVERY DAY.  IN TURN, THIS MEANS THAT THE BOARDS ARE ASSIGNING THE NEW CASES TO THE PHMP, VRP, AND/OR PROSECUTORS, TO INVESTIGATE AND IF NECESSARY, FILE ORDERS TO SHOW CAUSE, PETITIONS FOR MENTAL AND PHYSICAL EVALUATIONS, OR FILE DISCIPLINARY CHARGES.

What is JNET – From the JNET WEBSITE it reads

JNET is the Pennsylvania Justice Network. The Pennsylvania Justice Network (JNET) is an integrated, secure justice portal providing an online environment for authorized users and systems to access public safety and criminal justice information. JNET is the Commonwealth’s primary public safety integration service provider. JNET is a result of a collaborative effort of municipal, county, state, bordering states and federal justice agencies to build a secure integrated justice system. While each agency maintains ownership and control of their data, JNET allows authorized criminal justice and public safety professionals to securely and safely access information from multiple providers through one interface.

The Pennsylvania Justice Network (JNET) is the Commonwealth’s primary public safety and criminal justice information broker. JNET’s integrated justice portal provides a common online environment for authorized users to access public safety and criminal justice information. This critical information comes from various contributing municipal, county, state, and federal agencies. One-time data entry has improved the effectiveness of participating agencies, and has significantly improved data accuracy throughout the Commonwealth’s criminal justice system. Information entered into a records management system at the onset of an investigation can now follow the offender throughout their criminal justice tract. As offenders pass through the gateway of justice all the way to post-sentencing supervision, offender information flows in concert with the offender’s progression.

JNET allows users to subscribe to real-time event messages for comparison against offender watch-lists. When an event message is published, it is compared against watch-list records and the subscriber is automatically notified via email. When a significant event such as an arrest, disposition, want, warrant, state parole violation, PennDOT change of address or death occurs, users are alerted to check secure JNET for detailed event information.

The licensing boards know of any criminal charge, public drunkenness, disorderly conduct , DUI, drug charges, and more withing 24-48 hours of fingerprinting and processing in ANY STATE IN THE COUNTRY. Reporting your criminal interaction timely and completely is important. Failing to report is a separate disciplinary event from the criminal offense.

Responding to “Letters of Concern”, VRP enrollment letter, understanding what VRP, PNAP, PHMP case workers can and will do once you begin talking with them is pivotal to saving your license. Read my web site and other blogs. Attorneys handling criminal cases do not understand this professional licensing scheme, the evaluation consequences, and the prosecution attorney’s role is to protect the public .

Call me to discuss the letter in your hand, the petition sitting on your desk, or ask the questions you have after speaking to a VRP case worker who just told you to have your boss call them so you can keep working!!!!

DUI and ARD and The Letter of Concern — The PHMP Trap

What should a licensed professional do when charged for the first time with driving under the influence – DUI. As a first time offense in the Commonwealth of Pennsylvania, one is eligible for the pretrial probation, ARD program. This is a great program that, upon completion, does not result in a conviction. If the case is expunged before license renewal, the DUI does not need to be reported to a professional license board. Because of this, how to handle the DUI in conjunction with a professional license is very important.

DO NOT fall for the PHMP “Letter of Concern” trap.  Upon license renewal, advising one’s professional board of a DUI and ARD is mandatory except if completed and expunged before renewal.  The reporting typically triggers a “Letter of Concern” from the PHMP. (See my March 30, 2015 blog.) The letter of concern suggests the professional suffers from an impairment warranting an assessment and work stoppage. (OH MY GOD MY LICENSE IS BEING REVOKED IF I DON’T GO…I HAVE TO ATTEND.) Do not go to this PHMP assessment. Attending this assessment, typically results in bogus recommendations of drug and alcohol treatment and a 3-4 year monitoring program. (See March 9, 2015 blog.)

Included in the ARD process is attending a COAD drug and alcohol evaluation. This is a court mandated assessment to which the ARD applicant must comply with treatment recommendations, typically out patient, to satisfy the ARD probation.  Attending this COAD evaluation creates a huge conundrum for many professionals who have also received the Letter of Concern.

Many many professionals make the mistake of attending both the “Letter of Concern” assessment and the DUI COAD evaluation for the purposes of protecting their license.  Some counties even utilize the same COAD treatment facility as the PHMP evaluation.  This typically results in a different and more extensive DUI COAD evaluation if the facility learns that the ARD applicant is a licensed professional. Livengrin in BUCKS county does this. The questionnaire expands from 25 questions to 300. This is a trap.

Also, many professionals try to utilize the PHMP assessment and treatment regimen to satisfy the ARD probation. This is also the wrong course of action. The DUI, ARD probation program treatment requirements are independent of and significantly easier that those of the “Letter of Concern” or PHMP monitoring. My prior blogs (March 23, 2015) address the importance of NOT attending any PHMP assessment when dealing with a DUI. Go to the DUI COAD assessment only. Comply with the intensive out-patient sessions (IOP) required through the ARD probation to ensure satisfactory conclusion of the ARD program. DO NOTHING ELSE.  If the professional has already done this, is in ARD and then receives the Letter of Concern, do nothing else.  Call me.

Completing the ARD requirements is more important than attending the PHMP assessment or going to treatment for the purposes of satisfying a non-disciplinary, untrained PHMP case worker telling a professional to stop working. Do not commingle any aspects of the PHMP with simple ARD DUI treatment requirements.  When attending the ARD outpatient treatment program, do not participate extensively. Attend and secure a satisfactory completion of this ARD requirement. Remember, every thing you say can be used against the professional at a later date. A DUI is not the end of your license and should NEVER require the professional to stop working.

This strategy is consistent with my theory and practice of rejecting the voluntary PHMP. Unless and until a professional is prepared to admit that they suffer from a drug or alcohol addiction that renders them impaired and unable to practice safely, the professional should not attend any “letter of concern” assessment, sign a contract entering into the PHMP monitoring program, or even attend the PHMP evaluation.

Upon rejecting the PHMP, not going to a PHMP assessment, but satisfying the DUI ARD probation, the professional has properly positioned their case. Rejection of the PHMP will necessary compel the Commonwealth prosecutors to file for petition for a mental and physical evaluation. Having not participated in the PHMP assessment, and spoken very little at the DUI, COAD assessment, there is very little information upon which a professional licensing board can rely to suggest any impairment.

Now, I prepare the professional for the mental and physical evaluation. Working to properly handle the legal issues and professional licensing issues is where I come in. Defending the case with an attorney is easier when the professional has not improperly handled their own case.  Ill informed decision making, compelled under stressful circumstances of threats of loosing a license, has been averted. The professional has now not muddied the simple DUI COAD evaluation by overlaying the more important licensing board professional matter. Take one issue at a time. Call me to discuss.

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