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.
Advertisements

Opioid Addiction and the Pharmacist or Doctor’s New Legal Responsibility

Two New York Times headlines affirm the federal and state government responses to pharmacists and medical practitioners’ complicity in the national opioid epidemic.   C.D.C. Painkiller Guidelines Aim to Reduce Addiction Risk and The End of Prescriptions as We Know Them in New York say it all.

Commonwealth of Pennsylvania pharmacists and medical practitioners must become fully familiar with new federal opioid prescription guidelines. In Pennsylvania, the Commonwealth Medical Board released New Opioid Prescribing Guidelines. In 2014 Pennsylvania House Resolution 659 of 2014 directed the Joint State Government Commission to establish a legislative task force and appoint an advisory committee to study opioid addiction in Pennsylvania.  As well, the Effective Prescribing Practices and Pain Management Task Force drafted “Pennsylvania Guidelines on the Use of Opioids to Treat Chronic Noncancer Pain.”

These Commonwealth medical regulatory publications establish a significantly heightened corresponding responsibility for pharmacists filling opioid prescriptions and basic prescription writing responsibility for doctors when writing opioid prescriptions.  New York’s huge step in eliminating all written prescriptions, which eliminated 85% of opioid prescriptions in New York State, is coming to the Commonwealth of Pennsylvania.

The new federal CDC dispensing guidelines, provide clear recommendations about opioid prescribing for primary care physician’s treating adult patients with chronic pain outside of active cancer treatment, palliative care, or end-of-life care. These guidelines, in conjunction with Pennsylvania’s House Resolution 659 of 2014, set forth proper an effective prescribing practices.

These federal and state directives, along with many more, provide a clear framework for disciplinary action against physicians or pharmacists who violate the guidelines. Practitioners who fail to decrease the amount of opioid prescriptions written in comparison to their geographic peers is easy secured proof of dispensing conduct in violation of new and developing guidelines.  As well, malpractice claims against either the doctor or pharmacist, constituting a reportable disciplinary event, will also trigger disciplinary investigations and potential disciplinary actions.

Please call to discuss any investigation of your pharmacy, pharmacist, or your medical practices prescription writing histories. These investigations may either be ongoing or commenced by state or federal DEA agents, board investigators, insurance malpractice defense attorneys, or plaintiffs attorneys.

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.

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.

%d bloggers like this: