Drugs and the Mental and Physical Evaluation – The Assessment Trick

On Behalf of | Nov 17, 2015 | Firm News |

I have been overrun by client consultations, new cases, and handling existing cases involving Pennsylvania licensing board’s Petitions for Mental and Physical evaluations. I attend almost every one of these with my clients.  Two consistent fact patterns that start this entire process are employment based positive drug tests and a driving under the influence conviction or ARD enrollment.  A criminal charge or failed drug test typically result from self-medicating due to a physical injury or mental health condition. Sometimes there is the single use of sleeping agent with the unlucky and unfortunate call for a random drug test at work. Professional bureau investigators and employers take these failed drug tests and DUI ARD or convictions very seriously.  The Petition for  Mental and Physical is the Boards’ way to have a professional medically evaluated.What the employee/professional does upon failing a drug test or receiving a DUI (and now reporting it to the Board in thirty days as required) dictates how the case could conclude. Obviously failed drug tests are a huge concern when the discovery drug is one for which the licensee does not have a valid prescription. The same concerns exist for a drug related DUI.“What is done” by the professional should be nothing!  Mandatory Board reporting is a must.  But do not participate in any employment related or Voluntary Recovery Program (“VRP”) voluntary assessments. Don’t fall for the threat from a PHMP or PNAP case worker saying “We will have to close the file, report you to the legal department, and you could loose your license.”  This an empty threat.  Single offense DUI or testing positive for a medication utilized to treat a documented medical condition will not result in legal action.  These PHMP case workers are merely trying to scare professionals into going to their assessments — which never work in the licensees’ favor.Any employment related drug test failure automatically results in job termination and Board reporting. Here is where employers and Board investigations begin. It is my firm conviction that the professional should never attempt to explain a long-term medical or mental health condition that may have gone un-diagnosed or untreated. Sheer speculation on the licensee’s behalf that disclosure will save a job merely invokes sheer terror of potential patient injury on the employer’s behalf.Why would a professional attempt to “confess” or seek lenience  from an employer whose sole focus of any drug related investigation is to absolve itself of potential civil, criminal or regulatory liability. At this juncture, an employer (hospital, nursing home, medical practice, surgical group, and/or staffing agency) tries to secure incriminating statements from the employee/licensee, secure cause for termination, and concrete evidence for Board reporting.  In this context, the medical employer becomes a mandatory reporter to the Board, with immunity to provide all information it secured in its investigation. The statements, drug tests, and any medical records an professional provides merely become the stepping stone and jumping off point of a Board investigation.Agreeing to attend an employee assistance program or PHMP assessment upon receipt of a letter suggesting such (see my other blogs) just creates more evidence for the employer and Board to utilize to discipline the licensee. Professionals seeking PHMP assessments “to be cleared because this will all go away” have just given away the farm. Licensees of all sorts are then required to participate in mental health fishing expeditions with compelled disclosure in a non-confidential mental health and medical treatment histories, assessment conducted by untrained individuals who are required to disseminate any and all information provided.Almost one hundred percent of my clients have attended these assessments.  These non-expert assessors are financially motivated to generate business.  Stringing together standard and typical histories of long term social alcohol use that culminates in a DUI (criminal interaction) allows the Livengrin, Marmont, Caron, Malvern Institute social workers to speciously conclude a DSM -IV diagnosis for alcohol abuse or dependence.  It is absurd but is based only on the words coming from the professional licensee who has just agreed to disclose all confidential medical information, signed forms, and told them everything; all done with the hopes of “making this go away” or to “keep my job and license”.This the biggest mistake of your career.  I have stated it many times in my blogs;  Trying to save one’s current job at the expense of your lifetime professional license is analogous to trying to win a small battle in a war, which win will merely cause the loss of the entire war.Suggestions of impairment, threats of reporting the licensee to the board, or turning files over to the legal department are typical scare tactics. Testing positive for ambien used in a single plane flight, amphetamines used on a single occasion from a family members’ prescriptions, or a weekend back strain causes one to borrow a family members tramadol are all typical occurrences. These actions do not amount to an impaired professional suffering from a drug or alcohol addiction.Suggestions of such are grossly out of context and not a basis for any person to enroll in the PHMP.  The burden of proof is: Does the licensee suffer from a drug or alcohol addiction or disease then renders them incapable of safely practicing medicine?   How can one positive drug test allow for this conclusion.  Untrained caseworkers seek to secure or a long-term drug or alcohol use history through superficial application of DSM criteria. Overlaying such with a single positive drug test, caseworkers feel empowered to take advantage of licensees who are afraid of “Board involvement” in their license. However, such cannot be farther from the legal truth.I get exasperated at the level of deceit and untruths told by these caseworkers to take financial advantage of the licensee at a time of grave professional concern.DO NOT TALK TO THESE PEOPLE. CALL ME FIRST.  DO NOT MAKE THE MISTAKE OF BELIEVING ANYTHING THESE CASE WORKERS, SOCIAL WORKERS, ASSESSORS SAY UNTIL YOU SEEK LEGAL COUNSEL.  UNDERSTANDING THE KEY WORDS THESE MANIPULATIVE PEOPLE UTILIZE, SO THAT YOU THE PROFESSIONAL UNDERSTAND THE COERCION BEING EMPLOYED WILL RENDER CLEARER THE PATH TO RESOLVING THE LEGAL ISSUES TO BE CONFRONTED.