Wednesday, January 17, 2007

employment - nurses - licenses - suspension - violation of VRP agreement

Wittorf v. Board of Nursing - Cmwlth. Court - October 12, 2006 (publication ordered 01-10-07)

The Court upheld the decision of the State Board of Nursing to suspend the license of a nurse who had violated a consent agreement which he entered under the Voluntary Rehabilitation Program (VRP), 63 P.S. sec. 224.1(c).

The nurse entered the VRP agreement after he had been charged with DUI, a 2nd degree misdemeanor. The criminal case was resolved without a finding of guilt, when Wittorf successfully completed an ARD program, after which his criminal record was expunged.

The Bureau of Professional & Occupational Affairs then took action concerning his nursing license. It offered him a chance to enter the VRP in lieu of disciplinary charges being brought against him. In the VRP agreement, Wittorf stipulated that a) he was unable to practice nursing with reasonable skill and safety, due to his abuse of and dependency on alcohol. and b) that he had suffered from alcohol abuse or dependency for two years. Under the VRP agreement, Wittorf's license was suspended, but the suspension was stayed in favor of probation, conditioned on, inter alia, his complete abstention from the use of alcohol and his documented regular attendance and active participation in a support program.

The Bureau petitioned to suspend Wittorf's license when he later violated the VRP agreement by testing positive for alcohol several times and failing to submit support group attendance records after being requested to do so. At a hearing, Wittorf did not dispute violating the VRP agreement. Instead he argued that the Board had no authority to force him to enter into a VRP agreement, because he had only been charged with a misdemeanor, and the statute, 63 P.S. sec. 224(a)(5), only authorized suspension if the offense was a felony.

The Court held that Wittorf's argument ignored the Board's independent authority under 63 P.S. sec. 224(a)(2), 224(b)(4) and 224.1(c) to a) suspend or revoke a nurses license or, in the alternative, or to b) require a VRP program, when a nurse us "unable to practice....with reasonable skill and safety to patients by reason of....dependence upon alcohol...."

welfare - NMP-MA - ongoing v. monthly program

Brobst v. DPW - Commonwealth Court 09-26-06, publication ordered 01-10-07

The court upheld DPW's decision that the appellant was eligible for the monthly NMP-MA spend-down program but not the ongoing NMP-MA spend-down program, because a) her monthly expenses exceeded the specified income limits and b) her medical expenses were covered under the NMP-MA program, and so could not be deducted from her income.

The ongoing program allows a recipient to "received uninterrupted medical coverage for the full month. 55 Pa.Code sec. 181.13." The monthly program applies where income, after appropriate deductions, is still above the specified income limits, requiring the individual to "spend a certain amount on expenses every month before medical assistance can be available to cover the remaining expenses for the month, 55 Pa. Code sec. 181.13....[M]edical expenses covered by NMP-MA may not be deducted from monthly income....only expenses not covered by NMP-MA....."

The court held that the DPW program under 55 Pa. Code 181.13 was a valid application of the "flexible income test" required under Title XIX of the Social Security Act, 42 USC sec. 1396 et seq.

appeals - interlocutory appeal - collateral order - discovery

Feldman v. Ide - Superior Court - January 9, 2007

For an order to be deemed collateral and subject to interlocutory review
- The order must be separate and distinct from the main cause of action
- The right involved must be too important for review to be denied, i.e., the right is deeply rooted in public policy such that it goes beyond the controversy at hand, such as privacy.
- The question presented must be such that if review is postponed until judgment, the claim will be irreparably lost.

In a discovery controversy, there must be no effective means of review if the order were to be carried out. An order directing a doctor hired by the insurer of a tort plaintiff to produce documents about his income in worker's comp. and personal injury cases was held to be collateral and thus subject to interlocutory. However, the discovery order was upheld pursuant to the decision in Cooper v. Shoffstall, 905 A.2d, 482 (Pa. 2006).