The recent Commonwealth Court case of Blair v. Board of Nursing, 2013 Pa. Commw. Unpub. LEXIS 388 (May 28, 2013), reviews a Pennsylvania Nursing Board decision affirming the substantial and egregious hurdles PNAP places on reinstatement of nursing licenses. Blair, unfortunately, plead guilty to a misdemeanor drug possession charge in 2006 and admitted to heroin addiction stemming from migraine headaches. Over the next several years he entered and successfully completed several drug treatment and detoxification programs, securing temporary reinstatement of his license. Blair was compliant with all recommendations of PNAP even though he refused to enroll in PNAP. Blair rejected PNAP because he successfully worked as a home nurse in a setting without the ability to be monitored. This monitoring was PNAP’s only condition, of forty-two, to which he could not comply and PNAP would not waiver, requiring the institution of disciplinary proceeding. This case discusses the disciplinary action the Board of Nursing took against Blair and the results.Importantly, the appellate court’s review of Department of State licensing board decisions is limited to determining whether the findings of fact are supported by substantial evidence and whether the board committed errors of law or constitutional violations. The licensing board may accept or reject the testimony of any witness, either in whole or in part. When reviewing a board decision, the appellate court may not reweigh the evidence or second guess the board’s credibility determinations. Appellate review of a board’s disciplinary sanction (requiring monitoring in this case) is limited to determining whether the board flagrantly abused its discretion or executed its duties or functions in a purely arbitrary and capricious manner. This a very high burden.In Blair, several facts are significant. Blair plead guilty in 2006 to heroin possession, Blair voluntarily submitted to a mental and physical examination, Blair was diagnosed as suffering from heroin dependence disorder in remission, and the finding that Blair “is safe to practice professional nursing only if he participates in a structured monitoring and treatment program for three to five years for his opiate dependence disorder.” Blair’s examination was performed pursuant to 63 P.S. §224(a)(2), which states in part, “in enforcing this clause … the Board shall, upon probable cause, have the authority to compel a licensee to submit to a mental or physical examination as designated by it.” Blair’s admission of heroin dependence gave the Board probable cause to seek the mental and physical examination. A conviction for violating any provision of the Drug Act is both an automatic one year suspension and probable cause for an evaluation upon reinstatement. DUI’s do not automatically constitute a basis for evaluation but the Board will try to use it as a basis to seek voluntary enrollment in PNAP. Don’t fall for this.Once compelled to be examined (through voluntary enrollment in PNAP or by order), the trap is set. The catch is the report language the Board’s doctors know to employ becomes the death blow to any license. The Commonwealth’s attorneys uniquely and solely rely on their expert to hang their entire license stripping case. No other evidence is necessary. The Board’s doctors performing these examinations are aware that a diagnosis of any condition, regardless of remission, is the kiss of death for any license. The Board’s doctors employ the same language in every medical and physical report involving individuals with drug use histories. Softly concluding the licensee’s medical condition of drug addiction or use is in “full remission” is a meaningless phrase which the Board ignores.Once diagnosed, the doctor typically concludes that the licensee must still undergo treatment and monitoring in PNAP. Once PNAP is recommended, the proposed consent decree/settlement agreement with PNAP becomes the problem. This because, as the Blair court stated, “PNAP’s standard treatment contract, which is modeled after the Bureau of Professional and Occupational Affairs’ (Bureau) Professional Health Monitoring Program (PHMP), prohibits participating nurses from practicing either in a home care setting or without direct supervision in the workplace. As part of its agreement with PHMP, PNAP cannot modify the contract provisions prohibiting practice…”It is this important statement, of which every Board attorney knows, the Board knows, and the licensee does not know. The forty two conditions of every PNAP agreement, contract, stipulation, settlement, or Board Order, are non-negotiable. It’s a take it or leave it settlement. Unfortunately, once PNAP is proposed, Blair reveals that the hearing officers and the Board will compel the exact same forty two conditions regardless of the licensee’s individual circumstances, which conditions the appellate courts will not disturb. This why experienced counsel is necessary to avoid consensually stepping into this PNAP trap. Please call me to discuss your case.