Petitions to Terminate DMU Probation Orders — End the Torture.

I represent health care workers in Pennsylvania’s health care professional monitoring program.  Some are voluntarily in the program.  Some are forced.  Some of my clients’ contracts have been extended from 3 to 5 to 7 years in either PNAP, SARPH, or PHP for a minor, single violation of the Consent Agreement.  Some of these extensions are forced or voluntarily entered.  It is time to end your PNAP PHP SARPH probation.

Some clients have their PHMP probation terminated and their license suspended after the Board prosecutor files a Petition for Appropriate Relief or PAR.  This filing is made after the PHMP and PNAP/PHP case worker complains to you and then the prosecutor that drug tests are missed or positive, or other violations of the agreements or Board orders occurred.  The problem here is that case workers claim positive tests or other violations right when licensees are about to be finished their probation.

A recent case has such a recurrent time line, I thought I would lay it out. The licensee’s PNAP Agreement started before November of 2009.  The formal Consent Agreement is dated November 2009.  In July 2013 the PNAP case worker claimed a drug test violation.  However, obviously the licensee should have been out of the program by then.  In October 2013 the prosecutor filed a petition to suspend the license.  That petition carries an automatic license suspension until “things are figured out”.  This is the PAR.   Sound familiar yet?

Even before the PAR was filed, the licensee remained complaint with PNAP, attending an evaluation in July of 2013 that found an alcohol use disorder in full sustained remission.  This means there is no active impairment. The October 2013 license suspension matter did not get a hearing until October of 2016, a proposed adjudication was decided in December 2016 and the full Nursing Board ordered license reinstatement in March 2017.  From 2013 to 2017 the licensee’s license was suspended — but the alcohol use disorder was in full sustained remission as the license participated in PNAP the entire time of the suspension.

The PNAP compliance meant there was no ongoing impairment and there was no evidence of any disorder rendering the licensee unable to safely practice.  As a matter of fact and law, the Board could not — BUT DID — require the licensee to re-enroll in PNAP as a condition of reinstatement of license. To get a license back, the licensee had to follow the order.  This order was inconsistent with the facts and law that revealed between 2014 –  2017 the licensee  logged into record trek thousands of times and was tested at least monthly, costing over $5000.

Jump forward to 2020.  This licensee is ready to finish the three year DMU probation from March of 2017 to March 2020.  Not too funny, but the  PNAP case worker just now claims a positive drug test and claims the need for another extension of the contract.  Sound familiar?  Yes…. everyday I hear this story.  I file Petitions to Terminate this type of forced DMU Probation before PNAP or the prosecutor can file a PAR.

At this juncture after being forced into PNAP for 5, 6, 8 years, compliant licensees have attended thousands of AA meetings, 30-day inpatient, called Record Trac everyday, and undergo thousands of drug tests costing thousands of dollars.  Some clients have spent $15,000 in inpatient care, $2500 in on going forced out-patient care, and more than $7500 in drug tests.

The typical Board order forcing DMU enrollment can be modified and subject to termination at paragraph 45.  Please read that paragraph in your Board Order.  Or if its a Consent Agreement, it is paragaph 7.  Read them and call me.  The case is Kenney v. Bureau of Prof’l & Occupational Affairs, State Bd. of Pharmacy, 203 A.3d 421 (Pa. Commw. Ct. 2019).  Also read Thim v. BPOA, State Board of Nursing, July 24, 2019 Not Reported in Atl. Rptr. 2019 WL 3315143.  These cases discuss the burden of proof for the Commonwealth when it alleges an ongoing impairment and when a licensee can get out of the DMU and PHMP.

In many of these cases, the Petition to Terminate Probation should be granted.  The Boards can not capricious disregard evidence of no ongoing impairment.  The Boards violate the law “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result.” Bentley v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 179 A.3d 1196, 1200 (Pa. Cmwlth. 2018).

Call me to discuss ending your PNAP PHP SARPH contract, DMU Order, and the torture these cases workers try to inflict every day, week, month, year of your probation.

Pennsylvania Authorizes Licensed Health Care Professionals to Provide Services via Telemedicine During Coronavirus Emergency

March 18, 2020

 

Pennsylvania Authorizes Licensed Health Care Professionals to Provide Services via Telemedicine During Coronavirus Emergency

In order to increase the number of health care practitioners available to respond to the COVID-19 emergency and to ensure continuity of patient care and services, Governor Wolf has granted the Department of State’s request to allow health care professionals licensed under any of the Department of State’s Bureau of Professional and Occupational Affairs (BPOA) licensing boards to provide services to patients via telemedicine during the coronavirus emergency.

 

For all licensing-related inquiries, please use the email addresses found here: Board Contact Info

 

Health Care Practitioners Currently Licensed In PA

Currently no Pennsylvania statute authorizes or prohibits the practice of telemedicine.

Due to the COVID-19 emergency, the Department requested authority to issue guidance to licensees under any of BPOA’s health-licensing boards permitting them to provide services via telemedicine when appropriate.

Those boards are:

  • Chiropractic
  • Dentistry
  • Medicine
  • Nursing
  • Optometry
  • Pharmacy
  • Podiatry
  • Psychology
  • Massage Therapy
  • Osteopathic Medicine
  • Nursing Home Administrators
  • Occupational Therapy Education and Licensure
  • Physical Therapy
  • Social Workers, Marriage and Family Therapists, and Professional Counselors
  • Examiners in Speech-Language Pathology and Audiology
  • Veterinary Medicine

Health Care Practitioners Licensed in Other States, but Not Licensed in PA

 

 

  • There is a significant need for certain health care professionals to physically travel to Pennsylvania to assist in the emergency effort, but also a substantial need for practitioners licensed outside Pennsylvania to provide services via telemedicine.
  • Waiver request: The Department requested authorization from the Governor to allow licensed practitioners in other states to provide services to Pennsylvanians via the use of telemedicine for the duration of the emergency without obtaining a Pennsylvania license. This request was approved by the Governor if the practitioner meets the following requirements:
    • They are licensed and in good standing in their home state, territory or country.
    • They must provide the Board they would normally seek licensure in with the following information prior to practicing telemedicine with Pennsylvanians:
      • The practitioner’s full name, home or work mailing address, telephone number where they can be reached, and an email address.
      • Identify the practitioner’s license type (e.g., “physician and surgeon,” “registered nurse,” etc.), any license number or other identifying information that is unique to that practitioner’s license, and the identify the state or other governmental body that issued the license.
    • Further details on submission method of the information above will be provided on the BPOA

 

Other Guidance

 

  • The Department of State will provide references on telemedicine issued by other Commonwealth agencies in any communications or postings/pages on this issue, for ease of access for all
  • All practitioners using telemedicine are advised to remain informed on any and all federal and state laws, regulations and guidance regarding telemedicine, including but not limited to a practitioner’s obligations under the Health Insurance Portability and Accountability Act (HIPAA) and recent guidance provided for the

U.S. Department of Health and Human Services, which can be found here: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency- preparedness/notification-enforcement-discretion-telehealth/index.html

  • Authorization to engage in telemedicine from a professional licensing standpoint is separate and apart from any insurance coverage/payment issues that fall under the Department of Health, the Department of Human Services, the Department of Insurance, or any other state or federal

 

Your Medical Practice and DEA Investigations

A federal criminal target letter from a local United States Attorney notifies a potential defendant that they are the “target of” an FBI, DEA, or other governmental agency criminal investigation. Target letters say “you are the target” and place the recipient on notice to hire an attorney.

Recently, a medical practitioner brought me a new letter.  This letter notified him that his practice was now under federal criminal investigation. It was not a target letter, per se, but a letter asking him to meet.  I was amazed.

The letter stemmed from a 2017 DHS administrative subpoena for medical records for a small subset of that physician’s patient files. The DEA subpoenaed specific patient files based upon patient’s DEA records indicating they had received a substantial number of controlled substance prescriptions. The DEA learned this information through a computer search of this physician’s prescribing patterns, pharmacy dispensing patterns, and actual patient received controlled substance prescriptions.  The DEA then subpoenaed the medical records to see if the doctor had a medical basis to write the prescriptions the database revealed.  Doctors have become the targets of the opioid crisis.

After the physician produced his records the DEA submitted the medical records to their expert physician. This is when something unusual happened.  The US Attorney took the time to notify the physician the expert concluded the physician’s prescribing pattern, quantity, and frequency of controlled substance prescriptions served no legitimate medical purpose in the usual course of professional practice. His medical practice for that small set of patients was criminal in nature.

The US Attorney did not simply indict the doctor.  The government identified to the doctor the numerous deficiencies and violations of standards in the physician’s prescribing practice:

  1. The physician was prescribing high-dose opioids frequently with benzodiazepines;
  2. The medical records did not identify a medical condition justifying the prescribing;
  3. The physician failed to document changes in prescribing patterns between patients with changing medical conditions;
  4. The physician failed to document increase in benefit to the patient from the opioid treatment and failed to provide alternate treatments;
  5. The physician failed to stop prescribing Opioids after proof of failed drug screens:
  6. The physician failed to stop prescribing opioids when no drug screens were performed;
  7. The physician failed to stop prescribing opioids to patients with positive drug test for alcohol, other opiates and benzodiazepines;
  8. The physician prescribed controlled substances without performing any physical examination;
  9. The physician prescribed controlled substances without a patient treatment plan, or inadequate treatment plans;
  10. The physician prescribed controlled substances to patients with no confirmed diagnosis of a medical condition;
  11. Patient records were inadequate, missing, or unreadable or did not have current medication or diagnosis notated in the file;
  12. Many files did not possess updated Pennsylvania prescription drug monitoring program reports

Amazingly this United States Attorney told the physician his medical records reflected in extraordinary pattern of distributing controlled substances while failing to satisfy relevant standards under the Controlled Substances Act and the False Claims Act. The physician was put on notice that the Controlled Substances Act and it’s implementing regulations require prescriptions be issued for legitimate medical purposes by any individual practitioner acting in the usual course of his profession. 21 CFR 1306.04(A).

If a prescription is issued but fails to satisfy those standards to prescription, it is not valid under 21 USC § 842(a)(1), 21 USC § 829(a). These violations provide for a civil penalty under 21 USC § 842C1A of not more than $25,000 per prescription or no more than a total of $64,820 for all violations after November 2, 2015. The physician was also notified that if Medicare paid for any of the prescriptions under a federal healthcare program, the physician was subject to False Claims Act triple damages under 31 USC § 3729.

This doctor was invited him to come and talk to the United States attorney and the Department of Justice about this letter and the 12 files in question.  Most importantly:

  1. the doctor was not yet indicted;
  2. his entire office files were not seized;
  3. his personal and business assets were not subject to civil forfeiture claims
  4. his personal and business assets were not frozen
  5. he was not forced to surrender his DEA prescribing Authority as a bail condition over a holiday weekend;
  6. he was not emergently charged by the Pennsylvania Medical Board;
  7. and he not in jail.

My other clients have not been as fortunate to receive, while intimidating, such an explicit letter.  This doctor was invited to talk to the United States Attorney and the Department of Justice about this letter.  If you have received a letter similar to this please call me to discuss your options.

Pennsylvania’s New Opioid Treatment Agreement Law

On Nov. 27, 2019 Pennsylvania Governor Tom Wolf sign into law Act 112 of 2019.  This is Pennsylvania’s Opioid Treatment Agreement Law.  It  took immediate effect.  The law requires prescribers to enter into an opioid patient treatment agreement before issuing the first prescription in a single course of treatment for chronic pain using any opioid-containing medication, regardless of whether the dosage is modified during treatment.

Among the new requirements, the Prescriber must: determine whether an individual has taken or is currently taking a prescription drug to treat a substance use disorder; have a discussion with the patient about the risks of addiction, and additional risks if the patient suffers from a mental health condition or substance use disorder; present non-opioid treatment options available; and discuss the dangers of taking a controlled substance containing an opioid with benzodiazepines, alcohol, or other depressants. The Prescriber must review with the patient, and both must sign, a treatment agreement containing a number of required elements, including the patient’s consent to targeted urine drug testing if medically necessary. The Prescriber must obtain written consent from the patient for the prescription, and record the consent on the treatment agreement. The treatment agreement must be maintained in the patient’s medical record.

The law exempts from these requirements medical emergencies, management of pain associated with cancer, and use in palliative or hospice care. Violations of the law may result in sanctions to the Prescriber’s license in accordance with the applicable professional practice act. The Act is effective immediately, and mandates that the Pennsylvania Department of Health issue regulations within 90 days of the Act’s enactment.  Contact me for a Patient Agreement Form.

Aside from these patient agreements, 35 Pa. Cons. Stat. § 52A03 (2016). Pennsylvania also amended its laws regulating opioid prescribing to minors in 2016. The amended statute prohibits prescriber from prescribing more than a seven-day supply of a controlled substance containing an opioid to a minor.  Requirements with the force of law: 35 Pa. Cons. Stat. § 873.3 (2016). As with minors, Pennsylvania also now prohibits prescribers from prescribing more than a seven-day supply of opioids to persons receiving care in emergency departments.

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.

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.

Disorderly Conduct — Moral Turpitude — Commonwealth Court Decides

Today the Commonwealth Court issues another remarkable decision involving a Pennsylvania medical professional.  Dunagan v. BPOA, 2019 WL 155879, is the third case in a row in which a Commonwealth Court panel has found a Pennsylvania medical related board engaged in an erroneous interpretation of the law and abuses its discretion.
In 2015, Dunagan was arrested and charged with three Drug Act violations and one Disorderly Conduct offense.  The charges stem from a police investigation that revealed Dunagan possessed a small amount of drugs and drug contraband.  The Disorderly Conduct offense is based upon Dunagan’s behavior during the search warrant execution. Dunagan’s criminal defense attorney negotiated dismissal of the Drug Act offenses and a guilty plea to the Disorderly Conduct offense.  This is a great legal tactic.  A medical professional who pleads guilty to a Drug Act violation is subject to an automatic one year license suspension and forced PHMP/DMU enrollment.  Dunagan’s plea avoided this result.

 

Dunagan properly reported her arrest to the BPOA.  Observing Drug Act offenses, a Nursing Board prosecutor filed an Order to Show seeking discipline Dunagan for her misdemeanor Disorderly Conduct guilty plea.  Ordinarily, Disorderly Conduct – charged either as summary offense or a misdemeanor –  is not a trigger for disciplinary action.  However, the Board prosecutor, with the support of his supervisors as a policy decision, subversively sought to discipline Dunagan for her drug related criminal conduct – not really the Disorderly Conduct offense to which she plead guilty.  This is outrageous.
Before the hearing examiner and Nursing Board, the prosecutor argues discipline should be based all facts of the criminal charges, not just the Disorderly Conduct behavior.  This is more facts than those essential elements of the Disorderly Conduct offense.  The prosecutor also maintains the facts giving rise to Dunagan’s guilty plea constitutes “a crime of moral turpitude” to which the Board may exercise its discretion and discipline Dunagan as it wishes.

 

The Hearing Examiner, rejecting this position, rules Disorderly Conduct is not a crime of moral turpitude and dismisses the Order to Show Cause.  The Board rejects the Hearing Officer’s Proposed Adjudication, finding Dunagan’s tumultuous behavior in the execution of a search warrant is a crime of moral turpitude.  The Board suspends Dunagan’s license for six months.

 

Obviously the decision is based upon the drug offenses that were dismissed and to which the Board could NOT force Dungan into the DMU/PHMP or automatically suspend her license under the Drug Act and CHIRA.
Dunagan appeals.  The Commonwealth Court reverses the Nursing Board decision.   The appellate court reviews much case law and facts and concludes Dunagan’s conduct resulting in a Disorderly Conduct guilty plea cannot and does not constitute moral turpitude.  The Court states

 

“A determination of whether a crime involves moral turpitude will be determined based solely upon the elements of the crime. The underlying facts or details of an individual criminal charge, indictment or conviction are not relevant to the issue of moral turpitude.” 22 Pa. Code § 237.9(b); see also Startzel v. Department of Education, 562 A.2d 1005, 1007 (Pa. Cmwlth. 1989) (“Determination of whether a crime involves moral turpitude turns on the elements of the crime, not on an independent examination of the details of the behavior underlying the crime.”).

 

The Court rules a six month professional license suspension is 1) an abuse of discretion, 2) a guilty plea to a Disorderly Conduct offense is neither a crime of moral turpitude nor a basis to suspend or revoke a professional licensees license, and 3) citing her need to earn a living and work – that the case facts are not health related  — there is no justifiable necessity to protect the public from her conduct.
This case reveals the extreme prosecutorial environment in which all Pennsylvania licensees now practice. Medical marijuana is the prime influencer of this case. Many Drug Act possessory offenses result in either original charges of Disorderly Conduct or evolve into a guilty plea to a Disorderly Conduct offense. A summary Disorderly Conduct offense is not a conviction under the Drug Act. As a result, Pennsylvania’s health related boards are not able to automatically suspend a license or commence disciplinary process predicated on a drug possessory offense.

 

BPOA prosecutors tried to secure Commonwealth Court case law stating a summary offense, whether a crime of moral turpitude or not, is a valid discretionary basis to suspend and discipline a medical related board licensees license.  The Commonwealth Court said no.
More importantly, at the Board hearing the attorney did not properly protect the record. I have written that factual allegations contained in an Order to Show Cause can only be those related to the criminal convicted charges, not allegations that are dropped or dismissed. Facts related to  dismissed, withdrawn, or not guilty charges are not relevant or admissible in any disciplinary prosecution.
This attorney did not object to a whole set of irrelevant and inadmissible facts.  Or the licensee simply testified about everything that happened on the date and time of her arrest. This placed those facts in the record for the Nursing Board to consider. It did consider the entire case facts, knew the case was about drugs, and suspended her license.  Both the legal strategy and Board conduct was improper. Call me to discuss your case.

New Jersey’s Proposed Medical Marijuana Act Amendments

Pennsylvania’s Medical Marijuana Act details in excruciating detail the prescribing limits placed on physicians (the only allowed prescribers). New Jersey’s MMA differs from Pennsylvania at the outset by not limiting prescribers to physicians.  Any medical professional with DEA prescribing authority may dispense Medical Marijuana.
This blog discusses NJ’s proscriptions against all NJ health care professionals who chose to dispense marijuana and patient card holders.  Importantly, the first significant rule is that the list of list of the persons to whom it has issued registry identification cards and their information contained in any application form, or accompanying or supporting document shall be confidential, and shall not be considered a public record and shall not be disclosed except to confirm the legality of their pot possession. Applying for a registration card does not waive physician-patient confidentiality.
As for dispensing health care professionals, a health care practitioner shall not be required to be listed publicly in any medical cannabis practitioner registry as a condition of authorizing patients for the medical use of cannabis.
When authorizing a qualifying minor patient who is a minor for the medical use of cannabis, if the treating health care practitioner is not a pediatric specialist, the treating health care practitioner shall, prior to authorizing the patient for the medical use of cannabis, obtain written confirmation from a health care practitioner who is a pediatric specialist establishing, in that health care practitioner’s professional opinion, and following an examination of the minor patient or review of the minor patient’s medical record, that the minor patient is likely to receive therapeutic or palliative benefits from the medical use of cannabis to treat or alleviate symptoms associated with the patient’s qualifying medical condition. If the treating health care practitioner is a pediatric specialist, no additional written confirmation from any other health care practitioner shall be required as a condition of authorizing the patient for the medical use of cannabis.
No authorization for the medical use of cannabis may be issued by a health care practitioner to the practitioner’s own self or to a member of the practitioner’s immediate family.
These are important but very liberal provisions.  Any health care professional may write a prescription for medical marijuana.  Confirmation of a medical condition that is LIKELY to receive therapeutic or palliative benefits for marijuana is the medical burden.  Pennsylvania comparative provision is significantly more stringent.  Similar to Pennsylvania, health care professional can not prescribe pot to themselves or their family.
Ownership of a Medical Marijuana dispensary is a significant legal issue. In Pennsylvania, physicians can not have any owership interest in any verticle aspect of the marijuana manufacturing, production, or supply chain. In NJ, this is extremely different.
Except as provided in subsection b. of this section, no health care practitioner who has authorized a patient for the medical use of cannabis pursuant to within the past 90 days, and no member of such health care practitioner’s immediate family, shall be an interest holder in, or receive any form of direct or indirect compensation from, any medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant.
If the health care professional does not prescribe marijuana, they CAN have an ownership interest.
Nothing in subsection a. of this section shall be construed to prevent a health care practitioner from serving on the governing board of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, or on the medical advisory board of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant established pursuant to section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill), or from receiving a reasonable stipend for such service, provided that:
(1) the stipend does not exceed the stipend paid to any other member of the governing board or medical advisory board for serving on the board; and
(2) the amount of the stipend is not based on patient volumes at any medical cannabis dispensary or clinical registrant or on the number of authorizations for the medical use of cannabis issued by the health care practitioner pursuant to P.L.2009, c.307 (C.24:6I-1 et al.).
c. A health care practitioner, or an immediate family member of a health care practitioner, who applies to be an owner, director, officer, or employee of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, or who otherwise seeks to be an interest holder in, or receive any form of direct or indirect compensation from, a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, shall certify that the health care practitioner has not authorized a patient for the medical use of cannabis pursuant to P.L.2009, c.307 (C.24:6I-1 et al.) within the 90 days immediately preceding the date of the application.
In almost every jurisdiction, use and possession of medical marijuana can and is a basis from professional disciplinary action.  Showing up high to work, for any reason, or being charged with driving under the influence of pot triggers professional license disciplinary actions.  Under the proposed legislation, the new law try to change this!
b. A qualifying patient, designated caregiver, institutional caregiver, health care facility, medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, health care practitioner, academic medical center, clinical registrant, testing laboratory, or any other person acting in accordance with the provisions of the new law shall not be subject to any civil or administrative penalty, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, related to the medical use of  cannabis as authorized under the bills (pending before the Legislature as this bill).
c. Possession of, or application for, a registry identification card shall not alone constitute probable cause to search the person or the property of the person possessing or applying for the registry identification card, or otherwise subject the person or the person’s property to inspection by any governmental agency.
d. The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of  cannabis determined to exist by the commission, shall not apply if a qualifying patient, designated caregiver, or institutional caregiver has in his possession a registry identification card and no more than the maximum amount of usable  cannabis that may be obtained in accordance with section 10 of P.L.2009, c.307 (C.24:6I- 10).
e. No person shall be subject to arrest or prosecution for constructive possession, conspiracy, or any other offense for simply being in the presence or vicinity of the medical use of cannabis as authorized under the bills pending before the Legislature as this bill.
Shall not alone constitute probable cause. These are the operative words. Simply using medical marijuana for a proper therapeutic or palliative need will not trigger a disciplinary investigation. Showing up at work smelling of pot and attempting to perform as a medical professional will cause problems. Work place reports, medical mistakes, criminal charges of driving while high (in any jurisdiction) are additional facts New Jersey’s licensing board will and can consider. They can not ignore “additional facts”. That is why the statute says “shall not alone constitute probable cause.”

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!!

Criminal Conviction – Professional License Suspensions and Mitigation Evidence

The Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), requires Pennsylvania’s licensing boards consider criminal convictions disclosed on license applications or which take place after licensure as a reason to discipline active licensees. Different licensing boards apply CHIRA’s rules differently.

On February 28, 2018 Commonwealth Court decided Bentley vs. BPOA, — A.3d —- (2018).  This cases expounds on how a licensing board abuses its discretion when it disciplines a licensee for criminal conduct not related to their license. In 2013 and 2014, Cosmetologist Bentley was convicted in two separate cases of possession with intent to deliver a controlled substance, forgery, aggravated assault, escape, and attempting to allude the police. Wow.

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Bentley reported the convictions to her Board, which issued a Rule to Show Cause seeking to discipline her license under CHIRA.  At the hearing, the Cosmetology Board prosecutor only presented the certified criminal conviction. This is the typical prosecutor practice.  No witness testified as to the underlying criminal conduct.

It is important to have competent counsel at this hearing.  Counsel should object to inadmissible portions of the certified conviction documents. Objections to hearsay statements in affidavits of probable cause eliminate statements of people not present at the hearing.  The licensee can not cross-examine that witness.   I always have these documents paired down and limited.  My client/licensee’s explanation of the criminal case is the only version of events. Consistent Nguyen v. BPOA, licensees are allowed to explain their role in any multi-defendant criminal case. They may explain a co-defendant’s greater role than their own.

During her hearing, through counsel, Bentley presented significant and appropriate mitigation evidence. Mitigation evidence included the delay of the prosecution versus the time of the criminal act; new and abundant family support; full and complete responsibility for the criminal act; the unique set of factors leading up to the criminal charges and her association with her then boyfriend and now co-defendant.  Most importantly, she described her rehabilitation while in state prison. This rehabilitation included anger management, employment/cosmetology training, and new religious faith. She presented reasonable and appropriate community reputation evidence. This evidence corroborated her claim of being rehabilitated, remorseful for her actions, and turning over a new leaf.

beyond-the-classroom-into-the-courtroom

The hearing officer suspended Bentley’s license for the balance of her parole (probably not long). The Cosmetology Board, as all boards do, issued a notice of intent to review the hearing officer’s decision.  The Cosmetology Board rejected as modest Bentley’s mitigation evidence. The board suspended Bentley’s cosmetology license for three years based upon the criminal convictions. The Board rejected Bentley’s need for licensure to remain employed, her rehabilitation, and need to support herself.

Bentley appealed to the Commonwealth Court.  She claimed the Board abused its discretion when it rejected her mitigation evidence and suspended her license based solely on the criminal convictions.  Bentley alleged that the Board summarily ignored all of her uncontested mitigation evidence, which was not contradicted by any evidence the Commonwealth introduced in the certified criminal conviction. Bentley argued the suspension was manifestly unreasonable because the convictions bore no relation to the practice of cosmetology. Arguing the Board’s conduct capriciously disregarded her mitigation evidence absent explanation was an abuse of discretion.

On review the Commonwealth court agreed. Commonwealth Court defines capricious disregard as “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinarily intelligence could not possibly have avoided in reaching a result. When strong evidence contradicts contrary evidence, the adjudicator must explain the basis for its determination.” Absent a proper explanation why the adjudicator is rejecting overwhelming critical evidence, the board abuses its discretion.

As with many of my cases the time delay between criminal event, conviction, and disciplinary action may be five or six years. I argue Board delay which allows the licensee to practice of their profession for three or four years renders mute any board allegation that there is an emergent basis for extensive discipline. Suspension or revocation is not warranted if the board took six years to do it.

Also, the Cosmetology Board licensing scheme does not authorize discipline for criminal convictions not related to the profession.   Imposing discipline based upon the convictions was an error of law.  Such also revealed ignorance of Bentley’s mitigation evidence.  The court found Bentley’s mitigation evidence unique and must be considered.
The Commonwealth Court held that the Board’s summary rejection and failure to consider it constitutes a capricious disregard of the evidence. Such is an abuse of discretion for which the Commonwealth Court rejects the board decision and sends the case back to the Cosmetology Board.

This case is an example of licensing boards tightening their belts and implementing a much stiffer enforcement environment. This appellate  decision, and several other recent cases, reveal licensing boards routinely abusing their discretion and ignoring the law that guides their decisions.  Non-law trained licensing board members shoot from the hip regarding the discipline that they want to impose upon their license fees. Many times, there is no legal basis for the discipline.

When licensees take an appeal, they have an appellate, independent, unbiased court review the nature and extent of imposed discipline.  The appellate court rejects this board’s arbitrary and capricious decision. Unfortunately this costs a lot of money. However, in many of my cases I see unfettered discretion punishing hard-working licensees that is far beyond both what is necessary and reasonable and what the licensing statutes allow.
Call me to discuss your case.  A criminal record should not be a bar to getting or keeping a license.
 jerry-arrest-record-seinfeld1
Jerry’s career took off.  So should yours.
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