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.

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.


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.


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.

Nurse, Doctors, and Intimate Relationships with Patients

Most health care related professional licensing schemes contain a uniform proscription against engaging in sexual intimacies with clients.  This sexual conduct bar does not depend on consensual or non-consensual acts.     Violating this conduct is the first and surest way to lose your professional license.  Prior relationships with current licensee and current relationships with former patients also creates huge problems.

The General Assembly, through the Pennsylvania Code defines  Sexual intimacies as romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include the following:

  • (i) Sexual intercourse, or any touching of the sexual or intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.
  • (ii) Nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature.
  • (iii) Sexual invitations.
  • (iv) Soliciting or accepting a date from a client/patient.
  • (v) Masturbating in the presence of a client/patient or encouraging a client/patient to masturbate in the presence of the licensed marriage and family therapist.
  • (vi) Indecent exposure, kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.  49 Pa. Code § 48.1
Section 49 Pa. Code § 21.146a, is a catch-all Pennsylvania Code provision setting forth as a procedural matter, not even a substantive violation,  a rule stating:
  • (a)  The consent of the patient to any sexual impropriety or violation is not a defense to any disciplinary charge for violation of the act or this subchapter.
  • (b)  Evidence of specific instances, opinion evidence, or reputation evidence of a patient’s past sexual conduct is not admissible in proceedings brought under §  21.148(b)(9) (relating to standards of nursing conduct).  The Board may consider sexual relationships between the nurse and the patient occurring prior to the professional relationship.
  • (c)  A nurse who attempts to raise as a defense an argument that conduct prohibited as a sexual violation or sexual impropriety was necessary or appropriate to the treatment of a patient shall be required to demonstrate competency in practice which relates directly to the treatment of sexual function or dysfunction. This competence may be demonstrated through educational training and supervised clinical experience. Appropriate discussions of sexual matters between a nurse and a patient shall be fully documented in patient records.

Apparently this conduct is prevalent in the psychology, psychiatry, licensed marriage and family therapist, and LSW and professional counselor professions.  I say this because the language in each of these licensing regulatory schemes is exact, precise, and consistently repeated throughout.   The law is very clear about this topic: 49 Pa.Code § 47.61 states: Sexual intimacies between a licensed social worker or licensed clinical social worker and a current client/patient, or an immediate family member of a current client/patient, are prohibited.  More importantly, licensed social workers and licensed clinical social workers may not accept as client/patients individuals with whom they have engaged in sexual intimacies.  For how long you ask?  Sexual intimacies between a licensed social worker or licensed clinical social worker and a former client/patient, or an immediate family member of a former client/patient are prohibited for 7 years following the termination of the professional relationship.


Violation of these provision will warrant disciplinary action:

  • (a)  A violation of § §  47.61—47.63 (relating to prohibited conduct; former sexual partners as clients/patients; sexual intimacies with a former client/patient or an immediate family member of a former client/patient) will be deemed unprofessional conduct and will subject the licensed social worker or licensed clinical social worker to discipline under section 11(a)(2) of the act (63 P. S. §  1911(a)(2).
  • (b)   The consent of a former client/patient or immediate family member of a former client/patient to engage in sexual intimacies with the licensed social worker or licensed clinical social worker is not a defense in any disciplinary action brought under § §  47.61—47.63.

Pennsylvania does not recognize, along with all other states, that a mental health professional’s conduct in engaging in a sexual affair with a patient is actionable in tort (a medical malpractice action).  Thierfelder v. Wolfert, 617 Pa. 295, 327, 52 A.3d 1251, 1271 (2012).  However, our Commonwealth court routinely concludes the State Board of Medicine properly orders, and it is within their authority, that psychiatrist’s license to practice medicine be revoked on ground that he had engaged in sexual relations with his patients.  (“Revocation of psychiatrist’s license was reasonable sanction in light of his conduct.) Starr v. State Bd. of Med., 720 A.2d 183 (Pa. Commw. Ct. 1998); Morris v. State Bd. of Psychology, 697 A.2d 1034 (Pa. Commw. Ct. 1997).



In these cases, the court concludes the Board of Medicine, and other boards, are entitled to deference in their determination of what constitutes “unprofessional conduct” as that term is used in Medical Practice Act (or their licensing schemes) section providing that practitioner may be disciplined for “unprofessional conduct.” 63 P.S. § 422.41(8).  As there is no per say rule of revocation, the regulatory language stated above in the counseling fields is overlapped by the Medical Practice Act.
There, sections 41(8) and (9) of the Medical Practices Act state that the Board shall have the authority to impose disciplinary or corrective measures on a board-regulated practitioner for

  • (8) Being guilty of immoral or unprofessional conduct. Unprofessional conduct shall include departure from or failing to conform to an ethical or quality standard of the profession. In proceedings based on this paragraph, actual injury to a patient need not be established.
    • (i) The ethical standards of a profession are those ethical tenets which are embraced by the professional community in this Commonwealth.
    • (ii) A practitioner departs from, or fails to conform to, a quality standard of the profession when the practitioner provides a medical service at a level beneath the accepted standard of care. The board may promulgate regulations which define the accepted standard of care. In the event the board has not promulgated an applicable regulation, the accepted standard of care for a practitioner is that which would be normally exercised by the average professional of the same kind in this Commonwealth under the circumstances, including locality and whether the practitioner is or purports to be a specialist in the area.
  • (9) Acting in such manner as to present an immediate and clear danger to public health or safety.  63 P.S. § 422.41 (8) and (9).

The Boards and the courts consistently determine that having sexual intimacies with clients breaches ethical standards, standards of care, and constitutes immoral or unprofessional conduct.   “Unprofessional conduct” includes “those breaches of trust, confidence and reliance, necessarily attendant upon the intimate relationship of physician and patient, which amount to gross abuses of the standards of professional conduct generally recognized as essential to the proper practice of medicine and surgery.”  As well, the specific regulations above clearly state that it is of no consequence that intimacies occur either before or after a terminated client relationship.  Importantly,

the professional who, during course of therapeutic relationship, engages in sexual intimacies with client may not absolve himself or herself from professional liability by ceasing to provide therapy while sexual relationship continues, or billing for services and masquerading the sex as a therapy. 49 Pa. Code § 41.61. Giddings v. State Bd. of Psychology, 669 A.2d 431 (Pa. Commw. Ct. 1995).
Call me to discuss your legal issues.


Alcohol Use Disorder and Self-Help Remedies — Licensees Be Careful

My blog topics sometimes originate from media outlets  discussing issues that impact my professional clients. NPR published an article this week discussing a new National Institute of Health (“NIH”) alcohol use disorder online self- help tool.  The attached link presents a significant web presence on alcohol consumption, alcohol use disorders, and other NIH discussion pieces on a national alcohol abuse epidemic. NPR, NIH Alcohol Use Disorder Article

The website reveals a national problem with alcohol consumption and provides a means for self diagnosis of one’s alcohol use disorder (“AUD”) through a DSM questionnaire.  In prior blogs I discuss the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) as the tool mental health professionals utilize to diagnose mental health conditions.  An Alcohol Use Disorder is one such identified mental health disease.  The DSM-V, the latest and current version, identifies any person meeting two of the following 11 criteria during a 12 month period as suffering from an alcohol use disorder.

  • Had times when you ended up drinking more, or longer than you intended?
  • More than once wanted to cut down or stop drinking, or tried to, but couldn’t?
  • Spent a lot of time drinking? Or being sick or getting over the aftereffects?
  • Experienced craving — a strong need, or urge, to drink?
  • Found that drinking — or being sick from drinking — often interfered with taking care of your home or family? Or caused job troubles? Or school problems?
  • Continued to drink even though it was causing trouble with your family or friends?
  • Given up or cut back on activities that were important or interesting to you, or gave you pleasure, in order to drink?
  • More than once gotten into situations while or after drinking that increased your chances of getting hurt (such as driving, swimming, using machinery, walking in a dangerous area, or having unsafe sex)?
  • Continued to drink even though it was making you feel depressed or anxious or adding to another health problem? Or after having had a memory blackout?
  • Had to drink much more than you once did to get the effect you want? Or found that your usual number of drinks had much less effect than before?
  • Found that when the effects of alcohol were wearing off, you had withdrawal symptoms, such as trouble sleeping, shakiness, irritability, anxiety, depression, restlessness, nausea, or sweating? Or sensed things that were not there?

As an an attorney representing medical or other licensed professionals possibly suffering from AUD, or other DSM-V criteria disorders, you’re wondering why I’m writing this blog.  The NIH web page, marketing campaign, and DSM assessment tool are very helpful for life correcting and treatment of a medical condition.

However,  licensed professionals should not seek treatment as a result of a self-help assessment in an on-line article, not conducted by a professional.  Such an endeavor could create significant potential professional license exposure. Obviously your health is a paramount concern.  Seek help if you need it.  But before doing so, understand there could be significant legal and professional ramifications.

Licensed professionals who self diagnose themselves and then seek drug and alcohol treatment through any number or type of treatment facilities opens a Pandora’s box of medical records and mental health disclosure issues and potential employment and license reporting responsibilities.   The wrong treatment facility could seek employment related information. Thereafter, under various state and federal regulations, these drug or alcohol treatment facilities (whom the licensee sought for help and stress reduction) become mandatory reporters to state professional licensing boards – causing huge stress. This creates the scenario where someone seeks inpatient treatment and the treatment provider reports a person’s drug or alcohol use to their professional licensing board. This exposes the professional licensee to a disciplinary process.

Self disclosure to any drug or alcohol treatment facility becomes a medical record subject to mandatory disclosure to a licensing board if a petition for a Mental and Physical Evaluation is ordered. By this I mean, once a treating facility reports a licensed professional as suffering from a drug or alcohol use disorder (without any type of criminal or workplace related event), the licensee’s words become the basis for disciplinary action.  Petitions to Compel Mental and Physical Evaluations require disclosure of the medical records from the self-help treatment facility.  The licensee’s words become the proverbial nail in the coffin of any disciplinary action.


Before you proceed through an NIH or other self-help drug and alcohol use disorder assessment and then contact an inpatient treatment provider (which really just wants your money) please call to discuss the legal ramifications of your need for medical care. While your health and welfare are paramount, take into consideration the broader range of factors, including the status of your ability to work, maintain gainful employment, and practice your profession.  If your life is already full or stress (from family, marriage, work,  finances, and life), causing professional downfall, legal fees, or disciplinary action will just add to the current stress level. Eliminating additional stress is a huge factor in maintaining sobriety, maintaining confidence, and psychological stability.

Serious Medical Conditions according to Pennsylvania’s Medical Marijuana Law and How They Relate to Medical Professionals


Pennsylvania began the legalization of medical marijuana with specific limitations on the medical conditions for which a practitioner can issue a prescription for medical marijuana (“MM”).   Act 16 of 2016, Section 403 (a) – Conditions for issuance – allows a physician to certify medical necessity only if all of the following requirements are met:

(1)  The practitioner has been approved by the department for inclusion in the registry and has a valid, unexpired, unrevoked, unsuspended Pennsylvania license to practice medicine at the time of the issuance of the certification.

(2)  The practitioner has determined that the patient has a serious medical condition and has included the condition in the patient’s health care record.

(3)  The patient is under the practitioner’s continuing care for the serious medical condition.

(4)  In the practitioner’s professional opinion and review of past treatments, the practitioner determines the patient is likely to receive therapeutic or palliative benefit from the use of medical marijuana.

The regulations define Serious medical condition as:

 (i) Cancer.
 (ii) Positive status for Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome.
 (iii) Amyotrophic lateral sclerosis.
 (iv) Parkinson’s disease.
 (v) Multiple sclerosis.
 (vi) Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity.
 (vii) Epilepsy.
 (viii) Inflammatory bowel disease.
 (ix) Neuropathies.
 (x) Huntington’s disease.
 (xi) Crohn’s disease.
 (xii) Post-traumatic stress disorder.
 (xiii) Intractable seizures.
 (xiv) Glaucoma.
 (xv) Sickle cell anemia.
 (xvi) Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.
 (xvii) Autism.

For the medical licensee seeking a medical marijuana card, the significance of these medical conditions cannot be understated.  A Pennsylvania medical licensee (nurse, doctor, dentist, and all others)  will have to suffer from a serious medical condition.  A referring medical marijuana practitioner  will have to certify the professional licensee’s serious medical condition necessitates marijuana for therapeutic or treatment reasons.  The practitioner will have to perform a completed and full assessment of the patient’s medical history and current medical condition, including an in-person consultation with the patient.  Reviewing the prescription drug monitoring history of that patient/licensee will also be necessary.

A MM practitioner will have to credibly determine that imminent disability is present, warranting therapeutic medical marijuana as all other drugs have or are failing.   Well, if the medical professional is disabled, they can not do their job.  If they are high on medical pot, the Boards think these licensees probably should not be permitted to practice their profession.

The burden of proof in disciplinary cases involving drugs or alcohol is whether the licensee suffers “from a drug or alcohol addiction or impairment or a medical condition that renders them incapable safely practicing.”  If a medical licensee’s MM practitioner suggests to the Department of Health the licensee is medically disabled to a degree that requires the therapeutic use of medical marijuana, a medical record has been generated stating the licensee is almost medical disability from practicing their profession. The medical impairment burden, it could be argued, has been met.

Conversely, if the medical licensee is prescribed medical marijuana (but not disabled), the use of medical grade marijuana renders the licensee under the influence of drugs or alcohol to such an extent that renders them in capable of safely practicing.  This logical reasoning jump  — using marijuana automatically renders one unsafe the practice — is found in other provisions of Pennsylvania law.  Those include the Drug act and Pennsylvania’s DUI statute.


Pennsylvania’s DUI statute, 75 Pa. C.S.A. §3802(d) provides for legal intoxication if the mere presence of marijuana is in one’s bloodstream.  (Pennsylvania is not a drug recognition state where the prosecutor has to put into evidence testimony from a drug recognition expert, a “DRE”, that the level of marijuana in somebody’s blood renders them under the influence and incapable of safely driving.)  Pennsylvania is a per se violation state.  This means that the legislature has determined as a matter of policy, that any marijuana or other schedule II prescription medication in a person’s blood, renders that person automatically incapable of safely driving.

It is not a hard legal argument to suggest that if you can not safely drive because you are high on pot (any amount), the medical professional can not perform their medical  duties because they are high on pot.  Here is where the confidentiality provisions of the Act are important.   Section 301(A)(4) of the Act establishes an electronic database to include activities and information relating to medical marijuana organizations, certifications and identification cards issued, practitioner registration and electronic tracking of all medical marijuana as required under the Act.

Section 301(B)(a) allows for confidentiality of Patient information.–The department shall maintain a confidential list of patients and caregivers to whom it has issued identification cards. All information obtained by the department relating to patients, caregivers and other applicants shall be confidential and not subject to public disclosure, including disclosure under the act of February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, including:

(1)  Individual identifying information about patients and caregivers.
(2)  Certifications issued by practitioners.
(3)  Information on identification cards.
(4)  Information provided by the Pennsylvania State Police under section 502(b).
(5)  Information relating to the patient’s serious medical condition.

My concern is that these provisions in conjunction with other Pennsylvania rules and regulations will be employed against the medical professional who seeks and secures a medical marijuana card.  Your doctor must provide this information to the Department of Health.  If pot is found in a medical licensee’s blood, getting the medical records from their doctor (who will be discovered through the data base) is very easy.  Or, the licensee will be compelled to identify and provide their MM practitioner and his records at a Board ordered evaluation.

My experience in Pennsylvania’s heightened enforcement environment strengthens my conviction on this point. Currently every single DUI, workplace positive drug test, or other minor legal infraction is generating Board ordered mental and physical evaluations. The Boards are getting ready for a waive of intoxicated professionals.  They are gravely concerned for the well being of the Commonwealth’s citizens.  The Boards figure, get any current licensee help, stripped of their license, or at least in the Board’s radar so that when that licensee starts legally or illegally getting high and they learn of it they will be ready.   Any issue that brings the medical professional – high on legal Pennsylvania medical pot – to their respective Board’s attention will become the subject of a targeted enforcement scheme to strip their license.


Call me to discuss your medical condition, medical needs, and how to proceed.




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.

A Great Commonwealth Court Appellate Review

April has been a busy month for appellate decisions.  A recent case of my was decided in my client’s favor.  Important lessons are learned from this case.

On March 27, 2015, the Board issued an order to show cause why Freeman’s license should not be suspended, revoked, restricted, or a civil penalty imposed, for violating the Practical Nurse Law, 63 P.S. §§651-667.8, and the Criminal History Record Information Act (CHRIA), 18 Pa. C.S. §§9101-9183. The six counts set forth by the Board as follows:

(1) under Section 16(a)(5) of the Practical Nurse Law, 63 P.S. §666(a)(5),3Link to the text of the note because Freeman was convicted of a crime of moral turpitude (criminal conspiracy to commit theft by deception from Home Depot);

(2) under Section 16(a)(5) of the Practical Nurse Law, because Freeman was convicted of a crime of moral turpitude (theft by deception from a Majestic Oaks resident);

(3) under Section 9124(c)(2) of CHRIA,4Link to the text of the note because Freeman was convicted of a misdemeanor related to the profession (theft by deception from a Majestic Oaks resident);

(4) under Section 16(a)(4) of the Practical Nurse Law, 63 P.S. §666(a)(4),5Link to the text of the note in that Freeman [*4]  committed fraud or deceit in securing her admission to practice (by failing to truthfully answer the question about having pending criminal charges on her biennial renewal application);

(5) under Section 16(a)(8) of the Practical Nurse Law, 63 P.S. §666(a)(8),6Link to the text of the note in that Freeman was guilty of unprofessional conduct (by committing theft by deception from a Majestic Oaks resident); and

(6) under Section 16(a)(3) of the Practical Nurse Law, 63 P.S. §666(a)(3),7Link to the text of the note for violating the Board’s regulation at 49 Pa. Code §21.148(b)(4),8Link to the text of the note which prohibits nurses from misappropriating property or money from patients (by committing theft by deception from a Majestic Oaks resident).

When the board entered a penalty of license suspension rather than probation. Factually, my presentation of the evidence at the hearing was given great weight on appeal.

Freeman testified on her own behalf. Regarding the criminal charges that led to ARD, Freeman explained that a friend had asked her to drive her to Home Depot to make a return. Her friend did not have a receipt or her driver’s license, which the store required to process a return. Accordingly, Freeman gave her driver’s license to the store clerk. While Freeman was waiting for the return to be processed, her friend borrowed her car keys and placed shoplifted merchandise in Freeman’s car.

Regarding the conviction for theft, Freeman acknowledged that she used a patient’s personal financial information to pay her utility bills. She explained:

Well, at the time, I was raising my son on my own as a single mother. Everything was on the verge of being cut off. You know, I didn’t want to have to go back to the shelter. I made a stupid decision to do that.

Notes of Testimony (N.T.), 7/2/2015, at 33; R.R. 56. Freeman expressed remorse for her actions, stating:

I mean, I’m just nervous because — you know, I worked so hard to get where I am today. I do regret the — some of the decision[s] that I’ve made, because I love my career. I love helping people. I love what I do, and based on the decisions that I’ve made, it’s just jeopardizing my whole career. I had to spend lots of money, you know, for lawyers and court costs, fees and everything. But yes, I do regret being here today, in the situation that I’m in today, I mean.

Id. at 43-44; R.R. 66-67.

Freeman recounted the difficult circumstances she overcame in her personal life. Freeman explained that, after graduating from high school, she became involved in an abusive relationship for approximately one year. She moved to a shelter, where she lived for two years. Id. at 46; R.R. 69. While living at the shelter, Freeman enrolled in a certified nursing assistant (CNA) training program and obtained her CNA license. She found employment and, after saving some money, moved out of the shelter and into a one-bedroom apartment. Shortly thereafter, Claimant gave birth to a son, for whom she was solely responsible because the father was incarcerated. Freeman worked several jobs while continuing her nursing education and, in April 2013, earned her certificate in practical nursing.

As I have said many times, mitigation evidence is huge.  Handling these cases at a hearing requires trained counsel to properly distill the facts for the court.  On appeal, finding the winning argument also takes experience.  In this case, the multitude of criminal allegations confused the Board.  It disciplined her for a conviction she did not suffer.

Freeman challenges the Board’s sanction because it cited crimes for which she was not convicted and facts not in the record. The record showed that Freeman pled guilty to one count of conspiracy to commit theft at Home Depot and one count of theft for stealing financial information from a nursing home resident. She was not convicted of stealing the resident’s jewelry; that criminal charge was nolle prossed. The Commonwealth responds that it matters only that Freeman was convicted of theft. Whether it was theft of jewelry and banking account information, or just banking account information, is irrelevant. The Board argues that its reference to a conviction of theft of jewelry was harmless error. We disagree.

In making its decision to increase the penalty, the Board stated that “[Freeman] was convicted of theft for stealing jewelry and using the bank account of an elderly patient to pay her personal bills.” Board Adjudication, 7/26/2016, at 1; Freeman Brief at P29 (emphasis added). This fact is not supported by the record. The charge related to theft of jewelry was nolle prossed, and there is a difference between a criminal charge and a criminal conviction. Freeman asserts this requires a reversal of the Board’s sanction. The Board responds that the record supports this disputed statement and directs this Court to the Hearing Examiner’s finding of fact that “[t]he charge of Theft by False Impression was the result of [Freeman’s] theft of property including jewelry and checking account information….” Proposed Adjudication, 11/19/2015, at 5; Freeman Brief at P39.

A charge is an accusation or allegation that a person committed an offense. By contrast, a conviction is a finding by a court that a person is guilty of a criminal offense. In short, the finding of fact cited by the Board does not support its assertion that Freeman was “convicted” of “stealing jewelry.”

We won this case.  The license suspension was reversed.  The case has been sent back down to the Board.



PHMP — Pennsylvania — How It Really Works

Here is an email I received this week

RN w a PA license started pnap program 4 yrs ago and they will not let me out if the program. I fulfilled all the requirements and I’m over the amount of time stated in my contract. Every months they come up w something new and threaten to add another year to three. They also threaten if I contact a lawyer I can kiss my license goodbye and I truly believe they have the power to do anything at this point.

They treat me as if I have a substance abuse and test me relentlessly and at one point bc of ice n snow I missed testing they cut my hair and did hair analysis which was negative. In four years I have never had a positive test. And that’s w 1,2,3,4 times testing. Month. I was supposed to be released in November 2016 I missed a call in the day I was leaving for the beach. Packing for 6 kids 10yo and younger for a week distracted me a bit. That is when they threatened to add 3. More yrs for noncompliance. I’m already over my time! Yesterday I could not make a test bc 3 of my kids were vomiting and Had high fevers I could not drag them out w out torturing them. So again I’m getting threatened w more time ands or never seeing my license again. I went I to this program thinking they were here to help me. Obviously they are here for the $$ and to make near impossible to complete the program. I’m stuck. They have taken all the money I have. No I’m finding out it’s not the pnap making the calls it’s the testing company.

This is email presents legal issues about which I receive calls every week.  This email is reflective of the PHMP and PNAP, how the treat their enrollees in the program.  Read this email again before signing any documents and call me.

More importantly, understand the exploding opiate addiction pain medication problem our cities, states, rural areas, and country is facing.  Stepped up offering and then enforcement of the impair professional program, and all of its terms and conditions, is reflected in the statistics a recent news article discussed. Video of ABC News Investigation

However, the statistics cited int he article,73% of all disciplinary cases are for drug and impairment issues, only reflects the stepped up threats, coercion, and intimidation the program administrators are using in convincing people to go into the program that some do not really need.  Read my many other blogs discussing how single offense DUIs, Public Drunkenness, and other minor infraction are brought tot he Board’s attention, resulting in PHMP and PNAP “Letters of Concern” being sent to professionals and scaring them into the program.

Call me to discuss your case.





JNET, Criminal Charges, and What to Do Next

The summer is over. All the fun in the sun in done. Now, back to work. But for professional licensees who had some criminal justice interactions over the summer that have been put off, ignored, or quietly resolved, these issues need attention again. This is because by now, or soon to your mailbox, you will receive notice from your professional licensing board of their knowledge of your criminal charges.

Fifteen months ago, when the Nursing Board changed its regulations to require 30-day reporting of criminal charges (not conviction), the Board needed to begin the process of making sure its licensees were timely reporting criminal charges. While the Nursing Board may have already been a subscriber to JNET, it stepped up surveillance of every licensee. What does this mean?

The Nursing Board, and every other Board, became a daily recipients of JNET computer searches results of its licensees’ criminal interactions. JNET is now an integral part of every licensing Board’s investigatory process. The Boards are subscribers to JNET to receive daily notice of any positive hit of licensee’s criminal charges through a computer algorithm search of its queried database.  AND BELIEVE ME, THE BOARDS ARE GETTING NOTICES EVERY DAY.  IN TURN, THIS MEANS THAT THE BOARDS ARE ASSIGNING THE NEW CASES TO THE PHMP, VRP, AND/OR PROSECUTORS, TO INVESTIGATE AND IF NECESSARY, FILE ORDERS TO SHOW CAUSE, PETITIONS FOR MENTAL AND PHYSICAL EVALUATIONS, OR FILE DISCIPLINARY CHARGES.

What is JNET – From the JNET WEBSITE it reads

JNET is the Pennsylvania Justice Network. The Pennsylvania Justice Network (JNET) is an integrated, secure justice portal providing an online environment for authorized users and systems to access public safety and criminal justice information. JNET is the Commonwealth’s primary public safety integration service provider. JNET is a result of a collaborative effort of municipal, county, state, bordering states and federal justice agencies to build a secure integrated justice system. While each agency maintains ownership and control of their data, JNET allows authorized criminal justice and public safety professionals to securely and safely access information from multiple providers through one interface.

The Pennsylvania Justice Network (JNET) is the Commonwealth’s primary public safety and criminal justice information broker. JNET’s integrated justice portal provides a common online environment for authorized users to access public safety and criminal justice information. This critical information comes from various contributing municipal, county, state, and federal agencies. One-time data entry has improved the effectiveness of participating agencies, and has significantly improved data accuracy throughout the Commonwealth’s criminal justice system. Information entered into a records management system at the onset of an investigation can now follow the offender throughout their criminal justice tract. As offenders pass through the gateway of justice all the way to post-sentencing supervision, offender information flows in concert with the offender’s progression.

JNET allows users to subscribe to real-time event messages for comparison against offender watch-lists. When an event message is published, it is compared against watch-list records and the subscriber is automatically notified via email. When a significant event such as an arrest, disposition, want, warrant, state parole violation, PennDOT change of address or death occurs, users are alerted to check secure JNET for detailed event information.

The licensing boards know of any criminal charge, public drunkenness, disorderly conduct , DUI, drug charges, and more withing 24-48 hours of fingerprinting and processing in ANY STATE IN THE COUNTRY. Reporting your criminal interaction timely and completely is important. Failing to report is a separate disciplinary event from the criminal offense.

Responding to “Letters of Concern”, VRP enrollment letter, understanding what VRP, PNAP, PHMP case workers can and will do once you begin talking with them is pivotal to saving your license. Read my web site and other blogs. Attorneys handling criminal cases do not understand this professional licensing scheme, the evaluation consequences, and the prosecution attorney’s role is to protect the public .

Call me to discuss the letter in your hand, the petition sitting on your desk, or ask the questions you have after speaking to a VRP case worker who just told you to have your boss call them so you can keep working!!!!

Gross Immorality Behavior against Demented Patients Requires Nursing License Revocation

Today’s blog concerns inappropriate nurse behavior, attitude, and conduct towards our senior citizens which will become the basis for disciplinary action and/or license revocation. In Leanne Vitteck, LPN, Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Nursing, the appeals court was asked to determine whether the State Board of Nursing properly permanently revoked a nurse’s license for gross immorality.

Here nurse Vitteck was accused to have forcibly removed a sensor monitor from the hand of the 89-year-old nursing home resident who suffered from dementia. Vitteck was accused of stating that she was “sick of being a f*cking babysitter” to this victim. Vitteck was also accused of allegedly threatening to “break the hands” of 97-year-old resident suffering from dementia. On a third occasion the same nurse threatened a wheelchair bound resident with physical violence.

Vitteck was formally charged with failing to respect and consider patient’s rights to freedom from psychological and physical abuse, failing to safeguard patients from incompetent, abusive or illegal practices, and engaging in gross immorality and being unfit or incompetent by reasons of habit negligence. These allegations are in violation of Sections 16(a)(1), (2), (3) and (8) of the Practical Nurse Law and Sections 21.148(a)(2) and (3) of the Nursing Board’s regulations, 49 Pa.Code §21.148(a)(2) and (3), which set forth the standards of nursing care. At the administrative hearing, the prosecutors presented eyewitness testimony to each physical and verbal confrontation. The witnesses confirmed the factual allegations of both the Vitteck’s behavior. Importantly, the witnesses also confirmed the excessively difficult patient, each of which was suffering from severe dementia.

The Board found the facts were relevant and appropriate to revoked permanently Vitteck’s license because she was “unfit and incompetent to practice by reason of habits, negligence and other causes and that the nurse engaged in unprofessional conduct by failing to respected consider patients rights to freedom of psychological and physical abuse and to safeguard her own patients from abusive practices.” The Board concluded that rehabilitative efforts, such as retraining or suspension would be futile and that the nurse’s profanity, verbal threats, and physical conduct together, not independent of each other, warranted revocation.

The appeals court was very clear in its conclusion that the Board’s decision coupling the physical and verbal abuse together warranted suspension. The court indicated that profanity in and of itself, along with verbal inexcusable, discourteous, and reprehensible behavior is not typically enough to establish gross incompetence. The court cited several cases indicating that professionals who use profanity towards patients, clients, and other professionals does not support a showing of professional incompetence. “While it may be unwise, it does not rise to amount of incompetence which warrants revocation of a professional’s license.”

However, the Court went on to say the Board was correct that in the context of long-term nursing facilities LPNs must “[r]espect and consider, while providing nursing care, the individual’s right to freedom from psychological and physical abuse” and “[a]ct to safeguard the patient from incompetent, abusive or illegal practice of any individual.” 49 Pa.Code §21.148(a)(2) and (3). Verbal abuse is defined as any use of oral written word gesturing language that willfully includes disparaging and derogatory terms to residents or their families or within hearing distance, regardless of age ability to comprehend. The board determined that Vitteck failed to respect and consider, while providing nursing care, the individuals’ right to freedom from psychological and physical abuse.

Importantly, the court affirmed the Board’s holding that merely slapping the patient’s hand, where the patient is in danger falling out of bed cannot by itself constitute a violation of the standard of nursing care where such care is “calculated to promote the patient’s well-being.” However the board held that factually Vitteck was not engaging in any nursing conduct that was calculated to promote the patient’s well-being. The Board concluded that the records reflected profanity in conjunction with physical inpatients and forceful and aggressive disciplinary behavior in no way would promote the well-being of a patient suffering from dementia.

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