The New Drug Testing Environment of Pennsylvania’s Health Care Professionals

On March 12, 2014 the New York Times published an op-ed Why Aren’t Doctors Drug Tested? The opinion piece spells out numerous national cases of drug addicted doctors and nurses engaging in extensive 1) addiction-related malpractice, 2) patient assisted suicide, 3) personal drug overdose, and 4) drug tampering (stealing patient’s medications and shooting up with the same needle and then infecting the patient with their HIV or hepatitis C) resulting in serial transference of infectious diseases. The article set forth extensive documentation of medical professionals theft of hospital medications creating a drug addiction epidemic which in turn resulted in serious patient safety risks and deaths.

Accordingly to many Pennsylvania Department of State licensing board investigators with whom I and clients meet, this is the current professional climate in which Pennsylvania’s healthcare professionals and patients reside and work. Since the investigation of Herbert Gosnell, M.D. (the Philadelphia gynecologist/abortion doctor charged with murdering babies) broke into the open, Pennsylvania’s professional licensing board investigators have been very busy.  After Gosnell, the professional board investigation departments initiated a new professional enforcement regimen.

On the drug use facet of these investigative bodies, every single positive drug test of any licensed professional mandates a state investigation. Employers, employment agencies, pre-employment screening agencies, and hospitals must report  to a professional board the professional’s positive drug test. The regulatory reporting requirement applies to any drug test secured for any reason. Medical based drug testers are required to give the professional patient the opportunity to self-report within 30 days or the hospital must report.

In sum, any manner within which a state investigator finds out that a professional’s body fluids contain non-prescribed and/or illegal scheduled narcotics, an investigation will be commenced.   Unfortunately the first step in these investigations is statements taken, admissions potentially sought, or additional drug tests secured. This is either at the employer level or through the state investigator. Thereafter, contact with a  PHMP, PMP, or PNAP caseworker who will seek acknowledgment of drug impairment or addiction and voluntary admission into an inpatient treatment facility.  Second evaluations are sought, which routinely find some type of substance abuse disorder regardless of whether future positive drug test exist. This is all a trap. Please read my other blogs on these tactics.

Looking back at the New York Times article and other local newsworthy criminal/malpractice cases, state investigators of the nursing boards are now pressing these cases with extreme urgency, diligence, and persistence. They want admissions and stipulations of addiction and impairment where none exist and scare and threaten every hard working professional with their license. Please call me to discuss any contact with your employer, substance-abuse social workers, PNAP or PMP monitoring programs, or state criminal investigators.


The VRP and its Consequences

A standardized contract with a three-year term similar to requirements outlined by PHMP Board ordered Consent Agreements is utilized. Random Observed Body Screens are used to determine abstinence is being maintained. (We may require urine, serum, blood, saliva, perspiration or hair testing in fulfillment of this requirement.) 

(This Quote is taken from a Pa Licenseing Board website discussing the VRP administered by the PHMP)

In preparation for today’s blog I searched the Internet for comments and questions about Pennsylvania’s various licensing boards’ voluntary recovery programs (“VRP”) and the manner in which they entice professionals with drug or alcohol use issues to enroll in their programs. I found numerous professionals concerned about the arduous process, high cost, and undisclosed lengths of time as a professional they were kept from working. Complaints centered on expensive mandatory in-patient treatment or weekly drug testing protocols, work place monitoring agreements, and an inability to even interview for a job unless approved by capricious and degrading case workers. Each comment concluded with the professional wishing they consulted an attorney prior to enrolling in the program.

The nature and manner VRP case workers “trick” professionals with no criminal record or an ARD to enroll in the program is very creative. Sometimes, the standard letter stating with “It has come to our attention you may be suffering from an impairment” is mailed. Other times threatening and provocative telephone calls unilaterally scheduling appointments occur. Or, the best, case workers demand provisionally licensees show up in Harrisburg to sign unknown documents that can’t be mail. Under each of these circumstances the licensee is scared, possibly losing their job, and not advised of the full scope and breadth of the VRP agreement into which they are almost forced to enter.  They are given ultimatums on times to respond and returned signed documents with no explanation of the long term implications of the legal stipulations they are acknowledging.

The legal problem is licensees do not understand the terms and conditions of the VRP agreement and the legal footing upon which the agreement is based. Sections 63 P. S. 224(a)(2) and (b)(4) allow the Board to refuse, suspend or revoke a license if the licensee “is unable to practice professional nursing with reasonable skill and safety to patients by reason of … physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination, so long as such dependence shall continue.” As part of submitting to treatment, the Board is given the authority under Section 14.1(c) of the Law, 63 P.S. § 224.1(c), to require a licensee as a condition of being allowed to continue to practice to enter a VRP Agreement or face public disciplinary proceedings for his or her impairment.

The significance of these provisions, when read together, is the terms of the statutorily mandated VRP agreement. Every VRP agreement requires the licensing to stipulate among many things that:
1) The Board is authorized to suspend, revoke or otherwise restrict the license under 63 P.S. § 224(a)(2);
2) The licensee is unable to practice the profession with reasonable skill and safety to patients by reason of illness, addiction to drugs or alcohol, or mental impairment;
3) The disciplinary action is deferred and may ultimately be dismissed pursuant to the impaired professional section of the Law, 63 P.S. § 224.1, provided the licensee progresses satisfactorily in an approved treatment and monitoring program and complies with the terms and conditions of the VRP Agreement .

It doesn’t matter what time or how long after you enter into the VRP program that you object to the terms of the VRP or decide to not perform in accordance with the Agreement. Once the licensee violates the agreement, the Board moves to suspend or revoke the license. The basis for this is simple: The licensee when they entered the VRP stipulated that they are unable to practice due to an impairment, which inability may only be concluded to be over by the VRP case worker. As such, the licensee has given up their entire defense that they are not impaired or a safety risk. Case law says that any expert testimony that the licensee post VRP enrollment is “cured” or not a danger to the community and can practice safely will be found to be not credible.
In cases involving a single DUI or a single positive drug test of any scheduled narcotic for which there is no medicinal basis, entry into the VRP is an acknowledgment that the licensee has a drug addiction or problem.  It is this drug or alcohol problem that must be candidly acknowledged, treated, and for which inpatient and outpatient treatment with drug testing will be required. All costs will be born by the licensee.

If the VRP comes knocking two years after the alleged DUI, which occurred after a family marital event, lets say, and you really have no drug or alcohol issue but the VRP is chosen rather than face “possible” public disciplinary action, the licensee has now stipulated to having a drug addiction for which they are unable to practice safely. Having agreed to this, every VRP licensee is thereafter unable to seek employment, continue their employment, or be hired by a job without the VRP notifying the employer. As well each employer could be required to approve a workplace monitor of the licensee who will report to the VRP case worker. This employment will also be delayed after SATISFACTORILY COMPLETING 30, 60 or 90 days inpatient treatment, which cost will be born by the licensee.

The issues become, why should the VRP be chosen, by whom, and under what circumstances?  If some of the facts discussed above are familiar to you and your case, call me to discuss your options and the agreement being presented to you.  Please understand the legal consequences of entering into the VRP.

Increased LIcense Enforcement –Work Place Erros and Drug Diversion Issues

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

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

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

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

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

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

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

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

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