I represent health care workers in Pennsylvania’s health care professional monitoring program. Some are voluntarily in the program. Some are forced. Some of my clients’ contracts have been extended from 3 to 5 to 7 years in either PNAP, SARPH, or PHP for a minor, single violation of the Consent Agreement. Some of these extensions are forced or voluntarily entered. It is time to end your PNAP PHP SARPH probation.
Some clients have their PHMP probation terminated and their license suspended after the Board prosecutor files a Petition for Appropriate Relief or PAR. This filing is made after the PHMP and PNAP/PHP case worker complains to you and then the prosecutor that drug tests are missed or positive, or other violations of the agreements or Board orders occurred. The problem here is that case workers claim positive tests or other violations right when licensees are about to be finished their probation.
A recent case has such a recurrent time line, I thought I would lay it out. The licensee’s PNAP Agreement started before November of 2009. The formal Consent Agreement is dated November 2009. In July 2013 the PNAP case worker claimed a drug test violation. However, obviously the licensee should have been out of the program by then. In October 2013 the prosecutor filed a petition to suspend the license. That petition carries an automatic license suspension until “things are figured out”. This is the PAR. Sound familiar yet?
Even before the PAR was filed, the licensee remained complaint with PNAP, attending an evaluation in July of 2013 that found an alcohol use disorder in full sustained remission. This means there is no active impairment. The October 2013 license suspension matter did not get a hearing until October of 2016, a proposed adjudication was decided in December 2016 and the full Nursing Board ordered license reinstatement in March 2017. From 2013 to 2017 the licensee’s license was suspended — but the alcohol use disorder was in full sustained remission as the license participated in PNAP the entire time of the suspension.
The PNAP compliance meant there was no ongoing impairment and there was no evidence of any disorder rendering the licensee unable to safely practice. As a matter of fact and law, the Board could not — BUT DID — require the licensee to re-enroll in PNAP as a condition of reinstatement of license. To get a license back, the licensee had to follow the order. This order was inconsistent with the facts and law that revealed between 2014 – 2017 the licensee logged into record trek thousands of times and was tested at least monthly, costing over $5000.
Jump forward to 2020. This licensee is ready to finish the three year DMU probation from March of 2017 to March 2020. Not too funny, but the PNAP case worker just now claims a positive drug test and claims the need for another extension of the contract. Sound familiar? Yes…. everyday I hear this story. I file Petitions to Terminate this type of forced DMU Probation before PNAP or the prosecutor can file a PAR.
At this juncture after being forced into PNAP for 5, 6, 8 years, compliant licensees have attended thousands of AA meetings, 30-day inpatient, called Record Trac everyday, and undergo thousands of drug tests costing thousands of dollars. Some clients have spent $15,000 in inpatient care, $2500 in on going forced out-patient care, and more than $7500 in drug tests.
The typical Board order forcing DMU enrollment can be modified and subject to termination at paragraph 45. Please read that paragraph in your Board Order. Or if its a Consent Agreement, it is paragaph 7. Read them and call me. The case is Kenney v. Bureau of Prof’l & Occupational Affairs, State Bd. of Pharmacy, 203 A.3d 421 (Pa. Commw. Ct. 2019). Also read Thim v. BPOA, State Board of Nursing, July 24, 2019 Not Reported in Atl. Rptr. 2019 WL 3315143. These cases discuss the burden of proof for the Commonwealth when it alleges an ongoing impairment and when a licensee can get out of the DMU and PHMP.
In many of these cases, the Petition to Terminate Probation should be granted. The Boards can not capricious disregard evidence of no ongoing impairment. The Boards violate the law “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result.” Bentley v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 179 A.3d 1196, 1200 (Pa. Cmwlth. 2018).
Call me to discuss ending your PNAP PHP SARPH contract, DMU Order, and the torture these cases workers try to inflict every day, week, month, year of your probation.
