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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PHMP Trickery — Do Not Fall For It

“Please have your approved treatment provider send a written statement authorizing your return to practice and contact me for permission before you begin or return to work in your profession.

Every day I receive calls from professionals with different contacts from Pennsylvania’s Department of State licensing boards. One consistent question I am asked pertains to the above language in the first letter from the PHMP (the “Letter of Concern”). The letter begins with the sentence, “Information has come to our attention that you may be suffering from an impairment that prevents you from safely practicing the profession.” The letter progresses on to read that if you wish to be considered for enrollment in the VRP you must do several things.

Of most concern is page 2, paragraph 4, the last sentence. Here the VRP and the PHMP push the envelope. The paragraph begins with future tenses statements of “To be considered for VRP, you must agree to cease practicing… If you and enroll in the VRP, you may not return.  The last sentence of paragraph 4, however is a present tense sentence that reads, “Therefore, please have your approved treatment provider send  ____ a written statement authorizing your return to practicing, and contact me for permission before you begin or return to work in your profession. “

This sentence is a misstatement of the law. If you are a current licensed professional, this letter of concern does not require any participation in the PHMP or any other monitoring program. Your license is active status, with no restrictions. Participating in any class program or clinical setting that requires continued licensure is not halted by the “letter of concern,” which can not require you to stop working or participating in school.
This present tense suggestion that a licensee is unable to work or stay in school is legally incorrect.

This sentence is a veiled threat, intending to scare individuals into enrolling in the PHMP, contacting their school or work to disclose an impairment, and lose their job.   There is no statutory or regulatory basis for this present tense suggestion that you are unable to work or participate in any program before enrollment in the PHMP.  This is flat wrong, inappropriate and upsetting to me.

The present tense language of the letter of concern is a pure threat and trickery.  My personal communication with both a PHMP caseworker and Kevin Knipe, Executive Director of the PHMP, confirmed my suspicion that there is no legal basis for a PHMP case worker to threaten your job or clinical program with expulsion or halting your participation if you do not enroll in the PHMP.  Prior to your actual enrollment in the PHMP, you need do nothing. You do not have to tell your job or your school of the letter.  You need to call a lawyer who understands what this letter actually means.

The question becomes do you enroll in the PHMP.  My personal suggestion is, absolutely not. My prior blogs deal with the nature matter of the legal admissions and the concessions you give up as a licensed professional when you sign the PHMP agreement, making the admissions that they seek. If you chose to enroll, or not,  in the PHMP, my blogs address the requirements of the program.  As well, if you enroll, then yes, you can not work or participate in your clinical program of an advanced nursing degree unless the PHMP case worker clears it.  But this is after you enroll, not before. The threat to you that you can not continue your work or participation in any program unless you enroll is not true.

The sentence this blog addresses is indicative of the deceptive and threatening manner within which the PHMP program operates even before you are in the program. Just imagine how they will treat you once you admit an addiction, enroll in the program and acknowledge an impairment for which the PHMP case worker must apply the Pennsylvania’s professional license restrictions.

Call me to discuss your case.

Pennsylvania PHMP/PMP Initial Contact Letter and Evaluation Process

Sections 22 and 41(5) of the Medical Practice Act, 63 P.S. §§ 422.22 and 422.41, authorize the Pa State Board of Medicine to refuse to issue a license based upon competent factual or legal basis upon which the State Board of Medicine may conclude that licensee “fails to demonstrate the qualifications or standards for a license” or that he/she is “unable to practice the profession with a reasonable skill and safety to patients.”  

This first blog of 2014 will focus on the issues presented for all PA professional licensees who 1) reject or choose to undergo a PHMP/PMP evaluation, 2) are assessed by a non-expert to be in need of a monitoring, and 3) chose to not enroll in the PHMP/PMP. From this point forward, the matter will be referred to the State Board prosecutor for potential disciplinary action.

Initially, the Board becomes aware of a possible impairment.  Every licensee should question the nature and means with which the PHMP/PMP became aware of your supposed impairment.  Your truthful answer regarding any criminal charge on the initial or renewal license application is one way.  Others ways include anonymous reports or police or work place referrals.  

Once the Board becomes aware, its first step is the initial “letter of concern” and the PHMP/PMP referral, with accompanying questionnaire and medical authorization forms.  Included in this letter is almost a demand that you contact the PHMP.  However, you are not obligated to answer the questionnaire or sign medical authorization documents.  Absent a Board order compelling participation in the PHMP, rejecting the PHMP is a valid decision because of the consequences of PHMP/PMP enrollment.  

I advise all clients to not answer the initial questionnaire and refuse the PHMP/PMP because any PHMP participation requires a licensee to admit at a minimum of having a drug or alcohol addiction and being an impaired professional.   This label sticks with you for the rest of your professional life and is reason alone to reject the PHMP.  Review my other blogs for the affect of this admission on a licensee and how the Board uses the admission of impairment to easily strip aware a license after participating in the PHMP/PMP.

DO NOT ENTER INTO THE PHMP/PMP CONTRACT WITHOUT FIRST TALKING WITH ME.

If one does answer the questionnaire, the first step in the PHMP process is the interview by the “assessor”.  In almost all circumstances the assessor, seeking a patient, will find an impairment and the need for monitoring.  This person is not an expert and the impairment finding is not a valid medical opinion.  You have yet to meet with the Board hired expert.  These are two valid legal reasons to reject the assessor’s determination of a “suggested impairment requiring monitoring.”

It is my opinion that any Board action (conditional denial of a license or suspension of a license) based upon an assessor’s opinion rests upon an incompetent expert and/or an unrecognized quasi-medical opinion.  The director of the PHMP does not evaluate you.  Rather, the “assessor” or social worker does and they are not licensed experts in any field recognized in any court of competent jurisdiction.  The conclusion or opinion that a licensee is suffering from “a suggested impairment requiring monitoring” is not a medical opinion rendered to any reasonable degree of certainty of any recognized scientific field of study recognized by any competent court in this Commonwealth.

Consequently, it is my opinion that the Board violates federal and state substantive due process rights by relying upon a lay person/non-expert’s unrecognized, unscientific opinion as competent evidence to either discipline an active licensee or provisionally deny the qualified applicant. Absent this assessor’s brief interview with you, there is no way for the Board  to conclude that you “failed to demonstrate the qualifications or standards for a license” or that you are “unable to practice the profession with a reasonable skill and safety to patients.”  Lesson here is DO NOT ANSWER THE QUESTIONNAIRE AND DO NOT PARTICIPATE IN THE PHMP/PMP.

I also feel that the assessor’s opinion referenced and relied upon by the PHMP Director and the Board is a net opinion lacking a factual or medical basis. The conclusion, not even a real medical opinion, is rendered after one meeting.  The opinions therein are also issued by a person or entity possessing a financial interest in the evaluation.  The “suggestion of impairment” necessarily includes a recommendation of treatment by the individual issuing the recommendation.  Thus, the recommendation is based upon a financial motive, is biased, and not competent evidence upon which the Board may rely to provisionally discipline or deny an otherwise duly qualified applicant.  

Because the Board’s factual and legal decision of discipline or license rejection is predicated upon errors of law, violates constitutional rights, and is unsupported by substantial evidence (such relevant evidence as a reasonable person would accept as adequate to support a conclusion), I appeal every Board action based upon an assessor’s opinion.   

Please call me to discuss your case before you sign any PHMP/PMP CONTRACT OR ADMIT TO ANY IMPAIRMENT.  Next blog will talk about the terms of the PHMP contract.

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