Try to Recognize when an Attorney is Needed

When is it important to hire an attorney in a licensing and criminal defense case? When case agent first contacts you!  Do not talk to them.  Just say thank you, I will call you back; can we meet next week; no you can not come into my house!!
Every day licensing board investigators, police detectives, human resource departments, or other government investigators reach out to targets or “individuals of interest” in a wide range of potential investigations. These law enforcement officers (most state investigators are retired police detectives) are trained to secure statements from the subject of the investigation.  They call you, show up at your house, or try to meet with you at work.  This is when you know you need a lawyer.

My blogs generate phone calls from potential clients.  A recent theme of these calls sticks out;  investigators are employing consistent, heightened and aggressive investigative techniques to surreptitiously secure statements and admissions of criminal conduct, unprofessional licensing behavior, or illegal behavior.  This is explained in one sentence; why do an investigation when an admission from the target will solve the case.

Targets give statements for one reason: ignorance and naïve understanding of the law.   Targets  or potential criminal defendants give statements because they think they are obligated to cooperate, should cooperate, or that cooperating is in their best interest.  These reasons are incorrect.
Admitting to engaging in questionable or criminal conduct eliminates investigator’s obligation and duty of proving their case through means other than an admission by the target.  Admissions to detectives and investigators eliminates their need to perform basic investigator police work.  It satisfies  the police officer’s burden of proof in securing evidence of illegal or criminal conduct against you.
Licensees who admit to a Board investigator to practicing outside the scope of their license, stealing from their clients, overcharging for services, or any other offense does the investigator’s job.  In many cases, before the statement is secured, there is only a mere suspicion of inappropriate behavior.  There is no specific evidence of a criminal act. The statement itself becomes the evidence against you. The person giving the statement creates the criminal evidence for the investigator that they did not otherwise have.   (I feel the same way  about licensees who cooperate in the PHMP VRP assessments.  Do not give the Board’s any evidence they do not have.)
Once a criminal admission is given, the police officers don’t do anymore work. The state investigators don’t do anymore work. This is why there is no legal obligation to cooperate.
Giving statements to employers in work place investigations has the same ultimate result. I have written about this many times. Choosing to not give a blood test, write a personal statement, or even provide copies of medical records cannot be held against you. You can be fired, but it can’t be held against you. At times it’s more important to choose to remain silent then to keep your job.  Anything you say in the employment setting is merely turned over to the board investigator or police.
Remaining silent and not cooperating with any investigation  — not disclosing truly damaging information — sometimes is the best defense of your license or against criminal charges.  Do not succumb to the police officer bullying. Suggestions by police that they can secure search or arrest warrants should not persuade you to give up your constitutional rights.
You do not have to give a statement. You do not have to give a DNA test. You do not have to participate in any polygraph evaluation.   If the officer does not believe your word or accept your version of events, agreeing to provide objective forensic evidence will not change their mind. You will just be giving them evidence to accumulate and use against you at a later date.
Hopefully you have the opportunity to read this blog before you have spoken to an investigator about a licensing issue, participated in the workplace related investigation, or cooperated with any police inquiry inquiry about your job or your behavior. If not, call me as soon as possible.
Whether you hire me or any other lawyer, stop stop cooperating with any police investigation.

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.

QUESTIONS THE PROFESSIONAL SHOULD ASK THEMSELVES BEFORE ENTERING PENNSYLVANIA’S PHMP

Should you expect your VRP case worker’s cooperation when you complete the PHMP (whether voluntary or not) three year program? Will your PMP, PNAP, SarPH case worker be your advocate? Will the program finish within the three year time? When will your licensing board hear your reinstatement application? These are all important questions for any professional considering Pennsylvania’s Voluntary Recovery Programs.

The answers to these questions constitute the basic assumptions each professional will posses and seek to understand prior to entering the PHMP. Whether doctor, nurse, pharmacist, or any other professional, understanding the full extent of your professional recovery program (they are almost all the same) prior to signing the enrollment contract is paramount to managing your expectations and experiences in the PHMP. See this link for the terms and conditions. http://www.dos.pa.gov/ProfessionalLicensing/OtherServices/ProfessionaHealthMonitoringPrograms/Documents/terms_and_conditions_for_participation.pdf

The first issue is how long is the PHMP. If you think your personalized PHMP will be only three years from the date you sign the VRP contract, you are wrong. See the terms and conditions link. http://www.dos.pa.gov/ProfessionalLicensing/OtherServices/ProfessionaHealthMonitoringPrograms/Documents/terms_and_conditions_for_participation.pdf.

Upon signing and submitting the contract to your case worker, your compliance is necessary. (You have now admitted an addiction which causes an impairment to practice safely. See my other blogs on why not to do that.) The three year period only commences upon your licensing board’s approval of that contract–thus becoming a board ordered agreement that they can enforce. However, what your PHMP caseworker intentionally omits telling you is that it takes 3, 6, or maybe 9 months for your licensing board to approve your enrollment contract. As such, the three-year term of the PHMP is really 39, 42, or 45 months. This becomes excruciatingly long.

Secondly, every professional expects their PHMP caseworker to advocate for their return to practice. Each enrollee hopes to have someone assist them navigate the complexities of the drug testing, treatment, and evaluations. Within several months of PHMP enrollment, whether your contract has received board approval, reality clashes with expectations. Every participant with whom I have spoken quickly realizes that “their advocate” — their PNAP or PHMP caseworker, is merely an enforcement officer. This enforcement officer does not help, but merely enforces the terms of the contract of sobriety into which you the professional has entered.

Your PNAP, PMP, PHMP, VRP case worker demands payment, drug testing, re-drug testing, and all medical records. They require retests and timely answers to all questions. East case worker will be the first to suggest a violation of the program and seek automatic and lengthy extensions for failing drug test for other program protocols. Your advocate becomes your violator, cop, the PHMP enforcer – not an advocate for you.

Lastly, if you have been drug free for 36 to 45 months, you the professional would think your compliance warrants license reinstatement without restriction. However, there are several additional steps in the process of which the case worker never discloses until the three year time period has run, thus delaying reinstatement longer.

Each participant must pass fitness for return to work evaluations. These evaluations delay full reinstatement for significant time periods. Case workers only schedule these evaluations at the end of the programs. A mix of participant and expert scheduling coordination, report generation and final approval by PHMP supervisors extent your PHMP enrollment many more months.  Thereafter, petitions to the board for reinstatement must be filed, for which hearings and decisions could take additional months. All the while, the professional must remain compliance in the program. None of this is explained to the unknowing and scared PHMP participant.

It is at the end of the PHMP 3 year time period when case worker manipulation is rampant. Specious drug test violations magically show up. Chain of custody protocols become suspicious. Allegations of participant “no showing” or lost samples for drug tests are routine. Case workers begin to unilaterally extend the PHMP time period by refusing to schedule fitness for work evaluations. Refusing to advocate for you the professional becomes the final delay tactic of choice.

If you have been in the program for drug and alcohol use and now you’re being required to undergo a mental health evaluation for no reason, they will seek to extend your enrollment for noncompliance. If you received drug treatment, but were not told you had a mental health diagnosis (anxiety otherwise unspecified) and you have not received any mental health treatment for three years because no one suggested it, recommend it, or require it, your case worker will attempt to delay your fitness for return to work for now a mental health evaluation. These are examples of your advocate refusing to advocate on your behalf.

Legal counsel is necessary to insure that the board understands the arbitrary and capricious nature of case workers’ lack of support, advocacy, or basic assistance in helping you get through the program. Frayed nerves, empty wallets, and frustration rule the professional PHMP participant’s day. Please call me to discuss missed drug tests, positive drug tests, or delayed scheduling of fitness to return to work evaluation. Please call me to discuss the abusive, obnoxious and demeaning caseworker treatment of you in your attempt to get back to your professional life. Lets file that petition for reinstatement and get you out of the PHMP in the time they suggested.

The PHMP program is only available to the following licensees:

Chiropractic
Dentistry
Medicine
Nursing: RN Law and PN Law
Occupational Therapy
Optometry
Osteopathic Medicine
Pharmacy
Physical Therapy
Podiatry
Psychology
Social Work, Marriage and Family Therapists and Professional Counselors
Speech-Language Pathology and Audiology
Veterinary Medicine

Fighting and Reporting Out-of-State Discipline to Pennsylvania’s Licensing Boards

A consistent and significant problem in many Pennsylvania disciplinary licensing matters I handle involve professionals who mistakenly stipulate to discipline in another state and then mistakenly fail to report the discipline to Pennsylvania’s licensing board. The reporting must be done within ninety days of the final disposition of that matter. This is a statutory requirement and set forth at 60 P. S. §221.1.

Failing to report is huge disciplinary error easily avoided. Pennsylvania’s licensing boards (including Nursing, Medical, Pharmacy, Osteopathic, Automobile, Real Estate, Social Work, Marital Counseling, or Psychiatry) receive notification of disciplinary decisions from other jurisdictions based upon information provided in many traveling professional’s applications for a second or third state license.When a final disciplinary order is entered in another jurisdiction, that jurisdiction communicates to every state for which the licensee holds a license. Pennsylvania is typically one such jurisdiction because many professionals secured their first professional license here upon graduating from one of our many fine teaching institutions. Failing to report a discipline is easily discovered by, and the basis for discipline in, the Commonwealth of Pennsylvania.

With regard to the factual basis of any disciplinary proceeding, I see the same mistake many times: inexperienced council or unrepresented professionals erroneously agree to discipline and sign agreements or stipulations unaware of how the terms of the agreements will affect a Pennsylvania licensee. To the inexperienced practitioner (attorney or professional), seasoned state disciplinary counsel seek and secure amazing factual stipulations that admit medical errors, professional incompetence, or drug and alcohol impairments. These factual stipulations are then linked to legal stipulations that satisfy each jurisdiction’s legal burdens for suspension, probation, or revocation of a license. Once this is done, discipline in Pennsylvania is inevitable.

After agreeing to certain facts and what may seem moderate discipline, a certified order of stipulated facts and discipline makes its way to Pennsylvania. The unrepresented professional may forget this fact, but agrees to the discipline because of an inability to hire experienced counsel or the prohibitive cost of mounting an effective defense. Unfortunately, Pennsylvania’s respective licensing board commences its own disciplinary proceeding based upon the factual and legal stipulations to which the licensee has already agreed, whether or not they reported such to Pa. Hence, I am called to address a second disciplinary process commenced in Pennsylvania.

The case of Phillip Romanelli v. Bureau of Professional and Occupational Affairs, 2011 Comm.Ct. Lexus 911 (November 1, 2011), is a clear example of the pitfalls of failing to fight a discipline in another state, failing to report the discipline, and then failing to appear and contest Pennsylvania’s discipline. Romanelli lost his license in another state, failed to timely report such and then decided too late to fight Pennsylvania’s proceedings. Ultimately, Pennsylvania’s license revocation proceedings were allowed.

The Romanelli case makes clear that it is the licensee’s responsibility to respond to all litigation documents. Failure to do so will be at one’s own pitfall. The dual difficulty in these cases is binding decisions from another jurisdiction and traveling to the Commonwealth. It is important to contest every aspect of every proceeding in another jurisdiction and not stipulate to facts that will be included in any final decree or decision of a licensing board. Stipulations to unfitness, incapacity, professional misconduct, or drug and alcohol addictions and impairments will allow the Pa. boards to restrict, limit, revoke, or emergently suspend your license.

Do not ignore Pa. corollary disciplinary actions merely because you are now practicing your profession elsewhere. A subsequent discipline in Pa. will have to be reported back to your new home state where one disciplinary matter was just fought. Inability to travel to Pa. or not practicing in Pa. are not basis to ignore these proceedings. I represent many individuals residing and practicing throughout the United States with an initial Pa. license. Many of my clients are professionals unable to return to Pennsylvania to address the hearings or deal with the Pennsylvania Court filings. I fight the case in Pa. while you remain home in your new adopted state.

Stipulations to a monitor program or treatment in another jurisdiction will become the basis for Pennsylvania to require the same or suspend your license. Pennsylvania’s monitor program, PMP or PHMP, is governed by an overly restrictive and statutorily required boilerplate contract. Even if you fail to report the discipline, which is a separate basis for discipline in PA, agreeing to a monitored program outside of Pa will result in Pa’s version being forced upon a licensee in Pa. Do not sign any such agreement without fighting that case.

Currently I represent an individual who was counseled incorrectly on this exact issue. She is now confronted with a non-Pennsylvania disciplinary action/monitoring requirement being utilized by the Pa. licensing board to investigate her for both for failure to report and the necessity of monitoring. She has secured new non-Pa. counsel to open and contest the underlying disciplinary actions so as to eliminate the possibility of having to enter the PHMP and being disciplined for failing to report a discipline. Returning to the first disciplining state and re-contesting agreements or stipulations is the only way to proceed.

Please call me to discuss any non-Pennsylvania disciplinary action and its ultimate affect on your underlying Pennsylvania license. Please call me to discuss the requirements for reporting you’re non-Pa disciplinary action on your active Pennsylvania license.

Please call me to discuss any Commonwealth of Pennsylvania enforcement action you receive as a result of a non-Pennsylvanian disciplinary proceeding or agreement. Please call me to discuss negotiations and strategy of your non-Pennsylvania disciplinary matter with the anticipation of having to report the same to the Pennsylvania licensing authorities.

Increased LIcense Enforcement –Work Place Erros and Drug Diversion Issues

The cross roads of my legal practice, criminal defense and professional licensing defense, is becoming a very busy place. Increased enforcement from the various license boards for even minor regulation violations has become rampent. I daily receive telephone calls from many licensees whose health care employers blame them for a variety of general work place deficiencies that are not a licensee’s fault or responsibility. Strident, hard working and ever listening, I defend these professional licensees from the myriad of unfair employment circumstances that enter the realm of State Board discipline.

Our current heightened enforcement environment is due to many reasons, all of which are irrelevant for this blog. Typically, though, prior medical and nursing malpractice claims force health care employers to reorganize work place protocols for care, documentation, and medication administration. These changes in administration protocols are poorly thought-out, the front line nursing staff is not consulted, and most new processes can’t be implemented or simply don’t work.

When the new program’s deficiencies are discovered, work-loads are increased to levels that are unsustainable. Human break downs occur and the diligent sacrificing CNA, LPN, or RN with no insurance, or no time to care for themself, make a minor work place mistake. Through no fault of their own, placed in an impossible work environment, and tasked with job responsibilities that two or three people couldn’t perform, mistakes will occur. Job termination happens and the health care provider must report to the state board the errors.

Unfortunately, the hardest working health care professionals are the first ones to be accused and cast aside. However, not before statements are taken, admissions to certain activity drawn out, then termination is an inevitability. Now an investigator calls to accuse and scare. Call me before you talk to anyone.

The economic downturn combined with contract employees with no health insurance has also created the perfect storm for diversion cases. Either self-medicating (drinking or using illegal drugs) or diverting readily accessible medical grade narcotics has become a huge problem as of late.  These difficult cases begin when a health care provider does not care for them self, or do not go to doctors to update prescriptions, or simply ignore their own medical and mental health break downs. Caring for everyone but themself makes this worker susceptible to diverting prescription waste for their own usage.

If this is taking place, a drunk driving offense, or on the job injuries requiring blood drawn for OSHA compliance, will result in a positive drug test.  A positive blood or urine test when placed in context with the a heightened reporting burden and responsibility of the employer/health care provider, requires automatic termination and potential license and criminal ramifications become very real issues.

However, both proof of a theft and the medical basis for the medication in one’s blood are two evidentiary hurdles investigators can’t get over. Either practice or custom work place deviations from the PIXUS, or any other type of self counting drug dispenser, due to sharing of passwords complicate this issue. Long term documentation of medical conditions and prescription usage will also discourage prosecution. Under either circumstance, statements should not be given, call backs to Board or Attorney General investigators should be delayed, and counsel secured.

Read my other blogs on the significance of PNAP and how going into this program is not the best, first choice, for many health care providers.  Please call me to discuss your case.

Remember, Update Your Registered License Address

A recent Common Please Court cased presents an opportunity to discuss the importance of timely renewal of all professional licenses and your registered address with the State Board of Occupational Affairs. In the case of Joel Poskin v State Board of Nursing, Poskin sued the State Board of Nursing seeking to have the Court compel the Board to expunge his disciplinary record of sanctions for his own failure to timely renew his license and thereafter for practicing nursing without a license. He complained that the Board failed to timely update his mailing address, which failure resulted in him not receiving his license renewal information and, consequently, causing his license to lapse and him practicing without a license, warranting sanctions that now permanently affect his ability to secure employment.

Poskin posited his claim as one of a denial of Due Process under the State Constitution based upon the effect of the disciplinary action was having on his ability to gain employment. Poskin argued that the Board’s failure to identify license suspensions for administrative versus substantive causes was arbitrary and capricious without a basis under the due process clause.  As a result of the improper licensing disciplinary scheme, Poskin argued the State Board of Nursing denied him is procedural Due Process constitutional rights.

The State board of Nursing objected to the entire complaint/cause of action, arguing that the trial Court did not have jurisdiction and the complaint itself did not state a cause of action for which any remedy existed. The Court reviewed the State Due Process clause and concluded that Poskin’s argument had no place in a judicial court; rather, sufficient procedural safeguards exist in the State administrative procedures code for Poskin to seek redress there. However, because Poskin sought to have the Court compel the Board to change its administrative procedure, his claim was more of a Mandamus action for which the court had no ability or jurisdiction to entertain.

The Court emphasized the fact that Poskin did not update his address for over twelve months, causing his own contravention of the regulations which were properly promulgated and in effect. The result was that Poskin’s case against the Board was dismissed, his prior disciplinary record was not expunged, and he spent even more money on counsel fees. All of this conduct was potentially precluded merely by keeping up to date on all board registered license addresses and notifications so that no license is lost or disciplinary action taken due to mere inadvertence.  Use email addresses, maintain diligence of notification telephone numbers, and, by all means, keep addresses updated.

%d bloggers like this: