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.

Pennsylvania’s Medical Marijuanna Law and the Medical Licensee

Medical marijuana is close to reality in Pennsylvania. However, a reality check is necessary at this time. Do not be mistaken and think that as a licensed professional you are not subject to losing your job or license if you test positive for legalized THC in your blood while on the job.

This blog will discuss various provisions of Pennsylvania’s new medical marijuana law and it’s enforcement on Pennsylvania licensed professionals. This blog will not discuss violations of the Medical Marijuana Act by licensed practitioners and patients.

Pennsylvania’s MEDICAL MARIJUANA ACT is found at 2015 Bill Text PA S.B. 3, 2015 Bill Text PA S.B. 3.  The main provision of the Act as it pertains to use of marijuana by a licensee is § 510, (4).  The clause states that:   “A PATIENT MAY BE PROHIBITED BY AN EMPLOYER FROM PERFORMING ANY DUTY WHICH COULD RESULT IN A PUBLIC HEALTH OR SAFETY RISK WHILE UNDER THE INFLUENCE OF MEDICAL MARIJUANA. THE PROHIBITION SHALL NOT BE DEEMED AN ADVERSE EMPLOYMENT DECISION EVEN IF THE PROHIBITION RESULTS IN FINANCIAL HARM FOR THE PATIENT.

This provision does not have THC blood level nano gram cut off for the amount of medical marijuana in patient/professional’s blood.  The language “Under the Influence” is repeatedly used.  Every drug/alcohol expert (not PHMP assessor) knows that a “Under the Influence” blood level is different for every person. This means any active medical marijuana patient/user who is a professional licensee is still subject licensing board prosecution and employment related disciplinary action for allegedly practicing “Under the Influence” of THC in violation of their licensing regulatory statute, regardless of what this provision provides.

Experts of what THC levels constitute “Under the Influence” mean will now abound.  Employment based random drug tests based upon appearances of “Under the Influence” will become rampant.  Each such positive drug test, with drug expert conclusions on what is “Under the Influence of THC” will become a reportable action to the professional board, which can still take action against the licensee.  This is especially true for the licensee who does not possess a medical marijuana patient card and tests positive for THC.  This conduct will still result in Board prosecution because marijuana use without a registration card is still illegal regardless of whether criminally charged or when THC is removed from Pennsylvania’s controlled substance schedules.

There are two provisions of the Act that support this interpretation. The first is § 1101.  This section states GRAPP governs enforcement of the Act. Grapp is Pennsylvania’s General Rules for Administrative Practice and Procedure. These  are the same procedural and substantive rules that apply to professional license prosecutions. As such, the same hearing officers that are familiar with how to and which disciplinary provisions apply to the licensed professional accused of violating their licensing regulations will review allegations of Medical Marijuana Act violations for either THC issues or violative conduct under the Act as a health care provider.

The next section is § 2103.  This provision deals with protections to licensees who are otherwise medical marijuana card carriers. However, the protections set forth herein only apply to proper use and application of the medical marijuana card.  Licensees accused of sharing their medical marijuana to a non-medical marijuana patient, or who engage in other criminal violations (DUI or a Drug Act violation) are still subject to disciplinary action under their own licensing regulations.

As well, subsection § 2103(B)(2) still allows for employment related disciplinary action for those professional’s medical marijuana use that places the public in harm’s way. If you are reading this blog, you are my typical medical professional client. You cannot got to work “Under the Influence” of THC even if it is a prescribed medication.  Even though working with THC in your blood is allowed and can not form the “sole” basis for disciplinary action, working in a negligent or reckless manner due to being “Under the influence” automatically puts patients at risk.  This conduct will become the basis for employment and licensing action. How and why such becomes known to supervisors is anyone’s guess.

The provision addressing this reality is § 1309.  Section 1309 does not prevent imposition any civil or criminal penalty for undertaking a task “Under the Influence” of medical marijuana when doing so would constitute negligence, professional malpractice or professional misconduct.  Further, if you are not a registered medical marijuana patient, § 2101, making primacy the Medical Marijuana Act over the Drug Act, does not protect you, the illegal possessor or distributor (sharing) of marijuana.

Finally, it cannot be overstated the potential affect on a professional’s license the suggestion of a medical disability warranting medical marijuana use.  Being a properly registered medical marijuana patient legally allows one to consume medical marijuana.  However, requesting your medical professional to verify under the Act’s procedures that you so suffer from a medical condition that medical marijuana is the primary medication may trigger Petitions for Mental and Physical Evaluation by your licensing board.

This would occur when a failed employment related drug test or occurrence is reported to the Board.  The obvious and typical “Under the Influence” allegations would be made.  While no specific direct disciplinary action could be the first salvo in a disciplinary prosecution, allegations of medical infirmity that creates a professional impairment will be lodged.  The Mental and Physical Evaluation that will follow will necessarily require production of all medical records, even those that form the basis for the medical marijuana card.  This raises the specter of a PHMP required monitoring program for which marijuana use is strictly prohibited.  Please read my other blogs on the PHMP and the 3-5 religious based abstinence program.

In sum medical marijuana is more of an indirectly but just as serious threat to many licensees who could become trapped in the maze of license prosecutions once blood tests are drawn and “Under the Influence” allegations are made.  Call me to discuss.

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