Riding the Bridges of South Jersey And Valley Forge

My administrative law blog followers are eagerly awaiting a new blog. The summer months have been slow with regard to new legal decisions or laws and/or regulations that substantially change my practice.

The various health related professional board’s summer meetings have kept me very busy.  After a licensing board meeting, clients’ matters that are on the agendas – accepting the decision of a hearing officer, approving an consent agreement, or ordering a Mental and Physical Evaluation – generate a lot of work.

Great weather affords me the opportunity to ride my bike a little bit more.  Averaging 125 miles a week takes me across many bridges, rivers, and bike trails, while traversing local county roads. My escapade to the Lancaster County Courthouse via West Chester and the Brandywine Valley was well documented.

Down the Shore, calm winds and little rain allows me to ride throughout the Garden State Parkway’s mainland beach communities. Leaving Margate, Atlantic County, I ride through Somers Point, along the Great Egg Harbor River up to Mays Landing. Turning left on Route 50 (The Pine Barrens Byway), I have had the pleasure of being joined or joining other riders into Cape May County.  We ride to Marmora, or across to Milmay, Estell Manor,  Tuckahoe, Corbin City, Ocean City, and back through Longport New Jersey.

The pictures reveal the geographic flatness of these rides. The hills are man-made and provide a reasonable perch through which one can take in mother nature’s wonders. The artificial elevations are gentle, well paved, and are really fun way to end the ride.

The South Jersey Pine Lands provide a wonderful misty fog, with a crispy pine flavor, in the early morning cool air. This differs from the Schuylkill River Trail, the new pedestrian bridge at Route 422, and riding through Valley Forge Park at sunrise.  It’s a hard choice as to which is a better ride; 50 to 60 miles of flats in just over two hours, or 25 miles of hills and the history of the Valley Forge and Brandywine valley in the same amount of time.

The one constant in all of these rides are the bridges. Large or small, tall or short, long or brief, they allow walkers and riders to go from one place to another without which the rides could not take place. It’s just great to be out there, getting energized and ready for each day.
 Call me to discuss you licensing matter.

Northampton County’s 1861 Court Room!!

Finding the diamond in the rough. That describes my recent drive to the Northampton County Courthouse. As my law practice takes me from the Philadelphia’s suburban counties to northeastern Pennsylvania, I routinely travel on the Pennsylvania Turnpike and its Northeast extension.
The drive this July week was rough. The weather forecast proved accurate; rain and fog through the Lehigh Valley. It was raining so hard, I missed my exit off Rt 476E at Rt 22 E. I drove an additional 20 miles each direction, turning around in Jim Thorpe. (I love the Carbon County Courthouse – see my other blogs – but I was not going there today.)
 I was uncharacteristically late, arriving at 9:25 am for a 9:00 am hearing.  I was otherwise safe.  The judge was extremely gracious and polite. The case was handled quickly.  Opposing counsel – a local assistant district attorney – offered a tour of the courthouse as I expressed my appreciation for our hearing taking place in the old courthouse, courtroom 3, as compared to the new 2004 building.
The county website states, “The original court house was built in  1764. Nearly a century later and after the courthouse had experienced a number of historical events, which included being used as a barracks by Revolutionary troops, a group of citizens petitioned for a new County Courthouse at a different location. On August 23, 1860, the County Commissioners decided to accept land offered at a price of $1.00 that was located several blocks west of the original facility.   A new brick structure was later built on a steep hill at a cost of $53,000. The first term of court was held in the new facility on June 18, 1861.  Since then, two additional wings were constructed to accommodate the growth of Northampton County and satisfy the judicial needs of the expanded population.  The second part of the courthouse was built in 1978 and the third in 2004. “
I was interested in the 1861 building and court room 1.  Finished at the out set of the Civil War.   Wow!! A majestic legal theater, refurbished in 1978 to match the import to the community when the courthouse was built. Original woodwork, plaster, and paint are renewed. County Commissioners rightfully chose to not clutter the court room with of a phalanx of computer cables, microphones, and other modern day accoutrements that clutter some other county courtrooms in which I practice.
The pictures below reveal the courtroom’s grand entrance, judicial bench, and the jury box of the times. The remarkable woodwork and attention to detail immediately reveals itself. The artisans of Pennsylvania’s counties knew their work would be on display at every important and public event of the times. The honor and respect they earned working for their local government on the most important building in the county.

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.

Road Riding in the Counties

My personal and business travel is taking me to more counties throughout the Commonwealth of Pennsylvania than ever before. The local courthouse houses in the county seats are really interesting for me. The court houses — arenas of legal combat — are throw backs to more glorious days when the local big trial was the event of the year.
In the past I took for granted these architectural gems that are spread throughout the various townships and boroughs within which I practice.   Now, I seek out and explore the courthouses. Whether by car or bike, I am having fun.
This spring I bought myself a road bike. I ride ferociously around the eastern part of Pennsylvania. I have the pleasure of routinely riding through Philadelphia,  Conshohocken, Norristown, and Valley Forge Park. All are within 5-15 miles of my house.  Sometimes I ride from my house to Philadelphia and back.
A recent Saturday took me on a further ride — from West Chester to the City of Lancaster. The road ride began in West Chester and ended in Lancaster County, behind the Court House. We departed West Chester through its southern rolling-hills of Brandywine Township. We followed Brandywine Creek through East Bradford Township, Downingtown  to West Fallowfield Township. One word — marvelous.
After 90 minutes the group ride, with me at the back of the pack, entered Lancaster County. I was greeted by signs for farm fresh brown eggs, personally constructed homes, garages, sheds, and wonderful antique tractors.
Tractors, tractors, tractors. But not your ordinary tractors.  These were green, yellow and red tractors, pulled by horses. The drawn mowing tractors were hard at work, gas free, mowing lawns and fields. Some tractors were too tired to work, gathering rust. There was no worry about rubber tires rotting. Metal wheels needed no repairs.
The morning aromas changed with each turn in the road. Pungent cow, horse, pig dung awoke my sinuses.  Crushed wild blackberries and dripping vines of honeysuckles permeated homesteads. The morning dew clung to grass blades and tree branches through the Brandywine Creek bike route. Entering Lancaster and riding down Duke Street brought with it fresh bakery smells and the Lancaster County brewing Company.
In each county seat, I look for a small coffee shop. Lancaster’s Prince Street Café did not disappoint. The fresh cappuccino after a 50 mile ride awakened all of my exhausted senses. Orange juice and fresh eggs on a croissant made me even happier. The pictures below reflects the quaintness of the café and the wonderful effort the bakers and barista’s gave the Saturday morning breakfast crowd.
An unexpected joy came as I began to get ready for my drive home. Just to the west of the Prince Street Café is the Lancaster County Donuts Shop. Homemade donuts and holes are sold with every conceivable topping — as if I was in an ice cream shop — tantalized my taste buds. The sublime chocolate with vanilla cream cheese frosting carried me through the rest of my day.
I could not have been happier. Content and satisfied by a hard work out, great ride with new friends and a bulging stomach.  Blair and Clearfield counties also did not disappoint. I’ll keep you posted.

A Fringe Benefit of Practicing Law in the Commonwealth of Pennsylvania

There are many benefits to being a licensed, practicing lawyer in this country and Commonwealth.  One fringe benefit (and I mean fringe) of practicing law in the Commonwealth of Pennsylvania is driving through and to the counties in this jurisdiction.  Practicing in Delaware, Chester, York, Lebanon, Dauphin, Luzerne, Montgomery, Lackawanna, Berks, Bucks, Carbon, Lancaster, Northampton, Monroe, Clearfield, Blair, Center counties, I drive throughout the Commonwealth.  The word Commonwealth does not do justice to the beauty of the counties in which I travel and the courthouse in which I practice.

Monroe County Court House Square

 

One recent cool, spring day I had the pleasure of a relaxing drive from my home in the suburbs of Philadelphia to the Monroe County Courthouse in the quaint hamlet of Strousburg, Pa.  I left my home at 7:00 am.  By 7:45 I entered the Lehigh Valley and was approaching the scenic Delaware River Water Gap area.  I left Philadelphia in a heavy fog, arriving in the Lehigh Valley as the fog began dissipating from the  mountain valleys.   Steamy slopes and long shadows were cast as the sun climbed over the hills and heated the morning sky.  Route 78’s mountain passes were freed from their foggy blanket revealing the height of the tree-topped slops.  What a peaceful ride.  The rich majesty of Penn’s Woods (the translation of the word Pennsylvania) became evident.

The coffee shop on the square at the Monroe County Court House, Strousburg, Pa

Home made scones, croissants, and danish.

Upon arriving in Monroe county and the courthouse square, I had the pleasure of stopping for coffee at the café duet. Pictured above, I partook in a croissant and perfect cappuccino in the a sun-lit square.  I could have been in any hamlet or borough in another country.  I, however had the pleasure of attending to my profession, take care of a valued client, and being given the opportunity to enjoy Monroe County.

In between mentally organizing my case, I day dreamed about the incredible mountain bike riding trails that snaked through the various gorges, streams, and mountain passes. Exercising both my mind and body is a wonderful activity I engage in on a daily basis.  I will be in Center, Blair, and Clearfield counties over the next several weeks.  I will cherish my time and my profession while I enjoy the best the Commonwealth has to offer this summer.

Call me about your legal matter.

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.

Proposed Pennsylvania Law for All Licensee’s Criminal Charge Reporting Responsibilities

In February several Pennsylvania state senators introduced Senate Bill number 354 of 2017. This bill drastically changes licensees reporting responsibilities once they are charged with a crime. Currently, most licensees (Except nurses) must report a criminal charge only upon conviction. Senate Bill 354 as currently written specifically states:

Section 2.1.  Reporting of sanctions and criminal proceedings.

(a)  Duty.–An individual who holds a license, certificate or registration issued by the Bureau of Professional and Occupational Affairs shall, as a condition of licensure, certification or registration, do all of the following:

(1)  Report to the appropriate licensing board or licensing commission a disciplinary action taken against the licensee, certificate holder or registrant by a licensing agency of another jurisdiction.

(2)  Report to the appropriate licensing board or licensing commission an arrest, indictment or conviction of the licensee, certificate holder or registrant.

(b)  Time.–A report under subsection (a) shall be made as follows:

(1)  Within 30 days of the imposition of the sanction described under subsection (a)(1).

(2)  Except as set forth in paragraph (3), within 30 days of the earlier of:

(i)  an arrest under subsection (a)(2); or

(ii)  an indictment under subsection (a)(2).; or

(iii)  a conviction under subsection (a)(2).

(3)  In the case of a criminal action under subsection (a)(2) that is initiated prior to the effective date of this paragraph, within 30 days from the later of:

(i)  the date of conviction; or

(ii)  the effective date of this paragraph.

If a licensee does not report a new arrest within 30 days, the licensee is subject to additional disciplinary action.

All Pennsylvania licensees may soon become subject to disciplinary action as a result of accused, not convicted, criminal conduct.  This is a much different from the current scenario of disciplinary action upon conviction. The remaining subsection identified below is consistent with current procedural due process rights to a licensee whose license is subject to an immediate clear and present danger emergent suspension.

(a)  Temporary suspension.–A licensing board or licensing commission may temporarily suspend a license, certificate or registration under circumstances as determined by the board or commission to be an immediate and clear danger to the public health and safety. The board or commission shall issue an order to that effect without a hearing, but upon due notice, to the licensee or, certificate holder or registrant concerned at his last known address, which shall include a written statement of all allegations against the licensee or, certificate holder or registrant. After issuing the order, the board or commission shall commence formal action to suspend, revoke or restrict the license or, certificate or registration of the person concerned as otherwise provided for by law. All actions shall be taken promptly and without delay.

(b)  Hearing.–Within 30 days following the issuance of an order temporarily suspending a license, certificate or registration, the licensing board or licensing commission shall conduct or cause to be conducted a preliminary hearing to determine whether there is a prima facie case supporting the suspension. The licensee or, certificate holder or registrant whose license or, certificate or registration has been temporarily suspended may be present at the preliminary hearing and may be represented by counsel, cross-examine witnesses, inspect physical evidence, call witnesses, offer evidence and testimony and make a record of the proceedings. If it is determined that there is not a prima facie case, the suspended license, certificate or registration shall be immediately restored. The temporary suspension shall remain in effect until vacated by the board or commission, but in no event longer than 180 days.

(c)  Automatic suspension.–A license or, certificate or registration issued by a licensing board or licensing commission shall automatically be suspended upon:

(1)  the legal commitment to an institution of a licensee or, certificate holder or registrant because of mental incompetency for any cause upon filing with the board or commission a certified copy of the commitment; or

(2)  conviction of a felony under the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or conviction of an offense under the laws of another jurisdiction which, if committed in this Commonwealth, would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act.

(d)  Stay.–Automatic suspension under subsection (c) shall not be stayed pending an appeal of a conviction.

(e)  Restoration.–Restoration of a license or, certificate or registration shall be made as provided by law in the case of revocation or suspension of the license or, certificate or registration.

New to the licensing and regulatory scheme for every licensee is the ability of a licensing board to automatically suspend a license if the licensee is committed to a mental health facility for any reason or a conviction under the Drug Act. Restoration of the licensees license suspended under Senate Bill 354 shall be consistent with any other procedural due process rights.
Please call me to discuss your case

Another Really Nice Client Review with my Response

Here is another really nice and very accurate client review and my response. I can write blogs about this stuff. But, client testimonial about how aggressive and direct my representation is becomes the best blog.

I received a “letter of concern” from Pa nursing board after a charge of public intoxication.I unwittingly responded to the Board before contacting Richard.What a mistake!!!!The Board is not your ally-quite the opposite.Their job is to destroy you both financially and mentally.
Fortunately,Richard was able to expertly win our court case.Unfortunately,unbeknownst to me,I had been suffering from Bipolar disorder all the while,and the relentless emotional stresses caused by the Board caused me to suffer deep depression and a resulting manic swing where I had 2 DUI’s in a span of less than 2 weeks. Richard was right there for me and had my charges lessened significantly.Despite that,the Board required that I participate in their onerous,soul and money sucking program.I chose to voluntarily suspend my RN license rather than go through with that.I would not be able to work in my specialty during the 3+ years in the program,be out of thousands of dollars,and may not be employable when all is said and done.32 years as a nurse is enough for my lifetime anyway.
Richard Hark is an expert in protecting licenses of health care professionals and will work tirelessly to win your case.He is also very understanding and helpful with your anxieties at such a stressful and unsure time.I recommend him 100%.

Richard Quinton Hark’s response: “Thank you. I am so happy to help. I aggressively support every client’s need to take their medication without VRP and PHMP interjection in you, the professional’s, course of medical care and treatment. The one size fits all, regulatory approach does not work for everyone. We live in the best time of medical care and lawful prescription medication management of many medical conditions. Do not be ashamed or scared of your medical care as it pertains to your license. Anxiety, depression, ADHD are commonly diagnosed medical conditions for which properly administered and dosed medication management is no one’s business but the patient. Do not tell your job, your manager, the D.O.N., or any police officer in a DUI investigation. Do not respond to any letter of concern or sign medical authorizations releasing your medical care and treatment history to a social worker. Call me. This client and the others who have reviewed me attest to my aggressive defense of you, your privacy, and your license. I couldn’t be happier for this client who trusted my professional experience to help them, and won!!!!!!!”

A Really Nice Client Review

“I was caught completely off guard this past fall when after attending a concert with some friends I received a DUI. It was the first driving offense I had received in 40 years and I felt very bad about it happening. What I did not expect however, was that within 48 hrs, I received notice from the State Board of Nursing, that I needed to sign some documents stating that I would enter into a program that they run for alcoholics and if I didn’t sign, I would lose any chance of saving my nursing license in the future if I was found guilty. I have no words for how devastated I felt. I have been in nursing for 38 yrs without so much as a verbal correction. I had no idea, that the DUI would result in the loss of my professional license. I was completely terrified. So, knowing that I was not guilty of being an alcoholic and have no history whatsoever of any type of substance abuse at home or work, I signed the papers, thinking they would support me. Well, it was quite the opposite. They way their system is set up, once you sign the papers, they say that you are guilty. Thank God, I have a good friend, who knew me well, and began researching this process since it didn’t make sense to her. She found Richard Hark and told me that I needed to see him immediately. I hope that if you have found your way to this page through your own research, you will go to talk to him. He took extremely good care of me and my case was closed. I was wrong to get a DUI, but to lose my nursing license was not fair. I am getting ready to retire in a few months and I asked my supervisor if I could give an inservice to the other nurses, explaining to them, the unfair practices that are out there. Best to anyone who reads this.”

 

Please call me if you feel like this.

Professional License Indefinite Suspensions for Missing the Mental and Physical Evaluation

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

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

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

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

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