PNAP Case workers — Do Not Trust Them

Medical professionals or their employers call PNAP case workers and intake administrators for numerous reasons.  The initial complaint call against the licensee  generates the “Letter of Concern.”  It is the response call from the licensee to PHMP/PNAP/SARPH/PAP that starts the proverbial ball rolling.  Here are several important facts each licensee should be aware of before calling PNAP.

PNAP/PAP/PHMP caseworkers are told to not tell inquiring licensees the truth. PNAP and PHMP caseworkers are instructed to emphasize the worst possible legal and licensing consequences if there is no cooperation.  PNAP/PHMP caseworkers are instructed to intimidate and scare licensees into the program. PNAP caseworkers are instructed to tell licensees about the costs of the Mental and Physical Evaluation and court fees.  PNAP caseworkers are instructed provide the minimum legal information possible.

PNAP caseworkers do not know the law.  PNAP/PHMP/PAP case workers are not trained in the several health care boards’ regulations.  PHMP/PNAP/PAP case workers do not understand the legal implications of the wrong advice they give. PNAP case workers do not know how to tell the truth.  Some PNAP caseworkers may be in the program too.

 

For every medical professional, agreeing to the initial PNAP assessment is the worst thing you can do. Current conflicts between the DSM-IV and DSM V alcohol use disorder – mild, moderate, or severe – are creating significant issues in determinations of impairment for PNAP assessors.  I have learned that the PNAP assessors could be  calling the PNAP caseworker and managers, who help the assessor diagnosis an impairment. This is improper.

PNAP and PHMP assessments should be performed independently, by appropriately trained medical professionals. PNAP and PHMP supervisors (Simpson and Knipe) should not be consulted on diagnosis. This type of diagnosis cooperation smacks of a pre-ordained determination of an impairment to insure medical professionals go in the program.  Please understand the above is not an anecdote or a hypothetical scenario. I have been told about PNAP supervisors providing supplemental questions and facts to assessors to insure a determination of impairment and a conclusion that the monitoring program is required.  Ethically, any assessor/PNAP consultation is improper.

This tells me that the system of initial communication with PNAP (in which they lie to you) and the read assessment process renders this entire program unacceptable. Be careful.  Call me.
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Notice of A Disciplinary Proceeding

Pennsylvania’s licensing boards officially communicate with their licensees only through regular mail or certified mail, return receipt requested.  Licensing boards are not legally authorized to communicate via email any disciplinary correspondence.   This is why every disciplinary board requires licensees, not the board staff,  to update their own mailing address.

There always is a percentage of licensees that after  licensure move throughout the Commonwealth and country.  Many fail to update their licensing board with their new mailing address. Licensees who fail to update their prospective board with their most recent address expose themselves to disciplinary action in their absence.

A new client, over two years ago became divorced, moved out-of-state, and failed to update the Pennsylvania Nursing Board with her new Florida mailing address.  Unbeknownst to her, two years ago the Pennsylvania Nursing Board commenced an investigation and initiated disciplinary proceedings against her license.  Board mail included a Mental and Physical evaluation petition, medical expert appointment scheduling notices, hearing notices, and formal board disciplinary decisions.

For the last two years her disgruntled ex-spouse – who stayed in the marital residence – received all of her mail.  He threw out all her mail, never telling her anything.  Because she was unaware, all appointments, hearings, and decisions took place in her absence. This client was ignorant to all that was taking place against her license in her absence. Her lack of notice is now causing significant long-term detrimental consequences with her license because Nursing Board disciplinary decisions were entered against her.

This client has been working in Florida under a second professional license.  Her most recent employer’s basic regulatory compliance process included an annual subscription to the National Practitioner Data Bank (“NPDB”) automated inquiry process for all licensees. Consequently, her employer was automatically notified of her 2018 Pennsylvania Nursing Board license suspension – of which she had no idea.  She was terminated and can not work until she rectifies her Pennsylvania nursing license disciplinary action.  All other potential employers will see the NPDB disciplinary action.

These disciplinary proceedings transpired over 18 months. Having not updated her formal mailing address, she did not receive the Mental and Physical Evaluation appointments, hearing notices, and formal disciplinary decisions. By the time she became aware of her Pennsylvania Nursing Board license suspension it was too late to take an appeal.

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Her only recourse is to comply with the terms of the license suspension order. This includes now attending the Mental and Physical evaluation, petitioning the Nursing Board for Reinstatement of her license, and attending a hearing in which she must prove she can resume the competent practice of professional nursing with reasonable skill and safety.  This process will take three to six months.  She is unable to practice nursing in her new jurisdiction.  Her State of Florida Nursing Board license may also subject to disciplinary action based upon the Pennsylvania Nursing Board disciplinary action.

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State boards are permitted to engage in disciplinary actions against licensees.  Boards must afford all licensees the opportunity to be heard in accordance with administrative agency law.  This law includes a provision that by regular mailing administrative actions to the licensee’s last known address the Board is affording that licensee reasonable notice of proceedings and is giving the licensee a sufficient opportunity to be heard.

Pennsylvania’s General Rules of Administrative Practice and Procedure (“GRAPP”) authorize service of any proceeding by regular mail, without a return receipt requested.  Email is not authorized.  Due process under both the federal and state Constitutions merely requires licensing boards make a respondent/licensee sufficiently aware of the charges against them and the procedures by which a defense can be presented.  Regular mail of any disciplinary petition or notice satisfies this constitutional obligation.  A licensee/respondent will suffer the consequences if they fail to attend evaluations, respond to petitions, file an answer within the time provided, or does not appear at hearings to challenge the charges against them.

In this client’s matter, having failed to attend a Mental and Physical and Evaluation, case law and board procedure allowed the prosecutor to file a petition Deeming Matters Admitted.  The Board accepts as true all allegations that warranted the Mental and Physical Evaluation.  This means mere suggestions of  drug use, work-related incidents, and/or drunk driving charges warranting an expert evaluation – but not proof of an impairment – become admitted and uncontested facts of an impairment.

This licensee cannot file a motion challenging the validity of the underlying mental and physical evaluation order, the factual findings of an impairment, or the need for monitoring of which the Board concluded after a hearing at which the licensee did not attend. The licensee can not contest the findings of fact or formal disciplinary action, which language the board transmits to the National Practitioner Data Bank.

This licensee’s failure to update her address precipitates a cascade of events that are easily avoided.  Licensing boards throughout the country have set in place this minimal notice and mailing procedure to be able to discipline in and out of state licensees in their absence.  The boards do not have to chase licensees down to discipline them.  Unlike in criminal matters where a defendant must almost always be present, state license boards can strip licensee’s of their property interest in their absence.  This client’s unfortunate predicament is a perfect example of the pitfalls of the failing to update your formal address with your licensing board.

Prescription Drug History and the Mental and Physical Evaluation

To help prevent prescription drug abuse and protect the health and safety of Pennsylvania citizens, Pennsylvania’s Prescription Drug Monitoring Program (PA PDMP) collects information on all filled prescriptions for controlled substances. This information helps health care providers safely prescribe controlled substances and helps patients get the treatment they need.

PA PDMP’s new initiative seeks to integrate the PDMP system with the electronic health records (EHRs) and pharmacy management systems of all eligible health care entities in Pennsylvania.

As well, as of July 7, 2017, the Pennsylvania Prescription Drug Monitoring Program is sharing data with 11 other states and D.C. Interstate sharing of data helps prescribers and pharmacists get a more complete picture of their patients’ controlled substance prescription histories, regardless of which state they filled their prescription in.

In New jersey, on May 1, 2017, the emergency rules that went into effect on March 1, 2017 were readopted by the Attorney General and the Board of Medical Examiners.  These rules concern limitations on prescribing, administering, or dispensing of controlled dangerous substances, with specific limitations for opioid drugs, and establish special requirements for the management of acute and chronic pain.  These limitations and requirements apply to physicians, podiatrists, physician assistants, and certified nurse midwives.

These new rules affect how professional licensees prepare for Mental and Physical Examinations (MPE). If you have read my other blogs, you should understand the MPE is a compelled medical doctor Drug and Alcohol evaluation investigating a licensee’s potential impairment and continued ability to practice their profession safely. Licensing board orders compelling MPEs require professionals to provide their medical records. The lookback period for medical treatment and care depends on the nature and extent of a licensee’s medical needs.

Historical surgeries (dental orthopedic, or OB/GYN for example) typically reveal a prescription history.  It is these prescriptions of which the MPE expert is interested. The new PA PDMP discussed above is now a means through which the MPE expert (a medical doctor with access to the database) can learn of a licensee’s prescription drug history.

As a medical doctor, the MPE expert has access to licensees’ historic prescription drug use.  The MPE medical experts can review the  PA PDMP database similar to a treating physician who has a legal obligation to check the PA PDMP  before writing a prescription or a pharmacist prior to dispensing a medication.  The licensee who does not bring corroborative prescription records or provides a false historical record severely taints their credibility in the MPE.

 

Call me to discuss your MPE ordered through your Pennsylvania licensing Board.

 

Social Media — Facebook, Instagram and State Licensing Board Prosecutions

Social media and the advent of voluntary public display of everything is starting to affect Pennsylvania’s professional licensing board investigations.  For the last ten years I have consistently represented client’s under investigation for drug diversion and theft.  These cases typically stem from hospital and nursing home based investigations.  A new twist in the investigatory practices of these cases has emerged.
It is important to realize how state board investigators are now utilizing social media as an investigatory tool.  Voluntary picture posts on Facebook, Instagram, or other websites will are now used as the professional’s own statements. Facial recognition software identifies and attaches names to various people in most photographs.  Aspiring and licensed professionals should pause when choosing which if any photographs to post or in which they are included that others are posting. This should give you the professional great concern.
Pennsylvania’s Department of Attorney General, Bureau of Narcotics Investigations (BNI) and licensing board investigators have begun to search social media for names, addresses, the identity of complaining witnesses, and/or information to aide their criminal and licensing prosecutions.  Investigators are learning —  through a target’s own social media self-promotion — the target’s social activities, accomplices, associates, friends, and favorites hang outs.  Many witnesses that would otherwise never be found are located, interviewed, and intimidated.
As well, during a client’s recent Nursing Board Mental and Physical Evaluation, the western Pennsylvania based psychiatrist asked my nurse client of her social media participation. This psychiatrist revealed he had searched Facebook, Instagram, and other social media outlets in preparation for the psychiatric drug impairment evaluation. The doctor sought evidence to confirm and corroborate my client’s statements during her evaluation about her social activities and drinking tendencies. The psychiatrist sought photographic and statement evidence which could reveal my professional client’s evaluation statements may have been inconsistent with social media and/or statements is medical records to her doctors.

Credibility is the most important piece of evidence in an independent medical examination and at a licensing application or disciplinary hearing.  The witnesses I  present at a licensing hearing (live, via telephone, or in a letter) corroborate and strengthen my professional client’s reputation, character, and credibility.
Photographs of social celebration in the context of disciplinary hearings based upon accusations of drunk driving or drug and alcohol impairments constitute important cross-examination evidence.  When a professional voluntarily hands to a psychiatrists, criminal or licensing board investigators evidence against them (or life style pictures that may poorly depict that licensee) it makes my defense harder and the prosecutor or psychiatrists impairment investigation easier.  DO NOT DO THIS  TO YOURSELF.

Professional License Indefinite Suspensions for Missing the Mental and Physical Evaluation

Board authority to  compel a mental and physical examination(“MPE”)  is pursuant to 63 P. S. § 2205(D)(1).  The purpose of the evaluation is to determine whether, under 63 P. S. 224(a)(2) for nurses, a licensee is unable to practice their profession with reasonable skill and safety by reason of mental or physical illness or condition or psychological or physiological dependence on alcohol, hallucinogenic on narcotic or other drugs that impair judgment and coordination.  Similar impairment evaluation provisions are contained in each of the twenty six different Pennsylvania licensing schemes.

A formal board order compelling attendance always accompanies these Petitions.  The Board signs the order to compel both attendance and compliance with document production requirements.  Typically, these petitions are filed, licensees show up at the expert’s office for the examination compliant with the terms and conditions of the MPE order.  It is the unique case where a licensee does not show up and their license is summarily suspended.

License suspension is based upon the Pennsylvania Code provisions that states,  if a licensee fails to attend the MPE,  the allegations of impairment are deemed true.  The admissions of fact and law allow the Board to conclude impairment and formal suspension is ordered.   License reinstatement after this step requires attending a PHMP expert evaluation (at the licensee’s expense) and complying with all other aspects of the suspension order.
Why or how would a licensee not go to the Mental and Physical Evaluation?  Failure to maintain an up-to-date address with one’s Pennsylvania licensing board, resulting in missed notices is the first way. Secondly, thinking these appointments can be unilaterally changed or failing to properly communicate scheduling conflicts create huge problems.  Minor inconveniences though do not warrant not attending the procedure.  The last way is the simplest; a licensee simply does not attend the evaluation for fear of the result.
Case law discussing these provisions specifically requires proper Board notification of the MPE and suspension to the licensee’s address of record.  The address on record is the address to which the Board is required to provide notice of a disciplinary action in order to honor its constitutional due process obligations.  The Board only needs to provide proof of service via regular and certified mail.  It is licensees burden to attend or reschedule the evaluation.
Why do licensees have to go to these evaluations?  Section 224(a)(2) of the Nursing law, for example, is the standard provision in every regulatory board scheme.  Board prosecutors receive information suggesting an impairment.   In seeking licensure, licensees agree to be regulated by the State.  Licensees agree to honor the provisions of Pennsylvania code and case law interpreting the code.

The MPE is just such a provision in an over arching regulatory scheme the Commonwealth has erected to protect its citizens from errant and high licensees (realtors, doctors, pharmacists, nurses and the like).  My blogs deal with my role in preparing each licensee for the MPE. However, I cannot accept mail for each licensee. Once we are retained, I am able to re-scheduled the MPE with consent of either the doctor, Board counsel or prosecuting counsel.  This allows me time to assist the licensee organize their documents and prepare for this expert examination.  I cannot receive the mail.

The consequence on the licensee of not attending the evaluation is significant. While not immediate, eventual license suspension for failure to honor a Board order will occur. Reinstatement will only take place upon attendance of that MPE.  Additional requirements include providing a criminal background check, proof of compliance with all continuing education burdens, proof of no practice during the term of suspension, and payment of investigatory costs.
As well, included in the typical MPE order is the Board paying for the evaluation.  Once a licensee refuses or fails to attend the MPE, the MPE expert evaluation expense must be borne by the licensees.   Please call me to discuss your recent mail compelling you to attend a mental and physical examination.or suspending your license for missing one.

More Examples Why Counsel is Important in Licensing Cases

This week I wrote a blog about the importance of having an attorney handle your professional disciplinary license case. On July 9 & 10, 2015 two more Commonwealth Court cases were handed down affirming my opinion.  Each case magnifies the importance of my blogs on why licensees need an attorney at all times in these professional disciplinary cases.  The cases are Gray v. Bureau of Professional and Occupational Affairs and Tarapchak v Bureau of Professional and Occupational Affairs.

Gray is an applicant who answered yes to having a prior criminal conviction on the state Board of Medicine application. Gray sought a behavior specialist license. Grey acknowledged a 1977 burglary conviction and a February 2008 simple assault, reckless endangering another person, terroristic threats conviction for which he was still on probation in  2012 when he applied for licensure. Gray was provisionally denied a license due to character and fitness deficiencies and timely appealed.

Grey attended the hearing without counsel and attempted to present certain evidence at the hearing that was not properly authenticated or admissible. The precluded evidence was Gray’s letters attesting to his moral character and fitness. In every application case for which someone is denied licensure due to character and fitness, evidence of good character and rehabilitation is paramount.

This evidence must be presented via live testimony with individuals appearing in court.  Gray, not having counsel, did not properly anticipate this issue and did not come prepared with live witnesses to testify on his behalf. As a application case addressing fitness, character, and morals, his fate was sealed before the hearing began.

The attorney prosecuting the case, an experienced litigator, Joan Miller, Esquire, properly objected to the proposed hearsay evidence. The hearing officer for the Medical Board properly sustained the objections and Gray’s letters of reference were excluded. He lost his case before it began. Absent counsel, Gray did not know this and suffered the legal consequences for his lapse.

Tarapchak, acting without counsel, appealed a decision indefinitely suspending her license to practice osteopathic medicine and surgery for no less than three years, retroactive for 18 months.  Tarapchak’s disciplinary matters started in 2010 when, as an osteopathic physician and surgeon,  a petition to compel a mental and physical evaluation addressing her fitness to practice medicine was filed against her.

Similar to a Dr. Woody mental and physical evaluation, the medical board chose Pogos Voskanian, M.D., a psychiatrist, to conduct the evaluation.  He determined that Tarapchak suffered from a drug or alcohol or mental health impairment that rendered her unable to practice osteopathic medicine with reasonable skill and safety absent an increased level of monitoring and a higher degree of treatment.  Tarapchak, without counsel objected to this conclusion, which was overruled and required her to enter the monitoring program.

Tarapchak relented and agreed, signing a consent agreement and order in 2011. Prior blogs address the importance of having counsel prepare every licensee for and attendance with the licensee at these mental and physical evaluations. It does not appear Tarapchak had counsel at that evaluation.

Once Tara was fully enrolled (meaning a final consent agreement was entered by the Board)  in the monitoring program, she violated its terms.  Tarapchak failed to 1) submit to an assessment, 2) provide drug specimens, 3) make timely payment of costs, and 4) cooperate with the PHMP caseworker.  The prosecutor eventually filed a petition for relief, seeking to have Tarapchak kicked out of the monitoring program and indefinitely suspend her license. Tarapchak’s noncompliance with the monitoring programs strict protocols was the issue.

Unfortunately, Tarapchak then began engaging in a series of legal petitions that were both a waste of time and did not have legal merit.  The primary issue of which she tried to address I have written on many occasions; she had “buyers remorse” for signing a consent agreement that bound her to the terms of the PHP/PHMP monitoring program. Tarapchak did not realize the significance of what “cooperation” meant. One of my spring 2015 blogs clearly defines these terms.  Once Tarapchak was stripped of her license and compelled PHMP enrollment, she ran out of money.

The importance of this case is clear. Do not attend a mental and physical evaluation without having counsel properly prepare you for the expert evaluation.  DO NOT GO TO ANY ASSESSMENT WITHOUT COUNSEL PREPARATION.  Absent counsel and a clear understanding of the importance of attending the mental and physical evaluation, and being properly prepared for the evaluation, Tarapchak really lost her license in 2010. While the appellate court case is dated July 2015, Tarapchak effectively lost her license in 2010 when the decision for monitoring was issued by the expert who conducted the mental and physical valuation. The next five years of her professional existence simply focused on not complying with its terms and then struggling with the consequences of not being prepared at that mental and physical evaluation.

Please call me to discuss your case.

Legal Counsel is Important in Every Licensing Case

I write several times a year about the importance of having legal counsel represent licensed professionals before any Pennsylvania professional board during a disciplinary process. From time to time I also write about individual cases that highlight unique issues, changes in prosecution legal strategy, or how cases are being handled differently.  This summer I have a come across several instances in which prosecution legal strategy would have changed significantly  (if an attorney was handling the case) or will because I was hired to handle the settlement negotiations. These developments more than ever highlight the importance of hiring an attorney to assist every professional in these matters.

The three instances span several areas of the disciplinary process, the first being the most typical.  Several highly trained medical practitioners contacted me to discuss, after the fact, their complex PHP/PHMP contract into which they were being forced to enter but had already complied by going to an assessment.  (See my Spring 2015 blog about why not to do this.)  Each professional thought it was in their best interest to consult their hospital compliance officer, rather than an experienced independent attorney, when confronted with a “Letter of Concern” and a PHP/PHMP agreement. Thinking the corporate/regulatory compliance was their “medical friend,” they divulged their alcohol use, current PHP assessment, and the PHMP VRP recommendation. Wrong thing to do!!!!!

These doctors are now being compelled to go into the monitoring program by their employer, and not just the PHP, to save their job. They regret this decision and did not properly contemplate the rigors of the program into which they were “voluntarily” entering. Thinking about their singular job versus a lifetime license was wrong.

The importance of legal counsel is next displayed in a recent pharmacy board trial I handled. I represent one pharmacists in a disciplinary matter that also involves the owner of the same pharmacy, and two other pharmacies, in an independent but related disciplinary action. The owner/pharmacist chose not to have an attorney at his disciplinary hearing. At that hearing, the prosecution introduced into evidence 350 pages of internal drug supplier/company documents regarding his three pharmacies. The hearing officer utilized those documents and the legal conclusions contained therein to discipline the owner/pharmacist.

Conversely, knowing the documents of the other two pharmacies were not admissible in a court of law under basic evidentiary rules, I objected to same documents being introduced against my client at her pharmacy hearing. I also objected to the prosecutor’s expert giving her legal opinion of my client’s alleged rule violations as such was based upon many of the documents now precluded. The pharmacy board hearing officer agreed and stripped the Commonwealth of 9/10 of the evidence in their case against my client. The expert was also precluded from rendering an opinion based upon much of the excluded documents. Solely due to having an attorney, the disciplinary result will be significantly better for my client then the suspension proposed against the pharmacy owner/pharmacist who had no attorney.

A third and more devious example of why an attorney needs to assist licensees in any board matter presented itself in a recent, unique settlement agreement I reviewed. My client successfully presented herself at a mental and physical evaluation after a A Rule to Show Cause requiring the evaluation was filed against her. I was hired to prepare her for that evaluation. The expert found that she did not suffer from any drug or alcohol addiction that rendered her an impaired professional warranting monitoring. This is great.

Nonetheless, some of the facts in the case suggest she should secure additional continuing education credits beyond the standard 24 per cycle. To this end, the prosecutor proposed a “non-public, non-disciplinary” settlement agreement. An unrepresented professional would probably sign the agreement without objection assuming additional education credits was the sole determining factor of the probation term.

However, the agreement’s clauses state probation will terminate only upon approval of a disciplinary type probation officer. The language states “at least” six months probation. The agreement also includes the clause “reinstatement upon approval of either the board or probation officer.” Another clause states the probation officer could seek another evaluation for clearance to confirm public safety before terminating probation.

This new and unique settlement agreement sought to evade the Commonwealth’s chosen expert’s determination of no monitoring. The settlement agreement as drafted would allow the Commonwealth another opportunity for an evaluation in the future to determine if monitoring would be necessary for “public safety.”  As counsel, I objected to each open ended and clearly ambiguous contingency type clauses in a continuing education settlement agreement.

Counsel is important.  Licensees focusing on their profession, paying bills, raising their children, or simply patient safety do not understand the contingent nature of these settlement clauses.  Licensees appearing at hearings without counsel do not know how and why to object to certain documents being presented to the hearing officer.  A medical professionals seeing 15 to 20 patients a day, focusing on their “J.O.B.”, will not perceive the long term importance of the legal admissions contained in monitoring agreements and the future restrictions such imposed upon their licenses.

All professionals are focusing on maintaining the status quo. They will do anything necessary to keep working and not shake the apple cart. Do not do this. Do not sign agreements without an attorney. Do not go to hearings without an attorney. Do not contact compliance officers to discuss PHP/PHMP contracts.  Any suggestion of an impairment will necessarily alter any and every employer/hospital impressions of a licensed professional. Insurance priorities, attending privileges, hospital malpractice issues will become overriding concerns. Impaired or allegedly impaired doctors or professionals will be given short shrift and hung out to dry by any and every compliance officer.

Call me to discuss your case.

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