Fighting and Reporting Out-of-State Discipline to Pennsylvania’s Licensing Boards

A consistent and significant problem in many Pennsylvania disciplinary licensing matters I handle involve professionals who mistakenly stipulate to discipline in another state and then mistakenly fail to report the discipline to Pennsylvania’s licensing board. The reporting must be done within ninety days of the final disposition of that matter. This is a statutory requirement and set forth at 60 P. S. §221.1.

Failing to report is huge disciplinary error easily avoided. Pennsylvania’s licensing boards (including Nursing, Medical, Pharmacy, Osteopathic, Automobile, Real Estate, Social Work, Marital Counseling, or Psychiatry) receive notification of disciplinary decisions from other jurisdictions based upon information provided in many traveling professional’s applications for a second or third state license.When a final disciplinary order is entered in another jurisdiction, that jurisdiction communicates to every state for which the licensee holds a license. Pennsylvania is typically one such jurisdiction because many professionals secured their first professional license here upon graduating from one of our many fine teaching institutions. Failing to report a discipline is easily discovered by, and the basis for discipline in, the Commonwealth of Pennsylvania.

With regard to the factual basis of any disciplinary proceeding, I see the same mistake many times: inexperienced council or unrepresented professionals erroneously agree to discipline and sign agreements or stipulations unaware of how the terms of the agreements will affect a Pennsylvania licensee. To the inexperienced practitioner (attorney or professional), seasoned state disciplinary counsel seek and secure amazing factual stipulations that admit medical errors, professional incompetence, or drug and alcohol impairments. These factual stipulations are then linked to legal stipulations that satisfy each jurisdiction’s legal burdens for suspension, probation, or revocation of a license. Once this is done, discipline in Pennsylvania is inevitable.

After agreeing to certain facts and what may seem moderate discipline, a certified order of stipulated facts and discipline makes its way to Pennsylvania. The unrepresented professional may forget this fact, but agrees to the discipline because of an inability to hire experienced counsel or the prohibitive cost of mounting an effective defense. Unfortunately, Pennsylvania’s respective licensing board commences its own disciplinary proceeding based upon the factual and legal stipulations to which the licensee has already agreed, whether or not they reported such to Pa. Hence, I am called to address a second disciplinary process commenced in Pennsylvania.

The case of Phillip Romanelli v. Bureau of Professional and Occupational Affairs, 2011 Comm.Ct. Lexus 911 (November 1, 2011), is a clear example of the pitfalls of failing to fight a discipline in another state, failing to report the discipline, and then failing to appear and contest Pennsylvania’s discipline. Romanelli lost his license in another state, failed to timely report such and then decided too late to fight Pennsylvania’s proceedings. Ultimately, Pennsylvania’s license revocation proceedings were allowed.

The Romanelli case makes clear that it is the licensee’s responsibility to respond to all litigation documents. Failure to do so will be at one’s own pitfall. The dual difficulty in these cases is binding decisions from another jurisdiction and traveling to the Commonwealth. It is important to contest every aspect of every proceeding in another jurisdiction and not stipulate to facts that will be included in any final decree or decision of a licensing board. Stipulations to unfitness, incapacity, professional misconduct, or drug and alcohol addictions and impairments will allow the Pa. boards to restrict, limit, revoke, or emergently suspend your license.

Do not ignore Pa. corollary disciplinary actions merely because you are now practicing your profession elsewhere. A subsequent discipline in Pa. will have to be reported back to your new home state where one disciplinary matter was just fought. Inability to travel to Pa. or not practicing in Pa. are not basis to ignore these proceedings. I represent many individuals residing and practicing throughout the United States with an initial Pa. license. Many of my clients are professionals unable to return to Pennsylvania to address the hearings or deal with the Pennsylvania Court filings. I fight the case in Pa. while you remain home in your new adopted state.

Stipulations to a monitor program or treatment in another jurisdiction will become the basis for Pennsylvania to require the same or suspend your license. Pennsylvania’s monitor program, PMP or PHMP, is governed by an overly restrictive and statutorily required boilerplate contract. Even if you fail to report the discipline, which is a separate basis for discipline in PA, agreeing to a monitored program outside of Pa will result in Pa’s version being forced upon a licensee in Pa. Do not sign any such agreement without fighting that case.

Currently I represent an individual who was counseled incorrectly on this exact issue. She is now confronted with a non-Pennsylvania disciplinary action/monitoring requirement being utilized by the Pa. licensing board to investigate her for both for failure to report and the necessity of monitoring. She has secured new non-Pa. counsel to open and contest the underlying disciplinary actions so as to eliminate the possibility of having to enter the PHMP and being disciplined for failing to report a discipline. Returning to the first disciplining state and re-contesting agreements or stipulations is the only way to proceed.

Please call me to discuss any non-Pennsylvania disciplinary action and its ultimate affect on your underlying Pennsylvania license. Please call me to discuss the requirements for reporting you’re non-Pa disciplinary action on your active Pennsylvania license.

Please call me to discuss any Commonwealth of Pennsylvania enforcement action you receive as a result of a non-Pennsylvanian disciplinary proceeding or agreement. Please call me to discuss negotiations and strategy of your non-Pennsylvania disciplinary matter with the anticipation of having to report the same to the Pennsylvania licensing authorities.

Advertisements

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.

%d bloggers like this: