For the Defense - Vol. 5, Issue 2 - 16

Most of the boards permit a licensee to be
disciplined if the licensee enters ARD under a
felony. If you have a client who is charged with
a felony and is offered ARD, you should ask the
District Attorney to allow your client to enter
ARD under a misdemeanor charge, as opposed to
the felony charge. In several cases, I persuaded
the District Attorney to permit my client to enter
ARD on a misdemeanor charge by agreeing that
if ARD is violated, we will stipulate to reinstate
the felony charges. This protects the district
attorney's office in the event of any violation of
ARD.
It is also important to note that I cannot tell you
how many times I have read an Order to Show
Cause, which is the charging document against
a licensee, that contains a Criminal Complaint
and Affidavit of Probable Cause. So despite
a client's record being expunged by virtue of
successful completion of ARD, your client will face
disciplinary charges that will result in permanent
discipline on their professional license. That
information is public, so even though a person's
criminal record has been expunged, anyone
will be able to look at a board's public website
and see a copy of the Criminal Complaint and
Affidavit of Probable Cause.
To give you some additional background on the
discipline process, when the BPOA learns of an
arrest, the matter is referred to the Professional
Health Monitoring Program ("PHMP"), which is
a department within the BPOA that administers
two programs: the Voluntary Recovery Program
("VRP") and the Disciplinary Monitoring Unit
("DMU"). The VRP provides a method by
which professionals suffering from a mental
or physical disorder, such as substance abuse,
can be directed to appropriate treatment and
receive monitoring to ensure that they remain
capable of practicing safely. To be eligible for VRP
enrollment, a licensee must agree to enter into
a Consent Agreement with the licensing board
for a period of not less than three (3) years. The
Consent Agreement stipulates that disciplinary
action, including suspension or revocation, will
be deferred so long as the licensee adheres to
the terms and conditions of the agreement and
maintains satisfactory progress in the program.
When a licensee successfully fulfills the terms
of the Consent Agreement and completes the
VRP, no disclosure, publication or public record
is made of the participant's involvement in the
VRP or the events precipitating their enrollment.
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For The Defense l Vol. 5, Issue 2

The DMU is essentially the same as the VRP;
however, it is public discipline. Participation
in the DMU will remain on a licensee's record
indefinitely. More information about these
two programs can be found at https://www.
dos.pa.gov/ProfessionalLicensing/OtherServices/
ProfessionaHealthMonitoringPrograms/
Pages/Disciplinary-Monitoring-Unit-GeneralInformation.aspx.
In the initial notification, the healthcare
licensee will receive a letter from the PHMP
requesting the licensee to call for a drug and
alcohol evaluation, even if the licensee is only
cited with a summary offense. It is not unusual
for healthcare professionals issued citations
for public drunkenness or disorderly conduct
to receive a letter from PHMP requesting that
they submit to an evaluation after the licensee
pled guilty to the summary offense. The PHMP
will advise the licensee that in order to avoid
disciplinary action against their healthcare license
and be eligible for participation in the VRP, the
licensee must immediately stop working until an
evaluation is completed. In some instances, the
results of these evaluations could take weeks
or even months. Additionally, any admissions
made by a client during an evaluation may not
be privileged. In my experience, most of the
individuals who go for these evaluations are
determined to be in need of treatment. The
PHMP will then require that the licensee sign a
very stringent three year Consent Agreement
obligating the licensee to enter inpatient or
outpatient treatment, participate in several AA
or NA meetings per week, and submit to random
urine screens. Additionally, the licensee must
advise their employer that they are participating
in the PHMP program. If the licensee fails to
comply, the board may suspend the license
without a hearing.
Depending on your client's situation and the
pending criminal charges, it may tactically be
best not to schedule that evaluation. Your client
can continue to work. A refusal to schedule the
examination will trigger the respective board
prosecutor to petition for an Order compelling
the licensee to attend a mental/physical exam
with a psychiatrist. This exam is complex, the
results of which will shape the Board prosecutor's
approach in the licensing proceedings. Since this
exam will not occur until several months after an
arrest, with proper preparation and guidance, the
licensee is more likely to pass this evaluation.
https://www.dos.pa.gov/ProfessionalLicensing/OtherServices/ProfessionaHealthMonitoringPrograms/Pages/Disciplinary-Monitoring-Unit-General-Information.aspx https://www.dos.pa.gov/ProfessionalLicensing/OtherServices/ProfessionaHealthMonitoringPrograms/Pages/default.aspx
For the Defense - Vol. 5, Issue 2

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