Disclosing a Criminal Conviction on a Licensure Application — Part 2

In my last blog I wrote about real estate applicant who failed to disclose on his Real Estate Commission application a criminal conviction. Upon discovery the Commission revoked his license and the Commonwealth Court approved of the action. Today’s blog involves the exact opposite result for one of my physician clients.

On October 14, 2014 Dr. Christopher Elder, a Texas licensed physician, submitted an application to Pennsylvania’s Medical Board for a license to practice medicine and surgery. Unlike Hawes, Elder disclosed a 2010 federal conviction for aiding in abetting and conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. On April 2, 2015 the Pennsylvania Medical Board provisionally denied Elder’s application. The Board maintained the Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), authorized licensure denial because of Elder’s felony conviction. The Board also denied licensure, maintaining Elder lacked good moral character and did not possess the requisite training and experience.

Elder appealed the conditional denial of licensure. At the hearing before a the Hearing Officer Elder presented his credentials, training and experience, the facts of the criminal case, and character evidence. Consistent with prior Pennsylvania Supreme Court precedent, Elder maintained the criminal conviction was too remote for the Board to determine such affected his current ability to do his job lawfully. Elder’s mitigating evidence established his minor role in the criminal case and his rehabilitation since release from prison.

The Hearing Officer weighed Elder’s witness’ credibility and Elder’s mitigating evidence. He ruled in Elder’s favor, stating that while Elder’s criminal conduct demonstrated moral turpitude at the time of its commission, Elder presented persuasive evidence of his rehabilitation and present moral fitness to practice medicine. A period of probation was required to allow Elder the ability to secure appropriate supplemental educational classes for competency.

The Medical Board rejected the Hearing Officer’s proposed adjudication. The Board determined Elder’s explanation of his crime displayed a lack of remorse and acceptance of responsibility, that Elder still lacked the moral turpitude to be a doctor in Pennsylvania, and lacked the educational qualifications. Elder appealed, maintaining the Board’s decision was arbitrary and capricious in light of the competent, uncontested character evidence and age of the criminal act.

Commonwealth Court agreed with Elder. For the second time in as many months, the Court took a Pennsylvania licensing board out to the wood shed and gave it a stern whipping. The Court emphasized that Boards must look at the age of the crime as it related to current fitness. Remote, past dereliction, must be considered where an agency seeks to revoke a professional license on the basis of a criminal conviction. Secretary of Revenue v. John’s Vending Corporation, 453 Pa. 488, 309 A.2d 358 (1973).

The Court explained that “where the prior convictions do not in anyway reflect upon the [applicant’s] present ability to properly discharge the responsibilities required by the position, we hold that the convictions cannot provide a basis for the revocation of a … license.”

For Elder I determined he must present a clear explanation of the criminal enterprise accompanied by extensive mitigating evidence. The Board was dismissive of Elder’s mitigating evidence, stating that “[r]ather than to take responsibility and express remorse for his criminal misconduct during his testimony, [Elder] attempted to minimize his role.” Elder responded that such did not minimize his criminal conduct but explained his role in the underlying conspiracy, which the Board misconstrued as a collateral attack on his conviction. Elder directs the Court to Nguyen v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 53 A.3d 100 (Pa. Cmwlth. 2012).

The Commonwealth Court reviewed the entire record, the Federal Court sentencing transcript, the 8th Circuit Court of Appeals decision, and each witness’ testimony of Elder’s character and rehabilitation. The Court emphatically states:

The record does not support the Board’s assertion that Elder failed to express remorse or to take responsibility for his criminal conduct. At the hearing, Elder stated that he was “really” and “deeply” remorseful and he “absolutely accept[s]” responsibility.” He presented witnesses to attest to his remorse. The Board did not explain how this testimony was inadequate or what else Elder could have said. Elder’s attempt to place his criminal conduct into context and explain his role in the conspiracy does not demonstrate a lack of remorse or rehabilitation, as the Board presumed. The Board simply made a subjective determination that was contrary to that of the Hearing Examiner, who directly observed Elder and his witnesses, and accepted his evidence on remorse.

We hold that the Board erred and abused its discretion in reaching the conclusion that Elder does not have the present moral character required for a license. Elder’s crimes were committed over 14 years ago and were isolated to a single episode in his life. He has served his sentence. The Board erred by categorizing Elder’s evidence as not accepting responsibility when he was simply explaining his role in the conspiracy. The Board’s conclusion on Elder’s moral character cannot be reconciled with John’s Vending, 453 Pa. 488, 309 A.2d 358, or Nguyen, 53 A.3d 100. It did not take into account its own findings that Elder’s conduct since 2004 has been not only free of criminal conduct but dedicated to significant volunteer and public service activities.

In reversing the Board and instructing it to grant licensure, the Commonwealth Court determined the Medical Board sanction was a “manifest and flagrant abuse of discretion and purely an arbitrary execution of the agency’s duties or functions.” This is an amazing Commonwealth Court conclusion. Elder disclosed his federal criminal conviction for conspiracy to illegally distribute drugs. Elder set forth his long road to redemption, of rehabilitation, and his true character. The Court, a court of law, not the quasi-legal self-protecting Medical Board, looked at the facts – which mattered — and granted licensure.

Long hard preparation of this case won the day. My methodical approach to making a clear record of personal character recovery, redemption, and rehabilitation, could not be ignored. This cases reveals that proper presentation, preservation of the record, and coordination of witness is paramount to success. Call me to discuss your case.

Immediate Temporary Suspension — Are Temporary for 180 Days Only

Board prosecutors file a petition called an Immediate Temporary Suspension (“ITS”) petition that allows licensing boards to temporarily and immediately suspend licensees’ ability to practice their profession.  These petitions are typically reserved against licensee involved in a Drug Act investigation or sexual assault case.  The ITS suspension lasts, at the most, for 180 days.
The ITS petition must be followed up with a preliminary hearing to address the probable cause alleged in the petition.  A hearing must be scheduled and conducted within 30 days from the date of issuance of the suspension order. These preliminary hearings are limited to evidence on the issue of whether it is more likely than not a licensee engaged in any type of inappropriate criminal behavior supporting a temporary but emergent, suspension. Licensees are entitled to be present at the preliminary hearing, with or without an attorney, cross-examine witnesses, inspect evidence, call witnesses, and offer evidence and testimony.
If the hearing examiner does not find the prosecutor met their burden of proof, the licensee’s license and other authorizations to practice are immediately restored. If the prosecutor met their burden of proof, the temporary suspension remains in effect until vacated, but in no event longer than 180 days, unless otherwise ordered or agreed.
Orders for temporary suspension cases still require prosecutors to commence a separate disciplinary action seeking to suspend, revoke or otherwise restrict a licensee.  This separate action is filed through of a charging document known as an Order to Show Cause (“OSC”). In the OSC, facts are not limited to those alleged in the ITS petition.  The order to show cause is typically filed within the 180 day time, while the immediate temporary suspension is pending.
If a prosecutor does not file any disciplinary action after 180 days, the licensee is able to file a petition for the administrative reinstatement of the license. There is no hearing required and the board shall reinstate the licensee’s license. License reinstatement will issue even if there is a pending disciplinary action.

The post-180 day period is the time after which licenses can get their license back pending disciplinary action. I am currently handling several ITS cases with disciplinary action pending and not pending.  In one case disciplinary action was not filed for over a year. The licensee did not file a petition to reinstate her license and did not engage in the practice of her profession. This was a foolish mistake because absent disciplinary action, her license was subject to reinstatement without restriction after 180 days.  A little bit of research and hiring counsel would have properly notified the licensee of the lack of basis to continue her suspension.

License reinstatement is independent of any criminal prosecution or terms of a criminal sentence. Criminal prosecution can not include in a guilty plea agreement provisions that preclude a licensee from practicing your profession.  Call me to discuss your case.

Immediate Temporary Medical License Suspensions — Do Not Sign Any Agreements Without Counsel

Doctors beware. Government prosecutors are fighting the opiate epidemic on many fronts.  Now more than ever local police in coordination with DEA and  Commonwealth Attorney General drug enforcement investigators are investigating doctors for simply writing unreasonable amounts of scheduled narcotic prescriptions.
DEA Schedule II data base prescription writing reports spawn both federal and state investigations.  Local and federal investigators receive complaints from family members of addicts, alive or dead.  Drug purchasers or drug dealers — “flipped” or “turned” that are now confidential sources seeking to avoid jail — will happily turn on their doctor.
Once a doctor is targeted for pill mill conduct, federal, state, and local police send confidential informants — fake or real patients — to that doctor. Wired fake patients happily record doctor’s physical evaluations, confidential patient conversations, and prescription discussions.
Doctors that breach pain management best practice protocols, for either real or fake patients, are prosecuted.  Red flags include not requiring pre-prescribing drug tests, objective MRI or x-rays if warranted, or  conducting basic physical evaluations.
Treating physicians must check the prescription drug monitoring data base. Pennsylvania’s New Prescription Drug Monitoring Program  Investigators are statutorily authorized to access the PDMP data base to investigate law compliance.   Every prescriber must confirm the patient has neither sought or nor received a similar medication from any other provider.
Failure to check the PDMP database is a red flag.  It is very easy to confirm doctors database access to review patient prescription history.  While the doctor may not ascertain a fake patient from a real one, data base checking give investigators a baseline determination that a targeted doctor is or is not compliant with the law.
Physician evaluation appointments must correspond to an appropriate amount of time spent with each patient.  Physical examinations, chart documentation, and PDMP checks require time.  Charting must document a diagnosed medical condition which warrants a prescription for a therapeutic medical purpose. Multiple prescriptions for multiple, contra-indicated schedule controlled substances are an easy tip off to police investigators of excessive and inappropriate prescription writing. This is part of the criminal prosecution foundation.
Established physician practice red flags are utilized in Medical or Osteopathic Board Immediate Temporary Suspension (ITS) petitions.  These petitions emergently,  immediately, but temporarily suspend a license pending either the criminal prosecution or investigation.  Call me when you get these petitions.  Do not solely rely on criminal legal counsel on how to address these petitions.
My criminal practice experience together with my licensing experience allows me to better represent the physician at this juncture.  Too many physicians get the wrong legal advice on how to deal with these matters with a pending criminal case.  On too many occasions either these probable cause suspension hearings are continued or exchanged for a consent agreement for an immediate indefinite license suspension.  This is wrong.
Do not enter into any consent agreement pending a criminal investigation. The language of some consent agreements require the doctor to make admissions that will have legal consequences in the criminal matter. Further, agreements for an indefinite suspension and automatic probation upon reinstatement ignore much many parts of the criminal matter that may not actually come to fruition. Do not rely on the representations of criminal counsel that does not know how and why the medical board prosecutions proceed the way they do.  Call me to discuss your case.

The PHMP, Kevin Knipe, Pharmacy Board, and an Abuse of Discretion

The PHMP, it’s caseworkers and director Kevin Knipe’s treatment of licensees is a major topic of my blogs and website. I routinely field inquiries regarding false positive drug tests, chain of custody issues, and other PHMP claimed violations. How do I get out of the PHMP is the most consistent PHMP question. Getting out of the PHMP
Kevin Knipe rules his PHMP fiefdom and its workers.  He gives them a script to follow, instructs no compassion is allowed, and they do not possess authority to vary from his rule of law.  In this era of medical marijuana and opiate addiction Pennsylvania’s health care licensing boards adopted his tough stance to licensees in the PHMP.  The Boards deferred much, if not all, of their discretion to his authority.  That is wrong.  The Commonwealth Court decision in my case, Kenney v. BPOA – Pharmacy Board, tells the Boards to take back their authority!
I am fortunate to represent Mr. Kenney, a pharmacist who is 100% compliant with all PHMP terms and conditions.  He timely sought proper termination of his PHMP probation and end Knipe’s and Kathy Simpson’s incessant limitations on his license. PHMP case worker Simpson agreed initially to let him out of the program.  Kevin Knipe got wind of this position the day before a hearing and overruled her. The Pharmacy Board acquiesced to Knipe’s dictates and denied Kenney’s petition.
I was hired to seek reconsideration of this denial before the Pharmacy Board and then appeal to Commonwealth Court if reconsideration was rejected.  It was.  On appeal my strategy was to argue the Pharmacy Board ignored the factual record, thereby abusing its discretion. My blogs talk about this issue.
Kenney is at least six years sober and compliant with every PHMP condition. On appeal, the Board and Knipe maintained Kenney did not use the proper form seeking early termination.  Knipe testified before the Pharmacy Board that he was worried about other petitions to terminate that would be filed if the Pharmacy Board approved Kenney’s Petition.  The Pharmacy Board agreed!
The Commonwealth court found this position outrageous.  It took Knipe, the PHMP, and the Pharmacy Board out to the “legal” woodshed and gave them a whipping. The Court quotes Knipe’s concern that early termination of PHMP monitoring will not be well received in the court of public opinion and could expose the PHMP to liability. The court rejected this reasoning, summarily stating, “The Board erred in relying on Knipe’s testimony because it was a based upon the PHMP’s inflexible policy, not the licensee’s record, and a mischaracterization of testimony.”  PHMP’s inflexible policy not based upon the licensee’s record.!!!
The court turned its ire to the Pharmacy Board’s acceptance of Knipe’s claims that PHMP consent agreements barred licensees from petitioning for early termination. The Court ruled the PHMP Consent Agreement/Orders are contracts; that Knipe and PHMP’s interpretation that they controlled termination approval rendered the contract illusory (illegal).
In evaluating the contract, the court rules as a matter of law that the period of probation may be extended or modified – – reduced – – and that the Pharmacy Board, not Knipe or the PHMP, controls modification. The rules as a matter of law the PHMP does not control the decision on early termination of probation petitions. “It is inappropriate for the Pharmacy  and all other Board which utilize the same consent agreements, to delegate its final decision making responsibilities to the PHMP.”
This is the decision’s important holding. The licensing board, not the PHMP, interprets the consent agreements into which it enters. The PHMP may manage the probationers.  It does not have a statutory authority to run rough shot over these licensees.
The Court rejects PHMP’s claim of God, sobriety, and public and patient safety override licensee’s constitutional and statutory property rights.  The Court tells licensing boards to take back their statutory authority; to allow its prosecutors, not the PHMP or Knipe, to modify consent agreement terms. PHMP’s one size fits all uniform enforcement practice against every PHMP monitored licensee is wrong.
Whether a nurse, physician, pharmacist, respiratory therapist, physician assistant, the PHMP, SARPH, PNAP, PHP has ruled professionals’ lives with an iron fist.  PHMP claimed it had the legal authority based upon the consent agreement. This decision says that the licensing boards have improperly abrogated their authority to the PHMP.
Let me help you file your petition to terminate the PHMP program and tell your licensing board that Kevin Knipe and his minions no longer control your life.

Pennsylvania’s Professional License Disciplinary Environment

The Professional Compliance Office within BPOA’s Legal Office, receives an average of 16,000 complaints per year. The office reviews these complaints to establish whether the complaint alleges conduct which is a violation of a practice act, whether a Board has jurisdiction, and whether there is sufficient evidence to merit further investigation. Complaints can be initiated by consumers, licensees, board or commission members, board or commission staff, competitor complaints, other state licensing boards, media information, and law enforcement.

When a complaint requires investigation, the Department’s Bureau of Enforcement and Investigation (BEI) interviews witnesses and obtains documents and collects evidence related to the allegation made in the complaint. Subsequently, a prosecuting attorney determines whether to close the complaint or to initiate a disciplinary action before the administrative licensing board.

Prosecution for violations of standards of practice are initiated through the filing of an Order to Show Cause.  The prosecutor who proceeds with the disciplinary action then bears the burden of proving misconduct before the board. Licensees are provided due process and the board adjudicates the case to either dismiss or sanction. Depending on the severity of the conduct proven, sanctions can range from probation and discretionary suspension, to revocation or automatic suspension as required by statute. Licensees have the right to appeal any sanctions to the Commonwealth Court for review.

Sanctions include: revocations, suspensions, stayed suspensions, voluntary surrenders, probations, reprimands, civil penalties. As of May 16, 2018, there had been 2,494 sanctions issued in fiscal year 2017-2018. This is the highest on record.  Nursing Board sanctions doubled between 2012 and 2018, from 436 to 840. Nursing Board actions account for 31% of all disciplinary cases.   Medical and Osteopathic Board sanctions remained the same at 190 and doubled from 27 to 46, respectively.  Pharmacy and Social Workers Board actions have both dropped by 50%.

Each board and commission is authorized to take disciplinary action based on the commission of a crime. Among these disciplinary actions taken:

• 29 % resulted in suspension;

• 17% resulted in stayed suspension (usually with probationary terms);

 

• 13.5% resulted in automatic suspension due to the Drug Act;

• 12.6% resulted in voluntary surrender of license;

• 12% resulted in revocation;

• 6.5% resulted in reprimands;

• 4.7% resulted in immediate temporary suspensions based on danger to health/safety of public;

• The remaining roughly 5% resulted in probation, a civil penalty (regular or Act 48), a stayed revocation, or other sanction such as remedial education, etc.

Call me to discuss your case.

A Constitutional Right to Work

On October 4, 2018 Commonwealth Court issued a significant decision in King v. BPOA discussing the Criminal History Record Information Act (“CHRIA”).This statute gives licensing boards a discretionary authority to discipline, suspend, revoke, grant, or deny licensure based upon a criminal conviction related to the practice of a license. CHRIA’s general purpose, however, is to control the collection, maintenance, dissemination or receive a criminal history record information.

Recently,licensing boards use CHRIA to discipline licensees for criminal conduct NOT related to the practice of license. King reiterates CHRIA does not provide standards for Boards to exercise their discretion. Boards must look at their specific and more relevant enabling statutes, the specific board licensing laws. CHRIA does not authorize discipline for a criminal convictions not related to the practice of the profession.

This is why in CHRIA disciplinary cases, those solely based upon a criminal conviction, licensee’s mitigation and rehabilitation evidence is critical. In 1998 King was convicted of indecent assault. He was sentenced to 5-10 years in jail, 10 years probation and supervision under Megan’s law. After parole and King satisfied all terms of his sentence, did not violate probation or parole, properly secured his barber license, and practiced his profession in an unblemished manner. He properly notified the Board of his conviction.

The Barber Board, after a hearing, revoked King’s license based upon the misdemeanor conviction and probationary sentences. King appealed. Commonwealth Court ruled the Barber Board abuses its discretion in revoking the license based upon CHRIA. As the licensee did not violate the Barber licensing statute, there was no other basis to discipline him.

This case is significant because Commonwealth Court relies upon Article 1, Section 1 of Pennsylvania’s Constitution. This Article guarantees Pennsylvania residents the right to engage in any of the occupations of life. By referencing a state constitutional guarantee the court effectively holds this rights outweighs CHRIA’s general purpose, non-mandatory discretionary license disciplinary.

King emphasizes Boards’ general statements of public safety concerns of a future occurrence is not proper evidence upon which it may base a discretionary disciplinary action. The Board abuses its description when it revokes licensure based on supposition that the licensee could potentially be an instructor for female students under the age of 18 or have contact with minor clients. Such speculative reasoning is flawed.

King rejects Board member perceptions that criminal convictions scar licensees’ character forever, with no possibility of rehabilitation. King instructs licensing Board to consider and properly allow for rehabilitation. King follows a line of 2018 Commonwealth Court cases instructing Pennsylvania licensing Boards that CHRIA is a not a proper basis to suspend or revoke a constitutionally secured property right. https://www.phila-criminal-lawyer.com/blog/2018/05/another-appeals-court-reverses-a-pennsylvania-licensing-board-disciplinary-decision.shtml

Fully employment and hard work is the rule. This is in contrast to many recent cases of which I have written. Commonwealth court is telling the boards as a matter of policy, “let these people work”. Rehabilitation is part and parcel with employment, which is part and parcel with members being productive people in society.

Call me to discuss your case.

Act 6 of 2018 — All Licensees Must Report Criminal or Disciplinary Charges with in 30 Days

Act 6 of 2018 is a new law in 2018. It represents a fundamental shift in Pennsylvania licensees’ duty to report criminal charges and disciplinary actions filed against them in any jurisdiction in the entire country. The General Assembly passed the new law in anticipation of medical marijuana. The enforcement environment is getting much stricter in Pennsylvania. Every Pennsylvania professional licensee must report the misdemeanor and felony criminal charges to their respective board within 30 days receipt of criminal charges. It is a disciplinary offense for any licensee to not report within 30 days of receipt of criminal charges.

Act 6 of 2018 specifically authorizes the The Bureau of Professional and Occupational Affairs (“BPOA”) to subscribe to JNET. My prior blogs discuss JNET, the criminal reporting database network to which the Nursing Board began subscribing.   JNET now levels the reporting responsibility and Boards learning of its licensees’ criminal conduct.  There was a significant difference between nurses and doctors, pharmacist, realtors, cosmetologists, and funeral directors (and all others) in their criminal charge reporting responsibilities. All licensees are now treated equal. Licensees can not wait to report — thinking at a preliminary hearing charges will be reduced to a summary offense, for which there is a guilty plea. The charging is the reportable event, not the end result.

This all began in 2014.  In late 2014 the General Assembly modified Pennsylvania professional licensing regulations to require nurses to report criminal charges, not conviction, within 30 day days of charges being filing. The BPOA utilized the last several years to create a new enforcement infrastructure and mechanisms to insure disciplinary action is initiated against all nurses who either reported or they learned of criminal conduct or did not report at all.  The reporting responsibility is in addition to reporting criminal charges upon licensee renewal.

Through JNET the Nursing Board became familiar with the criminal reporting subscription service and its information power. Obviously the Board created a flow chart starting at receipt of criminal information through to disciplinary charge initiation for failure to report. The Nursing Board worked out the differences between JNET and nurse reporting of charges. Steps between failure to report, Board investigation, document review, and charges have also been ironed out.

Apparently BPOA had a significantly positive experience with JNET’s notification process, allowing it to better enforce nurses’ reporting responsibility. Expanding 30-day reporting of criminal activity to all other 25 licensing boards will inundate the BPOA with information regarding licensees’ criminal behavior.  This will produce some delays in failure to report and initiation of criminal charges.

The Act also gives the BPOA prosecutor not just the authority but the command to initiate within 30 days an emergent suspension if a licensee’s criminal acts reveal a clear and present danger to the public. The licensee is afforded a preliminary hearing to contest the automatic license suspension. This “automatic suspension process” is not new.

All licensees were spared the obligation to report summary Drug Act violations. By this I mean summary charges for disorderly conduct written by cops giving a break to licensees caught with illegal marijuana. This reporting requirement was in the original versions of the bill but stricken from the final version. The Act includes authority for every Board to institute a schedule of fines for escalating number of failure to report charges.

Act 6 includes a very limited right of expungement. This is only for disciplinary action for failure to comply with continued education requirements. The law explicitly precludes any expungement of any disciplinary order by any board for any other offense. Aside from capping Board fines to $10,000, BPOA can enter a judgment against the licensee if the fine is not paid in 5 years.

Call me to discuss your case.

Disciplinary Action – Scope of Practice Certified Registered Nurse Practitioners

Certified Registered Nurse Practitioners (“CRNP”) can prescribe medication, examine patients, diagnose illnesses, and provide treatment, much like physicians do. In fact, nurse practitioners have what’s referred to as “full practice authority” in 20 states, meaning that they do not have to work under the supervision of a doctor. In the Pennsylvania, however, while CRNPs still have more authority than RNs, they must have a medical doctor sign on certain patient care decisions.

Nurse practitioners are increasingly becoming integral to medical teams as more and more hospitals and healthcare facilities are utilizing their expertise. Their experience as working nurses gives them a unique approach to patient care, while their advanced studies qualify them to take on additional duties that are usually left to physicians.

There are many different ways CRNP are exposed to practicing outside the scope of their practice.  Dispensing medications incorrectly or without a prescription is the first and foremost.  CRNPs are especially vulnerable to disciplinary action as they hold prescriptive authority to dispense Schedule II and other non-scheduled medications.  This blog will address CRNP’s legal duties.

CRNP’s must collaborate with a physician who holds a current license to practice in the Commonwealth.  When acting in collaboration with a physician in a “collaborative agreement” within the CRNP‘s specialty, the CRNP may perform comprehensive assessments of patients and establish medical diagnosis, perform and supervise diagnostic tests, institute referrals, develop treatment plans, establish prescriptive authority approvals for pharmaceutical treatments, complete admission and discharge summary’s, and order various supplemental therapeutic medical care. Supplemental medical care includes dietary plans, home health care and hospice, durable medical equipment, physical therapy and dietitian referrals, respiratory and occupational therapy referrals, and perform initial assessments of methadone treatment evaluations.

Methadone treatment and evaluations can be accomplished in conjunction with approval of a physician in the Pennsylvania methadone treatment regulations.  In this time of opioid crisis, CRNP’s prescribing methadone is a huge issue. CRNPs have sought clarification of their authority and qualifications to prescribe Suboxone.  63 PS § 21.283(c) of the Pennsylvania Code sets forth CRNP’s prescriptive authority.

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Every two years CRNP must complete 16 hours of board approved CE credits in pharmacology.  Initially, CRNPs require 45 hours of coursework specific to advanced pharmacology through the a professional nurse education program within five years before initial prescriptive authority approval. Board prescribing and dispensing schedule II restrictions include only 30-day supply authorizations and only in conjunction with a collaborative agreement setting forth such authorization by the physician in the agreement.

CRNP are limited to prescribing 90-day supplies of schedule III and IV controlled substances, which physician based authority is identified in the collaborative agreement. CRNP may not delegate prescriptive authority to other RNs working in the practice. CRNPs may not issue pre-signed prescriptions, must receive a national provider identifier number, and all prescriptions must include the CRNP’s name, title, and Pennsylvania CRNP certification number.  All labeling, packaging, dispensing, administering, and prescribing must be done in compliance with all other federal and state regulations and Pennsylvania Department of Health chapter 28 code of regulations.

CRNPs must register with the DEA and follow DEA minimum standards when prescribing, administering or dispensing controlled substances.  DEA federal regulations require the CRNP to properly conduct and documents their initial evaluation, physical examination, receipt and review the patient’s medical and medication history.  The physical evaluation includes examining the heart, lungs, vital signs, pain level, and body functions that relate to the patient specific complaint. Re-evaluation‘s and follow up should follow accordingly.

Patient counseling and medical records review are warranted to properly document symptoms observed and reported, diagnosis of any condition for which the controlled substance is being given, and the directions for administration. If the CRNP continues to prescribe the controlled substance, medical records must reflect changes to symptoms observed and reported and modification, alteration, or a limitation of any diagnosis of the condition for which the controlled substance is being given and the directions given to the patient.

The CRNP may dispense emergency, short-term prescriptions in conjunction with examination, evaluation, and proper diagnosis if such is then documented in the patient’s medical record.  Any emergency prescription must be delivered to the pharmacist within three days, and the emergency prescription may not be refilled or issued consecutive to an emergency prescription unless there is a follow-up physical examination.

Compliance with the terms and conditions of CRNP prescriptive authority is not necessarily compliance with Nursing Board scope of practice or standards that are acceptable and the prevailing practice.  Compliance with the above PA Code minimum standards does not restrict Nursing Board disciplinary action CRNPs based upon violations of the Drug Act or any other nursing licensing regulation.

Federal and State Drug Act issues address improper prescription dispensing, improper charting, failing to chart, or performing medical malpractice in the course of acting outside the scope as a CRNP.   Mere compliance with PA Code rudimentary medical practice and charting responsibilities and basic medical care giving duties does not shield the CRNPs from scope of practice and other claims.

CRNP scope of practice is governed by the collaborative agreement by and between the supervising physician and CRNP along with any large scale institutional employment job position limitations. Improperly administering medications earlier than the time set forth in a prescription and refilling daily, weekly, or 30 day prescriptions will well necessary trigger employment or board based disciplinary issues.

This is why the prescriptive authority established in the collaborative agreement between a physician and a CRNP  must satisfy very specific requirements. The collaborative agreements must be in writing, identifying the category of drugs this specific CRNP is allowed to prescribe as per their certified practice.   The collaborating physician obviously must sign the agreement and a copy must be submitted to the Bureau Professional and Occupational Affairs.

The agreement must be updated every two years, or whenever the agreement is changed, and must identify the professional liability insurance limits the physician’s policy provides.  Anytime the prescriptive authority in the collaborative agreement is updated or terminated, the CRNP (and no one else) shall notify the Board in writing of such changes. The CRNP is allowed to advertise or publicly display sign identifying their participation in a medical practice. A licensed CRNP may include such nomenclature after their name on any letterhead, business cards, and practice advertising.

CRNP must undertake and only engage in their specific practice area and only perform procedures in which they have necessary knowledge, preparation, experience and competency to properly execute.  CRNP practice is limited in scope to only their specialty and consistent with their CRNP collaborative agreement. This is the scope of practice provision that allows for the allegation CRNP prescribing medication drugs or other items outside the scope of their practice.

Certification as a CRNP may be suspended, revoked, or otherwise subjected to remedial measures when, after notice of and an opportunity for a hearing, the board finds that a CRNP has engaged and performed medical functions and tasks beyond the scope of practice permitted for a CRNP, that CRNP specially, or in violation of the collaborative agreement.  This is the general, catchall provision, for a potential penalty, based upon the allegation that a CRNP performed a medical function for which the CRNP does not have the necessary knowledge, preparation, experience and competency to perform properly or is not qualified under the CRNP Act.

Call me to discuss your case.

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.

 

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.
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