Federal and State Prescription Fraud

Some of my blogs are extremely dense.  This and the next several blogs focus on the intersection of  federal and state criminal statutes and regulations concerning illegally written prescriptions and the potential criminal consequences.

Federal criminal statutes are intentionally written extremely broad.  Title 21, United States Code, Section 841(a)(1) is the Federal Drug Act.  Typically used for drug dealers, this provision is the tool federal prosecutors use to criminally charge physicians who improperly write prescriptions for controlled substances that are not medically necessary.  The language of the federal criminal statute is quite simple.

Title 21, United States Code, Section 841(a)(1), provides that “[e]xcept as authorized by this subchapter, it shall be unlawful for any person to knowingly or intentionally manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance.”  Title 21, United States Code, Section 802(10), provides that the term “dispense” means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling or compounding necessary to prepare the substance for delivery.

Section 821, provides that “[t]he Attorney General [of the United States] is authorized to promulgate rules and regulations …relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances.”   21 Code of Federal Regulations § 1306.04, governing the issuance of prescriptions, which provides, among other things, that a prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. Moreover, an order purporting to be a prescription issued not in the usual course of professional treatment is not a prescription within the meaning and intent of section 309 of the Act [21 U.S.C. § 829] and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the law relating to controlled substances.

The Pennsylvania Code of Professional and Vocational Standards, Title 49, Chapter 16.92, defines the authority of physicians licensed by the Commonwealth of Pennsylvania to prescribe or dispense controlled substances. Chapter 16.92 provides in pertinent part:

(a) A person licensed to practice medicine and surgery in this Commonwealth or otherwise licensed or regulated by the Board, when prescribing, administering or dispensing controlled substances, shall carry out, or cause to be carried out, the following minimum standards:

  • Initial medical history and physical examination….. [B]efore commencing treatment that involves prescribing, administering or dispensing a controlled substance, an initial medical history shall be taken and an initial examination shall be conducted unless emergency circumstances justify otherwise. Alternatively, medical history and physical examination information recorded by another health care provider may be considered if the medical history was taken and the physical examination was conducted within the immediately preceding thirty days. The physical examination shall include an evaluation of the heart, lungs, blood pressure and body functions that relate to the patient’s specific complaint.
  • Among the factors to be considered in determining the number and the frequency of follow-up evaluations that should be recommended to the patient are the condition diagnosed, the controlled substance involved, expected results and possible side effects. For chronic conditions, periodic follow-up evaluations shall be recommended to monitor the effectiveness of the controlled substance in achieving the intended results.

 

  • Patient counseling. Appropriate counseling shall be given to the patient regarding the condition diagnosed and the controlled substance prescribed, administered or dispensed. Unless the patient is in an inpatient care setting, the patient shall be specifically counseled about dosage levels, instructions for use, frequency and duration of use and possible side effects.

 

  • Medical Records. [C]ertain information shall be recorded in the patient’s medical record on each occasion when a controlled substance is prescribed, administered or dispensed. This information shall include the name of the controlled substance, its strength, the quantity and the date it was prescribed, administered or dispensed to a patient. The medical record shall also include a specification of the symptoms observed and reported, the diagnosis of the condition for which the controlled substance is being given and the directions given to the patient for the use of the controlled substance. If the same controlled substance continues to be prescribed, administered or dispensed, the medical record shall reflect changes in the symptoms observed and reported, in the diagnosis of the condition for which the controlled substance is being given and in the directions given to the patient.

When the federal law is read in conjunction with Pennsylvania’s Code governing appropriate medical practices, prescriptions written without a medical basis or therapeutic need but for which the physician bills federal, state, or private insurance companies for both visits and reimbursement, the physician is exposed criminal liability. The criminal liability is both for insurance fraud and violation of the federal drug act.

As a doctor of medicine, physicians are authorized to dispense to patients Schedules II, III, IV and V controlled substances and to prescribe medicine to patients, including controlled substances, for legitimate medical purposes and in the usual course of professional practice.

Call to discuss any federal criminal target letter or indictment.

Recreational Marijuana is NOT Legal in Pennsylvania

“Over the past several years, nearly half of our Sister States and this Commonwealth have legalized medical marijuana. Some States have also repealed their prohibitions against recreational use; Pennsylvania has not.  A recent case emphasizes this point.

In this appeal, John Batista makes the novel argument that, because marijuana is now medically available in Pennsylvania, police officers may no longer rely upon its smell as a factor for developing probable cause. Like the trial court, we reject this theory. In certain instances, the smell of marijuana may still indicate that a crime is afoot, because the growth, distribution, possession, and use of marijuana without a state-issued permit remains illegal. Thus, the magistrate had a substantial basis to issue a search warrant for Batista’s garage, and we affirm the order denying suppression.”

Commonwealth v. Batista, No. 1130 EDA 2018 (PA. Super. September 27, 2019).

http://www.pacourts.us/assets/opinions/Superior/out/J-S42023-19o%20-%2010415891078797439.pdf?cb=1

CHRIA – Expungements, Convictions, License Applications

The Pennsylvania’s Criminal History Record Information Act (CHRIA) 18 Pa.C.S.A. § 9124 controls how public and private entities use Pennsylvania criminal arrest and conviction records. CHRIA controls how Pennsylvania’s licensing boards may use prior criminal convictions in application and disciplinary matters. CHRIA also governs Pennsylvania’s expungement process. CHRIA allows private lawsuits for illegal dissemination of expunged criminal histories. Two recent developments involving CHRIA are noteworthy.

On May 22, 2019 House Bill 1477 of 2019 was introduced in the Pennsylvania Generally Assembly. This bill seeks to amend section 9124(a) of CHRIA. The amendment seeks to limit Pennsylvania licensing board’s ability to refuse, grant, renew, suspend or revoke any license, certificate, registration, or permit based upon a criminal conviction that does not relate to the applicant’s suitability for such license. This is huge. No longer will a conviction be an automatic bar to licensure.

If a felony or misdemeanor conviction does relate to the trade, occupation or profession for which the license, certificate, registration or permit is sought, the applicant is now permitted to establish sufficient mitigation, rehabilitation, and fitness to perform the duties of the trade. This precludes any automatic application license rejection or disqualification.

The amendment, if adopted into law, will allow applicants to rebut any adverse presumption and show rehabilitation. The Boards must consider the criminal act, nature of the offense, age, maturity since the date of conviction, any prior criminal history, or lack thereof, length of current employment, participation in education and training, and other employment and character references. This clean slate provision allows for applicants with a criminal history record to petition the board for a preliminary decision of whether a prior criminal record would disqualify the individual from receiving the licensure.

On a separate front, on May 28, 2019 a federal jury determined damages against Bucks County for its 2011 online inmate look-up service. In 2016 a federal judge ruled the on-line service will illegal, violating the 2011 version of CHRIA. The jury verdict focused on the damages Bucks County’s CHRIA violation caused. Between 1998 and 2011 the on-line look up tool produced criminal histories of approximately 67,000 inmates. However, many of these inmate’s criminal cases were dismissed and expunged. The federal judge found that Bucks County was disseminating criminal histories of individuals whose criminal records were expunged. The jury awarded $1000 in damages to each inmate whose information was improperly disseminated on the website. The total jury award was $67 million.

This is an important case. It reflects a governmental body acting intentional and deliberate in violating Pennsylvania residents’ privacy rights. Bucks County was determined to be not following Pennsylvania law. Its conduct was determined to be willful and in reckless disregard and in different to the inmates’ privacy rights.

This case and the Clean Slate public policy prerogatives reflect the economic changes in the air. Economic equality starts with criminal expungements and privacy rights. Full and fair employment opportunities provide financial security and stabilize our community. When people are able to get jobs, secure professional licenses, and become more productive members of society, domestic violence is reduced, crime is reduced, drug use is reduced, self-worth is increased and family values and protection of our children is increased. Call to discuss your health care related license application.

Pennsylvania Attorneys and their Disciplinary Process

My licensure defense practice includes representing attorneys facing disciplinary process in Pennsylvania. Attorneys licensed by the Pennsylvania Supreme Court – whether practicing in Pennsylvania or not – are subject to discipline the same as other Pennsylvania licensees. Criminal conduct and egregious unethical conduct expose attorneys to prosecution for violating the Rules of Professional Conduct.

Attorney discipline in Pennsylvania’s attorney regulatory system is more complex that other licensees. The Disciplinary Board of the Supreme Court of Pennsylvania is the court in the Supreme Court in which disciplinary actions are filed. The Pennsylvania Rules of Professional Conduct govern the practice of law in the Commonwealth. These Rules set forth the minimum ethical standards for the practice of law and constitute a set of Rules that all attorneys must follow. These Rules were originally promulgated by the Supreme Court of Pennsylvania on April 1, 1988.

The Pennsylvania Rules of Disciplinary Enforcement is the administrative process through which Supreme Court disciplinary actions are filed, hearings, held and appeals prosecuted. These Rules establish the attorney disciplinary system in Pennsylvania and set forth a broad set of procedural Rules governing attorney discipline. These rules were originally adopted by the Supreme Court in November 1972.

Disciplinary Board Rules and Procedures supplement and implement the Rules of Disciplinary Enforcement, and govern proceedings before the Disciplinary Board. These Rules are promulgated by the Disciplinary Board. This is the main difference between attorney disciplinary matters and other licensed professionals. Where the Bureau of Professional and Occupational Affairs (BPOA) handles all other licensee discipline, the Pennsylvania Supreme Court supervises and disciplines attorneys.

Almost all other aspects of attorney disciplinary matters are similar to that of other licensees. The supreme court issues orders of prosecution to which attorneys must respond to the Prothonotary with all official filings. Disciplinary board council must be copied on all pleadings filed with the court.

Criminal convictions, not arrests, trigger Supreme court investigations and disciplinary action. Routinely Board prosecutors emergently file Orders to Show Cause to suspend attorneys license to practice law. There are much shorter time periods for attorneys to respond to disciplinary filings.

Orders to show cause why in attorney’s license should not be suspended for a criminal conviction in either of the Commonwealth of Pennsylvania, federal court, or any other jurisdiction must be immediately addressed. Lack of extra jurisdiction disciplinary prosecutions will not forestall the Pennsylvania Supreme Court from commencing it’s own independent disciplinary action.

Learning about and cooperating with prosecutors from the Pennsylvania Disciplinary Board is important. Typically these attorneys are former prosecutors and, as attorneys themselves, seek to protect the profession from attorneys who engage in unethical and illegal conduct.
Theft of client funds and improper use of attorney trust account money will always trigger emergent prosecutions. Impairment prosecutions against attorneys caught using drugs, driving under the influence, or even showing up in court impaired are real, frequent, and as rampant as other professionals. Attorneys also suffer from mental health issues, diagnosed or not, that may begin to greatly affect their practice, bleed over into their practice of law. Untreated mental health issues, illnesses, drug abuse, or alcoholism always translate into client complaints.

If you are an attorney in the Commonwealth of Pennsylvania please call me to discuss your potential or pending attorney disciplinary action.

Disclosing a Criminal Conviction on a Licensure Application — Part 2

In my last blog I wrote about real estate applicant who failed to disclose on his Real Estate Commission application a criminal conviction. Upon discovery the Commission revoked his license and the Commonwealth Court approved of the action. Today’s blog involves the exact opposite result for one of my physician clients.

On October 14, 2014 Dr. Christopher Elder, a Texas licensed physician, submitted an application to Pennsylvania’s Medical Board for a license to practice medicine and surgery. Unlike Hawes, Elder disclosed a 2010 federal conviction for aiding in abetting and conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. On April 2, 2015 the Pennsylvania Medical Board provisionally denied Elder’s application. The Board maintained the Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), authorized licensure denial because of Elder’s felony conviction. The Board also denied licensure, maintaining Elder lacked good moral character and did not possess the requisite training and experience.

Elder appealed the conditional denial of licensure. At the hearing before a the Hearing Officer Elder presented his credentials, training and experience, the facts of the criminal case, and character evidence. Consistent with prior Pennsylvania Supreme Court precedent, Elder maintained the criminal conviction was too remote for the Board to determine such affected his current ability to do his job lawfully. Elder’s mitigating evidence established his minor role in the criminal case and his rehabilitation since release from prison.

The Hearing Officer weighed Elder’s witness’ credibility and Elder’s mitigating evidence. He ruled in Elder’s favor, stating that while Elder’s criminal conduct demonstrated moral turpitude at the time of its commission, Elder presented persuasive evidence of his rehabilitation and present moral fitness to practice medicine. A period of probation was required to allow Elder the ability to secure appropriate supplemental educational classes for competency.

The Medical Board rejected the Hearing Officer’s proposed adjudication. The Board determined Elder’s explanation of his crime displayed a lack of remorse and acceptance of responsibility, that Elder still lacked the moral turpitude to be a doctor in Pennsylvania, and lacked the educational qualifications. Elder appealed, maintaining the Board’s decision was arbitrary and capricious in light of the competent, uncontested character evidence and age of the criminal act.

Commonwealth Court agreed with Elder. For the second time in as many months, the Court took a Pennsylvania licensing board out to the wood shed and gave it a stern whipping. The Court emphasized that Boards must look at the age of the crime as it related to current fitness. Remote, past dereliction, must be considered where an agency seeks to revoke a professional license on the basis of a criminal conviction. Secretary of Revenue v. John’s Vending Corporation, 453 Pa. 488, 309 A.2d 358 (1973).

The Court explained that “where the prior convictions do not in anyway reflect upon the [applicant’s] present ability to properly discharge the responsibilities required by the position, we hold that the convictions cannot provide a basis for the revocation of a … license.”

For Elder I determined he must present a clear explanation of the criminal enterprise accompanied by extensive mitigating evidence. The Board was dismissive of Elder’s mitigating evidence, stating that “[r]ather than to take responsibility and express remorse for his criminal misconduct during his testimony, [Elder] attempted to minimize his role.” Elder responded that such did not minimize his criminal conduct but explained his role in the underlying conspiracy, which the Board misconstrued as a collateral attack on his conviction. Elder directs the Court to Nguyen v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 53 A.3d 100 (Pa. Cmwlth. 2012).

The Commonwealth Court reviewed the entire record, the Federal Court sentencing transcript, the 8th Circuit Court of Appeals decision, and each witness’ testimony of Elder’s character and rehabilitation. The Court emphatically states:

The record does not support the Board’s assertion that Elder failed to express remorse or to take responsibility for his criminal conduct. At the hearing, Elder stated that he was “really” and “deeply” remorseful and he “absolutely accept[s]” responsibility.” He presented witnesses to attest to his remorse. The Board did not explain how this testimony was inadequate or what else Elder could have said. Elder’s attempt to place his criminal conduct into context and explain his role in the conspiracy does not demonstrate a lack of remorse or rehabilitation, as the Board presumed. The Board simply made a subjective determination that was contrary to that of the Hearing Examiner, who directly observed Elder and his witnesses, and accepted his evidence on remorse.

We hold that the Board erred and abused its discretion in reaching the conclusion that Elder does not have the present moral character required for a license. Elder’s crimes were committed over 14 years ago and were isolated to a single episode in his life. He has served his sentence. The Board erred by categorizing Elder’s evidence as not accepting responsibility when he was simply explaining his role in the conspiracy. The Board’s conclusion on Elder’s moral character cannot be reconciled with John’s Vending, 453 Pa. 488, 309 A.2d 358, or Nguyen, 53 A.3d 100. It did not take into account its own findings that Elder’s conduct since 2004 has been not only free of criminal conduct but dedicated to significant volunteer and public service activities.

In reversing the Board and instructing it to grant licensure, the Commonwealth Court determined the Medical Board sanction was a “manifest and flagrant abuse of discretion and purely an arbitrary execution of the agency’s duties or functions.” This is an amazing Commonwealth Court conclusion. Elder disclosed his federal criminal conviction for conspiracy to illegally distribute drugs. Elder set forth his long road to redemption, of rehabilitation, and his true character. The Court, a court of law, not the quasi-legal self-protecting Medical Board, looked at the facts – which mattered — and granted licensure.

Long hard preparation of this case won the day. My methodical approach to making a clear record of personal character recovery, redemption, and rehabilitation, could not be ignored. This cases reveals that proper presentation, preservation of the record, and coordination of witness is paramount to success. Call me to discuss your case.

Immediate Temporary Suspension — Are Temporary for 180 Days Only

Board prosecutors file a petition called an Immediate Temporary Suspension (“ITS”) petition that allows licensing boards to temporarily and immediately suspend licensees’ ability to practice their profession.  These petitions are typically reserved against licensee involved in a Drug Act investigation or sexual assault case.  The ITS suspension lasts, at the most, for 180 days.
The ITS petition must be followed up with a preliminary hearing to address the probable cause alleged in the petition.  A hearing must be scheduled and conducted within 30 days from the date of issuance of the suspension order. These preliminary hearings are limited to evidence on the issue of whether it is more likely than not a licensee engaged in any type of inappropriate criminal behavior supporting a temporary but emergent, suspension. Licensees are entitled to be present at the preliminary hearing, with or without an attorney, cross-examine witnesses, inspect evidence, call witnesses, and offer evidence and testimony.
If the hearing examiner does not find the prosecutor met their burden of proof, the licensee’s license and other authorizations to practice are immediately restored. If the prosecutor met their burden of proof, the temporary suspension remains in effect until vacated, but in no event longer than 180 days, unless otherwise ordered or agreed.
Orders for temporary suspension cases still require prosecutors to commence a separate disciplinary action seeking to suspend, revoke or otherwise restrict a licensee.  This separate action is filed through of a charging document known as an Order to Show Cause (“OSC”). In the OSC, facts are not limited to those alleged in the ITS petition.  The order to show cause is typically filed within the 180 day time, while the immediate temporary suspension is pending.
If a prosecutor does not file any disciplinary action after 180 days, the licensee is able to file a petition for the administrative reinstatement of the license. There is no hearing required and the board shall reinstate the licensee’s license. License reinstatement will issue even if there is a pending disciplinary action.

The post-180 day period is the time after which licenses can get their license back pending disciplinary action. I am currently handling several ITS cases with disciplinary action pending and not pending.  In one case disciplinary action was not filed for over a year. The licensee did not file a petition to reinstate her license and did not engage in the practice of her profession. This was a foolish mistake because absent disciplinary action, her license was subject to reinstatement without restriction after 180 days.  A little bit of research and hiring counsel would have properly notified the licensee of the lack of basis to continue her suspension.

License reinstatement is independent of any criminal prosecution or terms of a criminal sentence. Criminal prosecution can not include in a guilty plea agreement provisions that preclude a licensee from practicing your profession.  Call me to discuss your case.

A Good Lawyer is Money Well Spent – Protect Your License

A February 28, 2019 Commonwealth Court issued a decision reversing a Pennsylvania Medical Board order reprimanding a physician. The order reprimanding the physician stems from a medical malpractice case.  The patient died and the Medical Board accused the physician of practicing below the standard of care. The physician objected to the public reprimand placed on his license. The Commonwealth Court agreed, striking the discipline.
The Court concluded the physician’s objections at the hearing to certain evidence were proper.  The hearing officer and Medical Board should not have relied on inadmissible evidence when disciplining the physician. The evidence is hearsay statements in the form of a hospital-based peer review evaluation of the surgical procedure in which the patient died.  At the hearing, before the Medical Board, and on appeal the prosecutors argued the peer-review report was admissible. The doctor objected as he was not permitted to cross examine the report’s author at the hearing or before the medical board.
Both the Board and the doctor agreed the peer review is hearsay — a statement that ‘(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.’ In administrative hearings, the rules of evidence are relaxed and “all relevant evidence of reasonably probative value may be received.” 2 Pa. C.S. § 505.
With regard to the use of hearsay in administrative proceedings, it has long been established as follows:  (1) Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding of the Board[;] (2) Hearsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding  of the Board, if it is corroborated by any competent evidence in the record, but a finding of fact based [s]olely on hearsay will not stand. This is known as the “Walker rule.”
The prosecutors tried to argue the peer review report was a standard medical record upon which experts ordinarily rely in rendering their opinions and conclusions. This is a very standard practice in medical malpractice and other civil litigation cases in which experts are involved. Experts are allowed to review medical records that contain hearsay statements upon which their expert opinions and reports may be based. Through appropriate cross-examination with experience trial counsel before the hearing officer, the physician established that the board expert did not review, read, or rely upon the peer review report to base his conclusion.
The Commonwealth Court ruled the prosecutor did not satisfy the evidentiary predicates allowing the medical board to consider the peer review report as admissible hearsay. Stated another way, the physician had a good attorney who protected the physician at the hearing and the prosecuting attorney messed up.
The prosecutor tried to argue the Peer Review Officers were unavailable witnesses.  The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:  (1) Former Testimony. Testimony that:  (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had–or, in a civil case, whose predecessor in interest had–an opportunity and similar motive to develop it by direct, cross-, or redirect examination. PA. R.E. 804(b)(1) (emphasis added).
The former testimony exception applies when the declarant is unavailable. The Board acknowledged this limitation in its adjudication but dismissed the “unavailability of a declarant” requirement as serving “no useful purpose in an administrative proceeding where the objective is to adjudicate issues in an expeditious  manner.”  The lapse of six years between the incident and the Board’s adjudication belies this rationalization. The record offers no support for the position that any of the witnesses who appeared in the peer review hearing were unavailable to testify at the Board hearing or to provide a deposition.
The prosecutors then tried to argue the peer review report was a business record. The prosecutors did not properly lay the foundation to allow the hearing officer or medical board to consider the peer review report as a formal business record. For a record to be “certified” requires the custodian of the records to sign a certification before a notary public. 42 Pa. C.S. § 6152(d). 10 Assuming, arguendo, that the Peer Review Transcript is a “medical chart” or a “medical record,” it lacks a certification from the custodian of records for the hospital. Because the Peer Review Transcript was not authenticated or certified, it does not pass the threshold for having a document admitted under 42 Pa. C.S. § 6151.
This is a great case affirming a fundamental part of my professional licensing advocacy. Every licensee should have competent counsel both who knows the administrative regulations, procedures, and has been a civil or criminal litigating attorney who is fully competent and versed in the Pennsylvania Rules of Evidence. Counsel that stipulates or does not object to certain evidence coming into these licensing hearing is engaging in malpractice. They are not properly representing their licensee client to the fullest extent of the law. Even minor admissions or stipulations of certain evidence could become the linchpin upon which a hearing officer, licensing board, or the Commonwealth Court will rely to allow discipline.
In hiring counsel, licensees must make sure the attorney is experienced in both trying cases, the rules of evidence, and the licensing board regulations. This trial and appellate attorney who handled Dr. Ives his case did a great job. Congratulations. Call me to discuss your case and let me protect your license.

Getting out of the PHMP

How do you get out of Pennsylvania’s Professional Health Monitoring Program (“PHMP”). The PHMP administers both the Voluntary Recovery Program “VRP” and the Disciplinary Monitoring Program (“DMU”)? As a licensed professional voluntarily enrolled in the PHMP – VRP – or forced into the DMU, you agreed to PHMP terms to keep working. You have been compliant for over three years. Now you think the program time is up!

But what you think is “compliant” may not be what your PHMP case worker thinks is compliant. Compliance does mean no positive drug tests and attendance and proper participation in all medical evaluations. Compliance includes AA or NA weekly meeting, daily telephone call-in, and/or random drug testing for at least three-years. Also, it is mandatory to provide three years or more of employer quarterly work evaluations.

Compliance also means alcohol and drug free for: 1) the first 3-6 months before the licensing board formally enters the Consent Agreement. This is the time period after signing the contract and filing out the personal data sheet when you accepted VRP DMU terms. Case workers do not tell you that it will take 3-6 months for a board to approve the contract. Also, they do not tell you to stop the drug testing after three years in the PHMP. They do not tell you when the three years clock starts to run.

There is one more requirement that is the most important part of compliance; paying all associated costs of the program. Many professionals ignore or forget to pay these expenses. Unless paid, the PHMP term will not end.

Recently I have fielded several calls from PHMP participants who have satisfied all of the above compliance requirements but did not finish paying 100% of the PHMP program costs. Each thought they were “done the program”. Licensees even receive eligibility letters from their PHMP case worker suggesting that they are poised to be satisfactorily dismissed in thirty days from the PHMP.

That thirty day period ran out with no case worker activity. Then, a positive alcohol test is claimed. Case workers then argued the licensee violated the program and requested a 12-18 month extension. These licensees were super angry.

Because a licensee did not pay the monetary expense, PHMP case workers do not file the termination petition with the board administrator. It is only this form, and only filed by the PHMP case worker, that will allow a board to terminate the licensee from the PHMP and reinstate the license to non-probationary status. Case workers continue to expect drug testing and abstinence. Licensees must remain compliant until the board discharges them from the program. This includes drug testing phone calls, testing, travel requirements, medical records, and employment restrictions.

An extension of a PHMP agreement after it natural conclusion, solely because a license failed to pay the costs is an abusive practice. It is an example of the PNAP Trap of which I write extensively. Don’t let PHMP PNAP/SARPH/PHP pencil pushing caseworkers harass you and your professional career merely because you didn’t pay program costs. After 3 to 4 years of continued employment, maintaining financial responsibility should be much easier. You should fit this expense in your budget and pay monthly PHMP costs so that when you are eligible for termination from the program, PHMP caseworkers can not subject you any more torture. Call me to discuss.

Petitions to Suspend a Professional License While on Probation

A Petition for Appropriate Relief (“PAR”) is a licensing board prosecution motion, presented to a licensing board committee, alleging an emergent need to suspend a licensee’s license.  PARs target licensees currently on PHMP disciplinary probation, whether a voluntary agreements and involuntary, licensing board order.  This is the TRAP I reference throughout my website, blogs, and PNAP Trap articles.

Licensees placed in the disciplinary monitoring unit (“DMU”) or the Voluntary Recovery Program (“VRP”) administered by the Professional Health Monitoring Program (“PHMP”) are subject to extensive board orders imposing mandatory drug or alcohol abstinence.  The bait and switch of provision in every PHMP agreement is that for a licensee to maintain or be re-licensed they agree to automatic license suspension if they violate the terms and conditions of PHMP probation.
The Petition for Appropriate Relief or PAR is the prosecutor’s mechanism advising the board of licensees’ probationary order violations. Immediate license suspension is the initial board remedy.  Thereafter, in order to secure licensure reinstatement, a licensee must file an answer to the PAR within 20 days.  If the licensee does not seek a hearing or continue to honor the terms and conditions of the probation, their license will be indefinitely suspension.

It is through the PAR  that board prosecutors apply a heavy-handed approach to compelling compliance with PHMP’s drug abstinence programs.  In agreeing to the DMU, VRP agreement administered through the PHMP agreement, the licensee consents to this automatic suspension process. Each licensee waves a pre-suspension due process hearing.
PHMP, PNAP, and PHP caseworkers can raise any number of issues in a PAR.  I have extensively written about the overbearing trap into which these programs invite licensees.  PHMP uses the carrot and stick approach to licensees who seek reinstatement of or continuance of licensure.  Missed or failed drug test is the number 1 basis for a PAR filing.  PHMP case worker allegations of positive drug tests are routinely wrong, false, mixed up.
Unfortunately, PHMP cases workers claim improper violations two years after licensee’s participation in the programs. Prosecutors, tasked with keeping their jobs and honoring their clients’ (PHMP – through their respective Board)  demands, follow instruction and file PARs for any number of suspicious reasons. Unfortunately, the challenges to address a PAR while a license is suspended are very limited. Typically, extensions agreements or time periods within the programs is the only result that is accepted in order to secure license reinstatement.  Call me to discuss your case.

Physician Employment Contracts and Licensee Disciplinary Actions

I spend a majority of my time helping medical professionals secure and keep their professional license. Recently, a physician contacted me to discuss his group practice employment contract and his hospitalist job. Reviewing his employment contract enlightened me on numerous ways a single licensing issue can impact medical professionals’ employment and future employability.

Standard medical group and hospital employment contracts include the following terms to which physicians shall comply:
1.1. At all times engage in the practice of medicine, specializing in ******, and diligently perform all of the normal and customary functions of a physician with such specialty, and ensure that the services of others over whom he has responsibility are at all times at a level of competence that, at a minimum, is recognized as acceptable in the community served by the Department (the “Community”) and at a standard that is acceptable under the applicable Governing Policies and in the Hospital Contract), all applicable legal and accreditation statues, regulations, standards, and requirements, and other recognized professional standards in the Community.

This paragraph is a catch all scope and competence to practice requirement. It is based upon the local practices in the region, not necessarily the training and experience learned in medical school. Competence is also based upon group community peers and their biases and long held beliefs.

1.2. Perform such other and additional duties and functions for and on behalf of Corporation reasonably relating to the planning, management and operation of Corporation’s activities, as shall be assigned to him from time to time by Corporation; 1.3. Perform any and all duties required of, or assigned to, Physician under the Hospital Contract; 1.4. Comply with all policies, standards and procedures of Corporation which Corporation may, from time to time, reasonably promulgate and, as required in its’ discretion, amend;

1.5. Render all services with competence, efficiency and fidelity, and comply with the ethical precepts of his profession at all times.

These clauses focus on how hard can the group or hospital make the physician work, to the groups’ partner’s satisfaction. “Any and all” duties or “all” policies allows the group or medical corporation to impose their will and practices on the physician. Conformity and compliance are the norm. To wear the White Coat getting along to go and get along is the norm. Weekends, holidays, and midnight shifts are necessary and the norm.

1.6. Without limiting the foregoing:

1.6.1. Continuously be duly qualified to perform the radiology services required of him under this Agreement and the Hospital Contract;

1.6.2. Continuously maintain his license, and be in good standing, to practice medicine in the Commonwealth of Pennsylvania;

1.6.3. Continuously possess a valid narcotics license, as issued by the Drug Enforcement Administration (“Narcotics License”);

1.6.4. Continuously maintain his board eligibility in radiology and, within two years, achieve and maintain board certification by successfully completing and passing the Certifying Examination from the American Board of ________ (“Board Certification”);

1.6.5. At all times comply with the policies, rules and regulations of any and all governmental authorities relating to the licensure and regulation of physicians and _________;

1.6.7. Continuously maintain full privileges at the Hospital, and continually maintain membership on the Active Medical Staff (the “Medical Staff”) of the Hospital in the Department;

1.6.8. Abide by and be subject to the bylaws, rules, regulations, policies and procedures of the Hospital, the Medical Staff, and the Department (the “Governing Policies”);

These clauses speak for themselves. A single criminal or disciplinary investigation creates a domino affect. Prescription Drug Monitoring Program (“PDMP”) violations and/or fraud diversion investigations trigger qualification challenges under each provision. A criminal investigation (not conviction) could affect medical staff privilege issues and/or constitute a violation of the employer’s separate Bylaws and governing policies. DEA issues affect prescription writing capabilities. A criminal conviction (as compared to an investigation) will ripple through and trigger these provisions.

Call me before participating in any criminal investigation of your medical practice or individual license. The physician employee must provide annual or semi-annual truthful information regarding any licensing or other criminal involvements whether it involves a license or not. For example: a DUI charge or spouse abuse/domestic assault charge. Be very careful what you say to whom about what investigation. I have represented numerous physicians in non-work related criminal investigations that did not result in criminal charges only because of my involvement early in the process. Sometimes, here, the truth and just talking to “take care of things” is not the correct process!  You always have something to hide!  Do not talk to anyone without consulting me.

In drug use impairment investigations, proceeding carefully and with counsel is even more important. Referrals to Pennsylvania or New Jersey’s Physician’s Assistance Program (“PAP”) is a gray area. It is not an investigation and it is not a criminal conviction. Call me. The VRP-PAP Referral Letter  A PAP referral is not from Pennsylvania’s Medical Board. A PAP referral is confidential and is not communicated to the Medical Board. Do not disclose any PAP communications with your medical group practice administrator! Professional License Issues

What should a physician do if he/she receives a confidential voluntary recovery program referral. Read many of my other webpages and Blogs on what is the VRP. The Disciplinary Process Referral A VRP referral is much different than a confidential petition filed compelling an evaluation. Voluntary enrollment in the monitoring program will automatically restrict a physician’s ability to write prescriptions, hold a DEA license and participation in many insurance contracts, Boards, and federal insurance programs. DO NOT listen to the lies of the PAP case worker or manager who says you may be able to continue working.  Seriously consider the ramifications of a PAP, VRP enrollment. The Medical License Issue
If the Board files a Petition Compelling a Mental and Physical Evaluation, there still is no disciplinary action. Do not tell your work! If the Board expert concludes no impairment, or the prosecution does not file a petition after a referral, then the case is over. Telling your employer too early in the investigation will trigger consequences that are unnecessary.

If the Board’s PHMP approved expert concludes you are unable to safely practice medicine due to a drug or alcohol addiction, which continues, and impairs your ability to practice, this still is not a disciplinary action . The Board prosecutor must file the petition, there must still be a hearing, and that expert must come to court and testify.

If there is a final Medical Board order compelling enrollment in a drug monitoring program, what does this mean. Only after a full hearing and the medical board issuing a Final Adjudication and Order is there a formal disciplinary order. The same process must be complied with for any other basis before a final board order triggers each of the above sections of the contract. Then enrollment is necessary to comply with this contract.
1.6.9. Continuously be empanelled to be paid for services by, and remain in good standing with, Medicare, Medicaid, the health maintenance organization maintained by Blue Cross/Blue Shield of Northeastern Pennsylvania, and any other payors identified by Corporation and/or the Hospital, or as otherwise required by Corporation and the Hospital contract or agreement.

1.6.10. Sign participation agreements with, and provide true and accurate information for his credentials as required for participation in the, Medicare and Medicaid programs and any other insurance programs required by Corporation and Hospital, and agree to be reimbursed in connection with such programs in accordance with the Hospital Contract;

1.6.11. Serve on such medical and administrative committees of the Hospital to which Physician is reasonably assigned, and perform such additional administrative duties as are required by Corporation and the Hospital;

1.6.12. Assist in developing and conducting medical education programs in radiology as reasonably required by the Hospital, and participate as needed in existing educational programs of the Hospital, as required by Corporation and the Hospital;
A physician under any restricted license will not be invited to participate in any of the above committees, boards, or programs. These provisions allow employment termination/contract termination for just about any conduct or activity that results in even a minor blemish on the group or hospital contract.
Call me to discuss your case!!

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