Physician Employment Contracts and Licensee Disciplinary Actions

I spend a majority of my time helping medical professionals secure and keep their professional license. Recently, a physician contacted me to discuss his group practice employment contract and his hospitalist job. Reviewing his employment contract enlightened me on numerous ways a single licensing issue can impact medical professionals’ employment and future employability.

Standard medical group and hospital employment contracts include the following terms to which physicians shall comply:
1.1. At all times engage in the practice of medicine, specializing in ******, and diligently perform all of the normal and customary functions of a physician with such specialty, and ensure that the services of others over whom he has responsibility are at all times at a level of competence that, at a minimum, is recognized as acceptable in the community served by the Department (the “Community”) and at a standard that is acceptable under the applicable Governing Policies and in the Hospital Contract), all applicable legal and accreditation statues, regulations, standards, and requirements, and other recognized professional standards in the Community.

This paragraph is a catch all scope and competence to practice requirement. It is based upon the local practices in the region, not necessarily the training and experience learned in medical school. Competence is also based upon group community peers and their biases and long held beliefs.

1.2. Perform such other and additional duties and functions for and on behalf of Corporation reasonably relating to the planning, management and operation of Corporation’s activities, as shall be assigned to him from time to time by Corporation; 1.3. Perform any and all duties required of, or assigned to, Physician under the Hospital Contract; 1.4. Comply with all policies, standards and procedures of Corporation which Corporation may, from time to time, reasonably promulgate and, as required in its’ discretion, amend;

1.5. Render all services with competence, efficiency and fidelity, and comply with the ethical precepts of his profession at all times.

These clauses focus on how hard can the group or hospital make the physician work, to the groups’ partner’s satisfaction. “Any and all” duties or “all” policies allows the group or medical corporation to impose their will and practices on the physician. Conformity and compliance are the norm. To wear the White Coat getting along to go and get along is the norm. Weekends, holidays, and midnight shifts are necessary and the norm.

1.6. Without limiting the foregoing:

1.6.1. Continuously be duly qualified to perform the radiology services required of him under this Agreement and the Hospital Contract;

1.6.2. Continuously maintain his license, and be in good standing, to practice medicine in the Commonwealth of Pennsylvania;

1.6.3. Continuously possess a valid narcotics license, as issued by the Drug Enforcement Administration (“Narcotics License”);

1.6.4. Continuously maintain his board eligibility in radiology and, within two years, achieve and maintain board certification by successfully completing and passing the Certifying Examination from the American Board of ________ (“Board Certification”);

1.6.5. At all times comply with the policies, rules and regulations of any and all governmental authorities relating to the licensure and regulation of physicians and _________;

1.6.7. Continuously maintain full privileges at the Hospital, and continually maintain membership on the Active Medical Staff (the “Medical Staff”) of the Hospital in the Department;

1.6.8. Abide by and be subject to the bylaws, rules, regulations, policies and procedures of the Hospital, the Medical Staff, and the Department (the “Governing Policies”);

These clauses speak for themselves. A single criminal or disciplinary investigation creates a domino affect. Prescription Drug Monitoring Program (“PDMP”) violations and/or fraud diversion investigations trigger qualification challenges under each provision. A criminal investigation (not conviction) could affect medical staff privilege issues and/or constitute a violation of the employer’s separate Bylaws and governing policies. DEA issues affect prescription writing capabilities. A criminal conviction (as compared to an investigation) will ripple through and trigger these provisions.

Call me before participating in any criminal investigation of your medical practice or individual license. The physician employee must provide annual or semi-annual truthful information regarding any licensing or other criminal involvements whether it involves a license or not. For example: a DUI charge or spouse abuse/domestic assault charge. Be very careful what you say to whom about what investigation. I have represented numerous physicians in non-work related criminal investigations that did not result in criminal charges only because of my involvement early in the process. Sometimes, here, the truth and just talking to “take care of things” is not the correct process!  You always have something to hide!  Do not talk to anyone without consulting me.

In drug use impairment investigations, proceeding carefully and with counsel is even more important. Referrals to Pennsylvania or New Jersey’s Physician’s Assistance Program (“PAP”) is a gray area. It is not an investigation and it is not a criminal conviction. Call me. The VRP-PAP Referral Letter  A PAP referral is not from Pennsylvania’s Medical Board. A PAP referral is confidential and is not communicated to the Medical Board. Do not disclose any PAP communications with your medical group practice administrator! Professional License Issues

What should a physician do if he/she receives a confidential voluntary recovery program referral. Read many of my other webpages and Blogs on what is the VRP. The Disciplinary Process Referral A VRP referral is much different than a confidential petition filed compelling an evaluation. Voluntary enrollment in the monitoring program will automatically restrict a physician’s ability to write prescriptions, hold a DEA license and participation in many insurance contracts, Boards, and federal insurance programs. DO NOT listen to the lies of the PAP case worker or manager who says you may be able to continue working.  Seriously consider the ramifications of a PAP, VRP enrollment. The Medical License Issue
If the Board files a Petition Compelling a Mental and Physical Evaluation, there still is no disciplinary action. Do not tell your work! If the Board expert concludes no impairment, or the prosecution does not file a petition after a referral, then the case is over. Telling your employer too early in the investigation will trigger consequences that are unnecessary.

If the Board’s PHMP approved expert concludes you are unable to safely practice medicine due to a drug or alcohol addiction, which continues, and impairs your ability to practice, this still is not a disciplinary action . The Board prosecutor must file the petition, there must still be a hearing, and that expert must come to court and testify.

If there is a final Medical Board order compelling enrollment in a drug monitoring program, what does this mean. Only after a full hearing and the medical board issuing a Final Adjudication and Order is there a formal disciplinary order. The same process must be complied with for any other basis before a final board order triggers each of the above sections of the contract. Then enrollment is necessary to comply with this contract.
1.6.9. Continuously be empanelled to be paid for services by, and remain in good standing with, Medicare, Medicaid, the health maintenance organization maintained by Blue Cross/Blue Shield of Northeastern Pennsylvania, and any other payors identified by Corporation and/or the Hospital, or as otherwise required by Corporation and the Hospital contract or agreement.

1.6.10. Sign participation agreements with, and provide true and accurate information for his credentials as required for participation in the, Medicare and Medicaid programs and any other insurance programs required by Corporation and Hospital, and agree to be reimbursed in connection with such programs in accordance with the Hospital Contract;

1.6.11. Serve on such medical and administrative committees of the Hospital to which Physician is reasonably assigned, and perform such additional administrative duties as are required by Corporation and the Hospital;

1.6.12. Assist in developing and conducting medical education programs in radiology as reasonably required by the Hospital, and participate as needed in existing educational programs of the Hospital, as required by Corporation and the Hospital;
A physician under any restricted license will not be invited to participate in any of the above committees, boards, or programs. These provisions allow employment termination/contract termination for just about any conduct or activity that results in even a minor blemish on the group or hospital contract.
Call me to discuss your case!!

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PNAP — A New Scare Tactic

A new client recently contacted me regarding a puzzling PHMP/VRP letter he received. After a first offense DUI, the VRP contacted him and scared him to attend an initial evaluation.  The Initial Evaluation    As I have said many times, the PHMP’s “Letter of Concern” is a lie. The PHMP is not concerned. The Letter of Concern.

 

After attending the evaluation, the PHMP caseworker began aggressively pushing this nurse about what to do next. It should have been nothing. It was not.

The VRP sent a second letter offering more care and treatment because “the drug and alcohol evaluator was unable to rule out that you suffer from a drug or alcohol addiction or impairment…” This means the evaluator did not diagnose my client as suffering from any condition that impairs his ability to practice his profession safely. The PHMP/VRP file should be closed after this opinion was rendered. This is a false diagnosis.  “Unable to rule out” is no formal diagnisis of a condition that renders the nurse unsafe. PNAP Scare Tactics

 

It is a new tactic in the PHMP/VRP trap process. The letter identifies three options:, 1) go to an extended inpatient evaluation, 2) go to a second evaluation after 90 continuous days of outpatient treatment, or 3) reject both and PNAP will close the file and prosecution review will commence.  This is PHMP/PNAP/VRP engaging in expert shopping.

As with the first evaluation, the VRP interested professional must pay for the all treatment and associated evaluations. This is PNAP pushing licensees into evaluations once, twice, or as many times as they need to get an opinion PNAP will accept. This is demoralizing to you the professional who is freaking out.  This is a con by the PHMP/PNAP caseworker.  Do not fall for this trick.

The letter proceeds to state: “In order to undergo the extended outpatient evaluation, please comply with the attached document summarizing the terms and conditions of the extended evaluation. If you successfully complete the extended evaluation thereby allowing us to document that you do not suffer from a substance use disorder, your VRP file will be closed and we will notify the Department of State’s Legal Division that we have determined you do not meet criteria for a substance use disorder. ”

It is not the licensee’s burden to prove they do not suffer from a disorder. It is the Board’s burden to prove the licensee does suffer from a condition that renders them unable to practice. The case law rejects this PHMP legal position.

The letter continues, laying out the various terms and conditions a nurse/medical professional licensee would have to comply while going through this process:

To pursue a residential evaluation, please contact one of the following facilities to make arrangements to be admitted within three weeks of the date of this letter: (1) Marworth 800-442- 7722, (2) Caron Treatment Center 800-854-6023, or (3) The Farley Center 800-582-6066. If the results of the intensive evaluation determine you do not suffer from a substance use disorder, your VRP file will be closed and we will report the findings to the Legal Division. Should the intensive evaluation establish that you meet criteria for a substance use disorder, you will be offered VRP enrollment.

These are three captive PHMP evaluator/treatment facilities.  There is no way either of these locations will not find an impairment.  They want your money, your insurance coverage, PHMP’s continued case referrals.

Call me if you get this letter.

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.

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.

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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.

PHMP versus RAMP: A Big Difference

I write blogs about Pennsylvania professional licensing legal developments.  I am also licensed to practice law in New Jersey. I routinely counsel Pennsylvania professionals concerned about their NJ licenses.  There is a huge difference between Pennsylvania’s PHMP and New Jersey’s RAMP (“Recovery and Monitoring Program “).  RAMP was established in 2003 as an Alternative to Discipline program, managed by the Institute for Nursing for the New Jersey Board of Nursing. http://njsna.org/ramp/

Pennsylvania medical professionals who live in New Jersey or Pennsylvania residents also licensed in NJ, but only use their PA  licenses, are exposed to RAMP.  (Obviously also are NJ licensees working in NJ.)  Any Pennsylvania medical professional, who is also licensed in NJ – who receives Pennsylvania PHMP letter – must consider how RAMP will respond if Pennsylvania restricts their professional license.  Any Pennsylvania disciplinary action based upon an alleged impairment of alcohol and drugs will come to NJ’s RAMP attention. Also, NJ licensees must carefully respond to RAMP communications.

A recent NJ appellate case reveals just how different RAMP is from Pennsylvania’s PHMP.  On November 16, 2017 a New Jersey appellate court decided In The Matter of the license of Kevin Rafferty, RN.  He was a certified registered nurse anesthetist and an Advanced Practice Nurse.  Mr. McCafferty‘s licensing problems began in 2013 when three co-workers smelled alcohol on his breath during work.  They levied anonymous complaints to the Nursing Board, which contacted RAMP. This was the only evidence against him.

RAMP contacted  Rafferty via letter, setting forth the allegations that he may have problems related to mental health and or substance-abuse that could affect his ability to practice his profession.  RAMP offered him a private letter agreement and enrollment for a minimum of 90 days.  During this time RAMP requires random observed drug tests, monthly self evaluation reports, and regular attendance in peer support meetings.  Post-enrollment, RAMP then requires an initial intake evaluation.  In my experience this evaluation typically  finds the professional needs to be in RAMP for 12 months.  The 90-day initial RAMP invite is a fraud!

It is this context (which the McCaffrey case reveals)  that RAMP’s enrollment process is distinctly different from Pennsylvania’s PHMP.  RAMP’s initial letter of invite is not really an offer, but an order to each licensee.  PHMP’s initial “Letter of Concern” is a non-mandatory offer for help and does not constitute a demand to enroll.

RAMP’s initial 90-day evaluation period is not based upon a medical expert assessment or determination the licensee suffers from a drug or alcohol addiction that renders them an impaired professional. That assessment comes only after RAMP enrollment and signing of the RAMP 90-day contract.  The licensee is then stuck.

The RAMP evaluation takes place after enrollment, when the agreement sign requires compliance with the terms and condition of the program.  Licensee thinking they are just going to get the 90 days meet the expert, who determines more time in RAMP is required. Now they are stuck and can’t break the agreement.

PHMP’s letter of concern offers an assessment and voluntary disclosure to determine in an impairment exists.   PHMP requires either a finding of an impairment or a voluntary admission of such before enrollment in the program.  Pennsylvania Voluntary Recovery Program (“VRP”) questionnaire includes a provision that the licensee admit to suffering from an impairment.  This is the voluntary admission part of the VRP contract.  I counsel against signing this agreement.  NEVER ADMIT you are an impaired professional.Wait for the Board to file a formal petition to Compel and Mental and Physical Evaluation.  (See my other blogs.)

McCaffrey did not respond the the initial 90 day RAMP letter.  He was determined to be “non-compliant“ with RAMP.  RAMP notified the Nursing Board that “it could not insure the board or the public that McCaffrey was safe to practice.”  The Board subpoenaed McCaffrey to appear before a committee of the Board to answer questions about  appearing at work smelling of alcohol.  McCaffrey appeared, denied the allegations, and brought numerous letters of reference.  The Board still concluded he should enroll in RAMP and proposed a 2nd private letter agreement requiring McCaffery participate.  He refused.

The Board issued a provisional order of discipline compelling McCaffrey to submit to an evaluation and monitoring to determine whether his continued practice may jeopardize the safety and welfare of the public.  This is a distinct different legal standard and burden of proof compared to Pennsylvania’s impairment burden of proof.

NJ’s licensing boards and Courts have long recognized a “community care-taking responsibility” as legal justification that allows government license restriction.  The NJ Nursing Board thereafter issued a final order compelling McCaffrey to enroll in RAMP. The Board determined such was required to satisfy its “mandate to protect the public.” McCaffrey‘s failure to comply with this final order was reported to the national practitioner data Bank. Still no medical determination of any impairment!

McCaffery appealed claiming there was no medical or legal basis to compel RAMP and that absent such, a general order requiring such denied him due process of law.   The appellate court reviewed McCaffrey’s objections to the Board’s order. The appellate court determined the Board maintains oversight over professional licensing for nurses pursuant to the Nursing Law.  Because the New Jersey professional nursing law requires an applicant not be a “habitual user of drugs and alcohol”, McCaffrey‘s potential for alcohol and drug abuse rendered him suspect of meeting the legal requirements of both the Nursing Licensing and Nurse Anesthetist laws.  The court found the Board had the authority even absent a medical conclusion of any impairment.

McCaffrey complained that absent an expert determination that he was impaired or suffered from a chemical dependency, he met the requirements for licensure.  The Board rejected this argument. The court determined the Nursing Board was within its statutory authority based upon the factual allegations, even without even an expert evaluation, that the Board was within its authority to compel McCaffrey to participate in the 90 day private letter RAMP program.  The decision was handed down in 2017.  McCaffrey’s work place situation occurred in 2013.

For the many licenses that practice in Pennsylvania, these procedural differences between the PHMP and RAMP are significant and should be respected. Pennsylvania’s regulatory and statutory framework allow for licensee participation in and evaluation by a board chosen medical expert before mandatory enrollment in the PHMP.  NJ does not allow for this pre-enrollment evaluation, compels participation, and then subjects the licensee to a bait and switch disciplinary monitoring program.

Please call me to discuss either of these programs and any letters you receive from your licensing board.

 

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.

Client References — An Recent Email

Blogs….. what is the purpose?  To inform the public of the legal issues in my practice area practice;  to have potential clients become informed consumers of the legal issues which are going to affect their licenses; to confirm I am the correct attorney to handle their matter.  To that end, how does one know I am the correct attorney.  How can I advise  potential clients that I am the appropriate choice to handle their case?  Client reviews.
That is why I embed AVVO client review buttons on my web site. Click the buttons and read my reviews.  All potential clients do!   However, once in a while, a former client writes me an email updating me about how good their life currently is after I assisted them in avoiding disciplinary issues with their license.  Below is just such an email that I wanted to share.
You may or may not remember me, but you helped me out with my case in dealing with PNAP in 2014 when I was attending anesthesia school. I was just thinking about the whole incident, what a nightmare it was, and how fortunate I was to have found your help. Because of you, I have a fantastic career and a bright future. I read your blog posts and I truly feel crushed for those people going through that special kind of hell that PNAP and the PHMP can bring into a person’s life. Keep doing what you are doing. You’re breathing life back into a lot of people who surely thought their lives were over.
I am attaching a picture of our daughter. She is the best part of my life now. I cant imagine all the time I would be missing out on with her if I had to attend meetings and drug tests. She also says “thank you.”
Thank you for such a wonderful email.  It is a pleasure to wake up on a weekend and check my emails (as all my clients know I daily do at 6 am), sifting through the spam, solicitations, and legal emails, and come across this email.  I remember every former client– all are very appreciative — some, especially so.  It is my pleasure to help every client.  I understand the importance of my legal work and the impact on everyone who makes the momentous decision to choose my services.  It is with this respect and understanding that I handle every case.  Thank you for letting me be in your life and help you!!!

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.

 

 

 

 

Pennsylvania Drug Act Convictions and Collateral Consequent Automatic Suspensions

The complexities of representing licensed professionals in criminal matters always surprises me even though I have handled complex federal and state criminal matters for over twenty years. To effectively represent the licensed practitioner in a criminal case counsel must fully understand the collateral consequences of a criminal conviction under the Pennsylvania Drug Act, 35 P.S. § 780–113 (a). Two provisions of the Drug Act, 35 P.S. §§ 780–123 (b) &(c), are especially important to licensed professionals.

The Drug Act § 113(a) lists thirty six illegal actions involving drugs, prescriptions, record keeping, and other pharmaceutical issues. Section 780- 113(b) identifies which of those thirty six offenses are either felonies or misdemeanors and their respective jail penalties. Drug Act sections 780-123(b)&(c) identify a separate penalty solely targeting the licensed practitioner who is convicted of, or pleads guilty to, either a misdemeanor or felony offense set forth in 35 P.S. § 780-113(a).

When representing the licensed practitioner, 35 P.S. § 780-123(b) & (c) dictates the priority of negotiating a guilty plea to a non-Drug Act offense. An initial goal is to avoid any Drug Act criminal charge and/or conviction. A secondary goal on cases involving drugs is to secure misdemeanor graded Drug Act violations over felonies.

The importance of Drug Act convictions is set forth in § 780–123(a), (b)&(c). Subsections (a) and (b) authorize the practitioner’s licensing board to revoke or suspend the practitioner’s license upon a conviction of any criminal offense, with reasonable notice and an opportunity to be heard. The disciplinary process commences with a Rule to Show Cause and hearings scheduled in the future. The practitioner’s licenses remains active and unimpaired during these proceedings.

Under § 780-123(c), the licensing board shall, upon petition, automatically suspend the professional’s license. This occurs without notice to the practitioner and allows only for a penalty/ mitigation hearing. The automatic suspension penalty is not to exceed one year for the practitioner who pleads guilty, nolo contendere, or has been convicted of a misdemeanor under the Drug Act.

Subsection 780-123(c), was established to allow for automatic suspension of the practitioner who pleads guilty to possessing a controlled substance or paraphernalia. The person is a drug user whom the legislature does not want practicing their profession in a drug impaired manner. This is a simple understanding of the Drug Act’s purpose. The automatic suspension may be stopped only if the Drug Act conviction is for personal use of a controlled substance and the practitioner agrees to participate for 3-5 years in the PHMP impaired professional program. If the impaired professional does not comply in all respects with the PHMP program, the stay of any suspension under section subsection 35 P.S. §780-123(c) will be vacated.

What most attorneys do not understand is that §780-123(c) also applies to the practitioner convicted of any type of record keeping mistake, patient charting errors, or failure to conform to a standard of practice that is charged as a violation of the Drug Act. This is the kicker. If there is a guilty plea to any of the enumerated, but less known subsections of 780–113(a) — for example – (a)21 refusing to make entries in a medical record as required or – (a)28 providing false or incorrect or omitting any material information on a medical report, the practitioner’s Board shall automatically suspend, but not revoke, a practitioner’s license for up to one year for each count of each guilty plea. This action is the same even though no drug use, theft, diversion, and/or impairment is alleged, charged, or upon which a conviction is secured.

Under the §780-123(c) suspension process, the practitioner will not be afforded a due process hearing prior to the Board action suspending the license. The practitioner will be given notice of the suspension and then must petition for a hearing on the appropriateness of the already determined discipline. During this time, the practitioner must not practice their licensed profession.

The practitioner should file a petition to lift the automatic stay, setting forth the basis that the automatic suspension provisions of 35 P.S. §780–123(c) are not applicable. The practitioner must also ask for an expedited mitigation hearing. Here, the practitioner stipulates to the criminal conviction and the application of the automatic suspension under the Drug Act. Then, the practitioner must, through able counsel, put into the record extensive character and employment history evidence and explain the criminal offense. The practitioner must effectively argue why the Board’s exercise of its discretion and its term of automatic suspension, typically the maximum allowed, is abusive and not appropriate.

Case law requires the licensing board explain a decision of a maximum discipline. Typically this is hard for the Board to do and requires a modification of the trigger finger, snap maximum suspension decision. When the Drug Act conviction does not involve any personal use of narcotics and there is no evidence of a drug or alcohol addiction causing an impairment (see my other blogs about the PHMP), compelling reasons to reduce a maximum suspension are always present. This is when practitioners need competent legal counsel that is uniquely aware of the inter-relationship between Drug Act convictions and licensing boards’ administrative cases.

A recent case in which I became involved, after conviction, presents an extreme example of a criminal defense attorney who incorrectly advised a practitioner to plead guilty to misdemeanor Drug Act violations that involved record keeping and medical charting issues. Apparently, counsel also was unaware of the legal burdens and complexities of a criminal charting error or medical record forgery prosecution, which is typically what these secondary Drug Act misdemeanor cases are, counsel negotiated misdemeanor guilty pleas. Unfortunately, the attorney did not know and did not advise the practitioner that her guilty pleas would result in three consecutive automatic license suspensions.

Due to the snail’s pace of licensing disciplinary process, it took two years after the guilty pleas for the Board to commence the disciplinary process and automatically suspend the license. Due to this delay in time, the practitioner could not seek to withdraw her guilty plea due to ineffective counsel. Counsel and client were apparently scared by charged but specious felony forgery offenses. The attorney must have thought he/she did a great job by securing guilty plea offers to misdemeanors with probation.

However, my experience handling these types of pre-criminal charge investigations is that extensive meetings with state board investigators and Bureau of Narcotics Enforcement officers typically eliminate the filing of criminal charges. This avoids any licensing matter. Usually, charting errors and PYXIS drug dispensing mistakes are not criminal offenses. Counsel was unaware of this, never secured these meetings, and thought they won the case with probation and misdemeanors. WRONG!!! The entire case was handled incorrectly, all to the practitioner’s detriment and license loss.

Attorneys who dabbled in criminal law and do not handle administrative licensing matters, will unknowingly commit malpractice in advising a practitioner to plead guilty to misdemeanor Drug Act violations for probation. In many cases, the Commonwealth cannot prove criminal intent. These cases should not be brought and experienced counsel should fight them. An attorney who is unaware of the automatic license suspension provision of the Drug Act should not represent any licensed practitioner. Unfortunately this case is another example of why competent and capable counsel is necessary to handle both criminal and civil legal matters for licensed practitioners who become entangled in the criminal process. Please call or email to discuss your case.

Pennsylvania PHMP/PMP Initial Contact Letter and Evaluation Process

Sections 22 and 41(5) of the Medical Practice Act, 63 P.S. §§ 422.22 and 422.41, authorize the Pa State Board of Medicine to refuse to issue a license based upon competent factual or legal basis upon which the State Board of Medicine may conclude that licensee “fails to demonstrate the qualifications or standards for a license” or that he/she is “unable to practice the profession with a reasonable skill and safety to patients.”  

This first blog of 2014 will focus on the issues presented for all PA professional licensees who 1) reject or choose to undergo a PHMP/PMP evaluation, 2) are assessed by a non-expert to be in need of a monitoring, and 3) chose to not enroll in the PHMP/PMP. From this point forward, the matter will be referred to the State Board prosecutor for potential disciplinary action.

Initially, the Board becomes aware of a possible impairment.  Every licensee should question the nature and means with which the PHMP/PMP became aware of your supposed impairment.  Your truthful answer regarding any criminal charge on the initial or renewal license application is one way.  Others ways include anonymous reports or police or work place referrals.  

Once the Board becomes aware, its first step is the initial “letter of concern” and the PHMP/PMP referral, with accompanying questionnaire and medical authorization forms.  Included in this letter is almost a demand that you contact the PHMP.  However, you are not obligated to answer the questionnaire or sign medical authorization documents.  Absent a Board order compelling participation in the PHMP, rejecting the PHMP is a valid decision because of the consequences of PHMP/PMP enrollment.  

I advise all clients to not answer the initial questionnaire and refuse the PHMP/PMP because any PHMP participation requires a licensee to admit at a minimum of having a drug or alcohol addiction and being an impaired professional.   This label sticks with you for the rest of your professional life and is reason alone to reject the PHMP.  Review my other blogs for the affect of this admission on a licensee and how the Board uses the admission of impairment to easily strip aware a license after participating in the PHMP/PMP.

DO NOT ENTER INTO THE PHMP/PMP CONTRACT WITHOUT FIRST TALKING WITH ME.

If one does answer the questionnaire, the first step in the PHMP process is the interview by the “assessor”.  In almost all circumstances the assessor, seeking a patient, will find an impairment and the need for monitoring.  This person is not an expert and the impairment finding is not a valid medical opinion.  You have yet to meet with the Board hired expert.  These are two valid legal reasons to reject the assessor’s determination of a “suggested impairment requiring monitoring.”

It is my opinion that any Board action (conditional denial of a license or suspension of a license) based upon an assessor’s opinion rests upon an incompetent expert and/or an unrecognized quasi-medical opinion.  The director of the PHMP does not evaluate you.  Rather, the “assessor” or social worker does and they are not licensed experts in any field recognized in any court of competent jurisdiction.  The conclusion or opinion that a licensee is suffering from “a suggested impairment requiring monitoring” is not a medical opinion rendered to any reasonable degree of certainty of any recognized scientific field of study recognized by any competent court in this Commonwealth.

Consequently, it is my opinion that the Board violates federal and state substantive due process rights by relying upon a lay person/non-expert’s unrecognized, unscientific opinion as competent evidence to either discipline an active licensee or provisionally deny the qualified applicant. Absent this assessor’s brief interview with you, there is no way for the Board  to conclude that you “failed to demonstrate the qualifications or standards for a license” or that you are “unable to practice the profession with a reasonable skill and safety to patients.”  Lesson here is DO NOT ANSWER THE QUESTIONNAIRE AND DO NOT PARTICIPATE IN THE PHMP/PMP.

I also feel that the assessor’s opinion referenced and relied upon by the PHMP Director and the Board is a net opinion lacking a factual or medical basis. The conclusion, not even a real medical opinion, is rendered after one meeting.  The opinions therein are also issued by a person or entity possessing a financial interest in the evaluation.  The “suggestion of impairment” necessarily includes a recommendation of treatment by the individual issuing the recommendation.  Thus, the recommendation is based upon a financial motive, is biased, and not competent evidence upon which the Board may rely to provisionally discipline or deny an otherwise duly qualified applicant.  

Because the Board’s factual and legal decision of discipline or license rejection is predicated upon errors of law, violates constitutional rights, and is unsupported by substantial evidence (such relevant evidence as a reasonable person would accept as adequate to support a conclusion), I appeal every Board action based upon an assessor’s opinion.   

Please call me to discuss your case before you sign any PHMP/PMP CONTRACT OR ADMIT TO ANY IMPAIRMENT.  Next blog will talk about the terms of the PHMP contract.

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