The PHP has for a while been trying to compel Pennsylvania health care professionals in the VRP or DMU to undergo additional evaluations and inpatient treatment for conditions outside the scope of the VRP agreement. The PHP then shuttles the healthcare professional to Marworth who makes recommendations that exceed the authority granted to the PHP and PHMP under the VRP Agreement. Nothing within the health record will indicate inpatient recommendations conditions that are unrelated to a prior diagnosis of alcohol use disorder.
Enrollment in the DMU does not authorize PHMP, or its subcontractors (Marworth), to require licensees to comply with whatever recommendations are made. Recommendations must be related to the impairment or impairments that the original VRP Agreement encompasses. The plain and unambiguous language of the VRP Agreement declares that “Licensee shall fully and completely comply and cooperate with the PHMP and its agents and employees in their monitoring of Licensee’s impairment under this Agreement.” (Page 4 under section 1 of “General”). This is the first condition of the monitoring order, that licensees fully and completely comply and cooperate with the monitoring of this “impairment under this Agreement.”
Commonwealth Court has made it clear that consent agreements are contracts and should be interpreted as such. Kenny v. State Board of Pharmacy, 203 A.3d 421, 427 (Pa. Cmwlth. 2019). Kenny was my case. It involved Mr. Knipe acting as if he was the Pharmacy Board. The Commonwealth court rejected such, directing that consent agreements be construed and interpreted as contracts. The NHP and PHMP, the court declared must “read the consent order as a whole and interpret each of the provisions together with the other provisions.” The PHMP and PHP are failing to apply these principles when considering licensee’s obligations under VRP Agreements.
In Kenny, a pharmacist was enrolled in the VRP pursuant to a Consent Agreement and Order that subjected him to monitoring for three years. The pharmacist was scheduled for release from the VRP. The pharmacist sought release from the VRP monitoring in May 2017. The PHMP director opposed the early release of the program despite evidence that the pharmacist had fully participated with the required monitoring. The evidence indicated that PHMP had adopted a rigid policy of opposing all requests for early termination of probation to reduce its workload. Although the Consent Agreement and Order expressly provided that the three-year period of probation may be “extended or modified,” the Board of Pharmacy denied the pharmacist’s request for release from the monitoring program despite unrebutted evidence of his sobriety, program compliance, and rehabilitation. Commonwealth Court admonished the PHMP and PHP, finding that the rigidity of PHMP’s position made the VRP Consent Agreement and Order’s promise of a modification “an illusory promise.”
Like the pharmacist in Kenny, the PHMP improperly seeks broad enforcement of the express terms and conditions of VRP Agreements through this new inpatient treatment requirement for an allegedly new diagnosis -but medically unfounded -disorder that are illusory. Based on the DMU Agreement, PHMP must also comply with the VRP contract. The PHMP continues to display rigidity and willingness to ignore the terms and restrictions that a VRP Agreement imposes both on the PHP and PHMP while requiring licensees’ strict compliance.
If the PHMP wants to claim a new use disorder for which treatment there could be violation, such disorder must first be found in the original VRP contract.
