Newspaper trumpet the legalization marijuana in several states. Articles track implementation of medical marijuana production, products, and sales in states with existing medical marijuana laws. Everyone is investing in marijuana producers and distributors. On November 12, 2018 the Philadelphia Inquirer reports with fanfare there are 84,000 Pennsylvanians registered as medical marijuana patients. The article emphasizes medical marijuana is not treating the medical condition stated on the licensee's card. Rather it is used to control medical symptoms of the 21 different serious medical conditions. Importantly, medical marijuana is replacing opiates to control pain and other disruptive physiological manifestations that originate from a diagnosed medical condition. This is success.
A new client recently contacted me regarding a puzzling PHMP/VRP letter he received. After a first offense DUI, the VRP contacted him and scared him to attend an initial evaluation. The Initial Evaluation As I have said many times, the PHMP's "Letter of Concern" is a lie. The PHMP is not concerned. The Letter of Concern.
I recently wrote a blog about the enforcement environment for Pennsylvania medical professionals. Pennsylvania's Disciplinary Environment -- PNAP Investigations Pennsylvania's medical related licensing boards are receiving a record number of reports accusing licensees of drug related diversion, DUI arrests for alcohol or drug intoxications (medical marijuanna), and other impairments that affect professionals' ability to practice safely. In almost every circumstance, licensees' alcohol and drug related conduct now generates Petitions for Mental and Physical Evaluations. I have written numerous blogs about the importance of preparing for these evaluations and promptly attending.
On October 4, 2018 Commonwealth Court issued a significant decision in King v. BPOA discussing the Criminal History Record Information Act ("CHRIA").This statute gives licensing boards a discretionary authority to discipline, suspend, revoke, grant, or deny licensure based upon a criminal conviction related to the practice of a license. CHRIA's general purpose, however, is to control the collection, maintenance, dissemination or receive a criminal history record information.
PNAP case managers routinely contact nurses whom they think are impaired. Self reporting, DUI - ARD or convictions, or workplace complaints are the typical trigger. The goal is to secure PNAP/PHMP enrollment.
Advanced Roadside Impaired Driving Enforcement (A.R.I.D.E.) is the forefront of drunk driving enforcement in the age of legal and medical marijuana. State Troopers are trained to identify impaired drivers by substances other than alcohol. These officers receive training on Standard Field Sobriety ("FST") and other field tests, and eye tests involving the convergence, pupil size, and reaction to light as well as methods of determining ingestion of the substance and classification of drugs (illegal and legal) by the type of impairment.
Pennsylvania's Medical Marijuana Act sets forth a very specific administrative appeal process addressing prescribers and card holders subjected to a disciplinary action. Within the Department of Health, Department Office of Medical Marijuana, violations of the Act shall be prosecuted by the Office of Legal Counsel. Evidentiary rules and administrative practice will be governed by the General Rules of Administrative Practice and Procedure. ("GRAPP")
An administrative appeal of any department action affecting your medical marijuana card or license to prescribe must be taken in writing within 30 days after the individual or person to whom the action of the offices directs or issues a notice of the action. An untimely appeal will be deemed an admission of the violation of the Act and may result in dismissal of any late appeal with prejudice. 28 Pa.Code § 1249.39.
Failure to answer a disciplinary action in a formal proceedings will result in a default judgment being entered and the allow the Department of Health to refuse to grant a late hearing request. All documents must be filed in writing with the clerk, with the license or permit number, as well as the identity of an individual filing the petition and their mailing address. Failure to comply with these simple pleading requirements may result in the Department rejecting any filing.
A party shall be represented by an attorney at all stages of the proceedings. A party includes a corporation. The attorney must be in good standing and admitted to practice before the Pennsylvania Supreme Court or upon motion having been admitted in another jurisdiction and admitted in Pennsylvnaia pro hac vice.Proper pleading practice includes filing formal answer within 30 days of receipt of the order to show cause, including legal objections and any denial of facts averred in the original order to show cause. Affirmative defenses, admissions or denials must be stated clearly and concisely. Please call me to discuss your medical marijuanna card and any displinary action you may face.
Many professionals consume alcohol in a moderate and temperate manner. Reasonable, social alcohol consumption that results in a driving under the influence criminal charge is an unfortunate event. The criminal consequence and interactions with the justice system are necessary impediments to excessive drinking.
My blogs focus on the intersection of life and your professional license. A significant public policy debate is raging about medical marijuana, recreational marijuana usage, and the licensed professional. This is you - nurses, pharmacists, doctors, or any other Pennsylvania or New Jersey licensed professional. I recently weighed in on this conversation in an article published in the National law Journal, American Law Media's website. The Professional Licensee and Medical Marijuana: Just Say No! (hit the 411 Link on my web page). 411 Medical Marijuana and the Licensee On August 10, 2018, a federal judge issued a decision affirming an employer's ability to discipline and terminate an employee who fails an employment related drug test for medical marijuana. The employee, a forklift operator, with a known prior work-place injury was taking prescription opiate medications, was asked to take a drug test as a condition of continued employment. The employer compelled a drug-free workplace consistent with federal occupational health and safety work conditions. The employee indicated he would fail the drug test because he ingested prescription medicine, specifically medical marijuana. The employee argued the decriminalization of medical marijuana under New Jersey's Compassionate Use Medical Marijuana Act ("CUMMA") and Law Against Discrimination ("LAD") compelled the employer to make an accommodation. The employer denied an accommodation, terminating the employee for refusing to take the drug test. (The same result would occur if the employee tested positive for marijuana.) The employee sued in federal court. The court determined neither CUMMA nor the Law Against Discrimination takes priority over an employer's drug free work place rule. The employer was merely enforcing OSHA's and the federal criminal law regarding drug free work places. Here, the employer argued, in the work place the federal supremacy clause voided states' laws allowing for medical marijuana and the decriminalization of recreational marijuana usage. New Jersey and Pennsylvania are at will employment states allowing for employees to be fired for good reason, bad reason, or no reason at all. The current federal and state versions of the American With Disabilities Act have created a legal landscape in which it is unlawful to discriminate against current or potential employees who suffer from a disability. These laws seek to level the employment hiring playing field - a disability should not preclude hiring in a job they could do. These employees can still be fired or not hired if the extent of the disability precludes the performance of the particular employment. In this case, the court evaluated the fork lift operator's claim under the four prong test determining that a disability was present, medically based, and constituted a physical handicap. The court determined the employee was qualified to perform the essential functions of the job and that his handicap should not preclude him from enjoying equal access to employment due to discrimination. However, the court framed the issue thereafter as distinguishing a treatment (medical marijuana) from a disability (needing a wheelchair). In this case, as with all medical marijuana cases, the employer has a drug-free workplace condition of employment. The court was tasked with determining the legality a drug-free workplace as a condition of employment regardless of the medical treatment needs of the employee. New Jersey's criminal code 2C:35-18 and administrative law 24:6I-6(a) eliminate criminal and civil/administrative penalty for medical marijuana use. However, most states also allow employers to not accommodate the medical use of marijuana in the workplace. As well federal law still prohibits the use and possession of marijuana. Unfortunately, medical marijuana cases involve this singular unique determining factor; existing federal law stating marijuana is illegal. This is the distinguishing factor between going to work under the influence of prescribed opiate painkillers and prescribed medical marijuana. This case involves an individual operating a forklift. Many of my clients are nurses, pharmacist, surgeons, realtors, engineers, respatory therapists, radiology technologist, pulmonary specialist, massage therapist, ophthalmologist, optometrists, dermatologist. Each of these professionals will not be permitted to work in an environment where their professional judgment, skills, and capability is compromised as a result of illegal use of marijuana or the necessary medicinal use of marijuana in a therapeutic dose as a result of suffering from a medical condition that is not able to be treated with any other medication.
If you are facing a potential revocation of your medical license, having an attorney by your side may help sway the board to choose an alternative action.