To Testify or Not – A Licensee’s Hearing Rights

The confluence of administrative and criminal procedure is a significant issue I confront defending licensee disciplinary cases.  Sometimes, during a hearing, or a pre-complaint investigatory meeting, a licensee is asked — almost expected — to give a statement.  During a hearing, with a criminal case pending, a licensee sometimes must strategically choose or not to testify.  This issue was recently addressed in the case of Blair Anthony Hawkins v. Bureau of Prof’l & Occupational Affairs, 2017 Pa. Commw. Unpub. LEXIS 112 (Commw. Ct. Feb. 16, 2017).

In that matter, after the Department presented its evidence, Hawkins argued that the Board denied him a full and fair hearing when it failed to continue the hearing until after the resolution of the criminal case, thus resulting in Hawkins’ decision to invoke his Fifth Amendment right against self-incrimination before the Board.  However, Hawkins was not forced to testify.  Hawkins invoked his 5th Amendment Rights against self-incrimination.

A hearing was held on January 8, 2016, at which Petitioner renewed his request for a continuance until after the criminal charges were resolved. The Board denied the continuance request. Therefore, Hawkins asserted his Fifth Amendment right against self-incrimination and did not answer any questions.  This looks horrible in a hearing.

Prior to the hearing, the parties exchanged pre-hearing statements, identified witnesses and exhibits, and participated in a pre-hearing conferences. On the day before the hearing, Petitioner requested a continuance via email, until Hawkins’ criminal charges were resolved. The Department opposed the continuance request. The Board denied the continuance, noting that Petitioner had previously been granted a continuance, had indicated that he was available for the hearing on January 8, 2016, had participated in a pre-hearing conference a few days prior, and had failed to identify an emergent reason for requiring a continuance.

Initially, the continuance request was handled improperly.  Either at a pre-hearing conference, or in a separate motion to continue the hearing, counsel for Hawkins should have sought a continuance much sooner, with greater vigor.  Counsel, not Hawkins, put his client in the trap the licensee board prosecutors set.  The Board prosecutor set the trap, showed the trap to counsel, and counsel messed up the case.  The matter should have been continued way before the hearing until after the criminal case had resolved.

In reviewing the choice to testify or not, the Board looked to prior case law.  In Herberg v. Commonwealth, State Board of Medical Education & Licensure, 42 A.2d 411, 412 (Pa. Cmwlth. 1982), a physician’s medical license was revoked and the physician argued that during the hearing before the board, his rights pursuant to the Fourteenth and Fifth Amendments of the United States Constitution were violated. The physician invoked his Fifth Amendment right against self-incrimination so that his testimony before the board could not be used in a later criminal proceeding.  Commonwealth Court determined that:

‘[T]here [is nothing] inherently repugnant to due process in requiring the doctor to choose between giving testimony at the disciplinary hearing, a course that may help the criminal prosecutors, and keeping silent, a course that may lead to the loss of his license.'[A]bsent a finding that a physician was forced to testify against himself, a medical disciplinary board was not constitutionally required to stay its proceedings until the criminal prosecutions against the doctor were over.

In Hawkins, the licensee was called as a witness, chose not to testify, and was not forced to testify. Thus, Hawkins’ Fifth Amendment right against self-incrimination was not violated because the Board honored his choice not to testify. Further, due process rights are not violated simply because a decision on whether to testify is arduous. See PSI Upsilon v. University of Pennsylvania, 591 A.2d 755, 760 (Pa. Super. 1991). Hawkins made what was assuredly a hard decision not to testify; however, making this decision did not result in a violation of his due process rights. See Herberg, 42 A.2d at 413. The Board did not err or abuse its discretion when it held Hawkins’ disciplinary hearing prior to his criminal proceeding, thus making Hawkins choose between testifying or asserting his privilege against self-incrimination.

Call me to talk about your case, investigators wanting you to give a pre-complaint statement, and how to handle your up coming hearing.

 

Pennsylvania’s DUI Statute and Warrantless Blood Draws — No Proof of Intoxication

Several months ago I wrote about the June 23, 2016, the United States Supreme Court decision in three companion cases — Birchfield v. N. Dakota, 136 S.Ct. 2160, 2173, 2185, 195 L. Ed. 2d 560 (2016).  Pennsylvania’s appellate courts have finally reviewed and decided a case addressing, in the context of a warrantless blood draw in a DUI, what is consent in Pennsylvania.

A review of the DUI informed consent issue is a good place to start.  Consistent with 75 Pa. C.S.A. §1547(c) the Pennsylvania’s Motor Vehicle code imposes evidentiary admissibility standards for blood tests consensually drawn without a warrant. Pennsylvania’s Motor Vehicle code addressing driving under the influence (“DUI”) of alcohol or controlled substances, 75 Pa. C.S.A. § 3802 (b)(c) & (d) each contain as an essential element of the criminal offense a defendant’s blood alcohol concentration level.

The grading provisions of the Pennsylvania Motor Vehicle code, 75 Pa. C.S.A. §3803(d), as they relate to DUI charges, identify in subsections 1 through 4 that any individual who is under investigation for violating 75 Pa.C.S.A. § 3802, et seq., (accusing an individual of operating a motor vehicle under the influence of drugs or alcohol such that they are incapable of safely driving) and refuses to voluntary submit to a warrant-less blood test, is to receive enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.

Birchfield  focuses on the legality of motorists lawfully arrested for drunk driving subject to enhanced criminal penalties for refusing to allow a warrantless blood draw to measure the level of alcohol in their blood stream. The Supreme Court rejects North Dakota’s asserted need to obtain blood alcohol readings absent a warrant in light of the fact that its motor vehicle code implied consent laws, similarly to Pennsylvania’s, provide for separate and enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.

Birchfield approves of implied consent laws such as 75 Pa.C.S.A. § 1547 that impose civil penalties and evidentiary consequences on motorists who refused to comply breath tests. However, Birchfield then rules it is unconstitutional for a state to insist upon an intrusive blood test and then to impose criminal penalties on those who refuse to submit to those same tests. “There must be a limit to the consequences to which motorists may have deemed to consent by virtue of a decision to drive on a public road.”

Birchfield makes clear the Pennsylvania’s Motor Vehicle Law, 75 Pa.C.S.A. §3802, et. seq., is unconstitutional because it provides for enhanced criminal penalties of those accused of operating a motor vehicle under the influence of drugs or alcohol when, during a search incident to a lawful arrest, the defendant who refuses to submit a warrantless blood draw pursuant to 75 Pa. C.S.A. §1547 and/or § 3802 is subject to enhanced criminal penalties.

In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances. The standard for measuring the scope of a person’s consent is based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent. Such evaluation includes an objective examination of the maturity, sophistication and mental or emotional state of the defendant. Gauging the scope of a defendant’s consent is an inherent and necessary part of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the product of coercion, deceit, or misrepresentation.  Commonwealth v. Smith, 621 Pa. 218, 77 A.3d 562, 573 (Pa. 2013)

The case of Commonwealth v. Evans, 2016 PA Super 293  (December 20, 2016), is the first major Pennsylvania Appellate Court decision discussing Pennsylvania’s DUI statute, the Implied Consent Law (“O’Connell Warnings”), and the prosecutor’s burden of proof at the suppression hearing.  Evans holds that a defendant does not have to prove they gave consent only based upon the threat of a more severe criminal penalty (jail and further license suspension).  Rather, the statute itself establishes this burden and the Prosecutor must rebut that legal presumption.  Because there is no ability to rebut a presumption of illegitimate consent when threatened with enhanced jail penalties, all motions to suppress must be granted.

Call me to discuss your DUI, the warrantless search of your blood, whether you consented or not, and the professional license issues as a result of the DUI.

Professional License Indefinite Suspensions for Missing the Mental and Physical Evaluation

Board authority to  compel a mental and physical examination(“MPE”)  is pursuant to 63 P. S. § 2205(D)(1).  The purpose of the evaluation is to determine whether, under 63 P. S. 224(a)(2) for nurses, a licensee is unable to practice their profession with reasonable skill and safety by reason of mental or physical illness or condition or psychological or physiological dependence on alcohol, hallucinogenic on narcotic or other drugs that impair judgment and coordination.  Similar impairment evaluation provisions are contained in each of the twenty six different Pennsylvania licensing schemes.

A formal board order compelling attendance always accompanies these Petitions.  The Board signs the order to compel both attendance and compliance with document production requirements.  Typically, these petitions are filed, licensees show up at the expert’s office for the examination compliant with the terms and conditions of the MPE order.  It is the unique case where a licensee does not show up and their license is summarily suspended.

License suspension is based upon the Pennsylvania Code provisions that states,  if a licensee fails to attend the MPE,  the allegations of impairment are deemed true.  The admissions of fact and law allow the Board to conclude impairment and formal suspension is ordered.   License reinstatement after this step requires attending a PHMP expert evaluation (at the licensee’s expense) and complying with all other aspects of the suspension order.
Why or how would a licensee not go to the Mental and Physical Evaluation?  Failure to maintain an up-to-date address with one’s Pennsylvania licensing board, resulting in missed notices is the first way. Secondly, thinking these appointments can be unilaterally changed or failing to properly communicate scheduling conflicts create huge problems.  Minor inconveniences though do not warrant not attending the procedure.  The last way is the simplest; a licensee simply does not attend the evaluation for fear of the result.
Case law discussing these provisions specifically requires proper Board notification of the MPE and suspension to the licensee’s address of record.  The address on record is the address to which the Board is required to provide notice of a disciplinary action in order to honor its constitutional due process obligations.  The Board only needs to provide proof of service via regular and certified mail.  It is licensees burden to attend or reschedule the evaluation.
Why do licensees have to go to these evaluations?  Section 224(a)(2) of the Nursing law, for example, is the standard provision in every regulatory board scheme.  Board prosecutors receive information suggesting an impairment.   In seeking licensure, licensees agree to be regulated by the State.  Licensees agree to honor the provisions of Pennsylvania code and case law interpreting the code.

The MPE is just such a provision in an over arching regulatory scheme the Commonwealth has erected to protect its citizens from errant and high licensees (realtors, doctors, pharmacists, nurses and the like).  My blogs deal with my role in preparing each licensee for the MPE. However, I cannot accept mail for each licensee. Once we are retained, I am able to re-scheduled the MPE with consent of either the doctor, Board counsel or prosecuting counsel.  This allows me time to assist the licensee organize their documents and prepare for this expert examination.  I cannot receive the mail.

The consequence on the licensee of not attending the evaluation is significant. While not immediate, eventual license suspension for failure to honor a Board order will occur. Reinstatement will only take place upon attendance of that MPE.  Additional requirements include providing a criminal background check, proof of compliance with all continuing education burdens, proof of no practice during the term of suspension, and payment of investigatory costs.
As well, included in the typical MPE order is the Board paying for the evaluation.  Once a licensee refuses or fails to attend the MPE, the MPE expert evaluation expense must be borne by the licensees.   Please call me to discuss your recent mail compelling you to attend a mental and physical examination.or suspending your license for missing one.

Client References — An Recent Email

Blogs….. what is the purpose?  To inform the public of the legal issues in my practice area practice;  to have potential clients become informed consumers of the legal issues which are going to affect their licenses; to confirm I am the correct attorney to handle their matter.  To that end, how does one know I am the correct attorney.  How can I advise  potential clients that I am the appropriate choice to handle their case?  Client reviews.
That is why I embed AVVO client review buttons on my web site. Click the buttons and read my reviews.  All potential clients do!   However, once in a while, a former client writes me an email updating me about how good their life currently is after I assisted them in avoiding disciplinary issues with their license.  Below is just such an email that I wanted to share.
You may or may not remember me, but you helped me out with my case in dealing with PNAP in 2014 when I was attending anesthesia school. I was just thinking about the whole incident, what a nightmare it was, and how fortunate I was to have found your help. Because of you, I have a fantastic career and a bright future. I read your blog posts and I truly feel crushed for those people going through that special kind of hell that PNAP and the PHMP can bring into a person’s life. Keep doing what you are doing. You’re breathing life back into a lot of people who surely thought their lives were over.
I am attaching a picture of our daughter. She is the best part of my life now. I cant imagine all the time I would be missing out on with her if I had to attend meetings and drug tests. She also says “thank you.”
Thank you for such a wonderful email.  It is a pleasure to wake up on a weekend and check my emails (as all my clients know I daily do at 6 am), sifting through the spam, solicitations, and legal emails, and come across this email.  I remember every former client– all are very appreciative — some, especially so.  It is my pleasure to help every client.  I understand the importance of my legal work and the impact on everyone who makes the momentous decision to choose my services.  It is with this respect and understanding that I handle every case.  Thank you for letting me be in your life and help you!!!

A Refresher on Unprofessional Conduct in Pennsylvania as it Relates to Convictions for Assault

In preparation for every hearing, I review case law discussing the relevant legal issues.  One such recurrent topic is unprofessional or immoral conduct.  This is the vague Pandora’s box of behavior upon with both license revocation and denial may be based.  What is immoral conduct as it relates to physical fighting and the crime of assault.

One clear case involves a licensed social worker who pleaded guilty to two counts of simple assault, which is a 2nd degree misdemeanor.  The criminal charges arose from the licensee assaulting a former client and the client’s husband. The criminal complaint alleged that counselor had engaged in an affair with the former client and that upon traveling to the former client’s home, she attacked K and T.  The conduct resulted in convictions, for which the Board issued an Immediate Temporary Suspension order (ITS).  This is immoral conduct.  Do not go and assault a former client for anything, let alone braking of a relationship and returning to their spouse.

Another case is Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 135 Pa. Commw. 62, 578 A.2d 1355 (Pa. Cmwlth. 1990), where the Court defines crimes of moral turpitude as “anything done knowingly contrary to justice or good morals.” Foose, 578 A.2d at 1357.  Assault convictions fall within this definition because assaults “are inconsistent with the definition of good moral character [and they] involve a reprehensible state of mind.” “The reprehensible state of mind” at issue with the misdemeanors of which any licensee is convicted “is the knowing or reckless attempt to cause or causing bodily injury to another, or engaging in conduct which constitutes a physical menace intended to put another in fear of serious bodily injury.” A conviction for 1st or 2nd degree assault means you intentionally inflicted bodily injury upon that person.  Your license could be assaulted by the board for such conduct…..don’t let them do it so don’t you do it.

Sometimes a Board will distinguish third-degree misdemeanor simple assault, which involves conduct that may be lacking in a “reprehensible state of mind” that could arise in a situation such as “a fight or flight scuffle by mutual consent.” However, other Boards have been persuaded that intentional appearance at a victim’s home to conduct an assault constitutes a crime of moral turpitude. It is a reasonable interpretation and the appellate courts have concluded such.

In another case involving a teacher and his wife, the governing regulations provided that the only relevant inquiry when questioning whether a crime is one of moral turpitude relates to the particular elements of the crime committed, not to the facts underlying the particular commission of the crime. The regulatory provision at issue, 22 Pa. Code § 237.9(a), provided guidance, defining “moral turpitude” as including “reckless conduct causing bodily injury to another.” Importantly, many professional licensing regulations do not include this specific inclusive language.

Although the definition in the teacher regulations also included “conduct done knowingly contrary to justice, honesty or good morals,” some courts have opined that the term “moral turpitude” as defined in the regulation, as well as the definitions arising in other statutory contexts requires a reprehensible state of mind or mens rea. Thus, it may be an “act of baseness, vileness, or depravity, contrary to the accepted customary rule of right and duty between two human beings.” Such an act requires at least knowledge of private impropriety or the potential for social disruption. Also an act of moral turpitude may consist of intentional, knowing or reckless conduct.  A teacher, hitting his spouse, has been interpreted as depraved conduct warranting licensing revocation or discipline.

In sum, do not assault your partner, your friends, your current or former clients, and especially, strangers.  Call me to discuss your case and any criminal conviction.

 

 

 

 

Pennsylvania’s Stregthening Disciplinary Enforcement Environment

My law practice focuses on defending professional licensee disciplinary actions based upon criminal convictions, professional competence, and/or drug and alcohol addiction and professional impairment. I write blogs about Pennsylvania professional licensing disciplinary actions.  Recently, I reviewed all of Pennsylvania’s licensing board disciplinary actions for October and November of 2016. My case load is consistent with the disciplinary orders I reviewed; the cases reflect a stiffening enforcement environment for each of Pennsylvania’s 29 licensing boards.

In November 2016 Bureau of Professional and Occupational Affairs’ 29 professional licensing boards entered 135 different disciplinary orders.  Board orders range from accountancy, real estate, architecture, chiropractic, massage therapy, nursing, the numerous medical fields, social workers, to veterinary medicine. Of the 135 actions, 41 or 30% of the prosecutions were against non-Pennsylvania practicing licensees. Of the remaining 94 actions (70%), 30 cases or 31% were taken against licensees in Philadelphia and its five surrounding counties. The October 2016 statistics are about the same.

The consistency in the prosecutions is staggering. Many licensees are not represented by counsel. Many orders or settlements include significant civil penalty fines. In the dental profession, there is an increase in petitions for immediate temporary suspensions, pending hearings, on the grounds that the licensee’s practice constitute an immediate and clear danger to the public health and safety. Throughout the medical professions, including pharmacy, numerous disciplinary actions are based upon misdemeanor or felony Drug Act convictions.  Accountancy and real estate board prosecutions center on fraud issues.  The statistics suggest one main point; over 60 percent of cases are from the Philadelphia area and out of state but all of which prosecutions are based upon criminal convictions or drug impairment issues.  These types of disciplinary cases can be fought and penalties reduced.  Many licensees do not think so and either do not have any counsel or they hire the wrong, incompetent counsel.  This is a mistake.

A significant aspect of my practice is reflected in the disciplinary orders. Whether a medical doctor, osteopathic doctor, or nurse, almost one half of disciplinary actions are based upon allegations of inability to practice a profession with reasonable skill and safety to patients by reasons of a mental or physical illness or condition stemming from a dependence upon alcohol or drugs that impairs judgment or coordination. Fighting these cases and contesting any allegation of drug or alcohol impairment is mandatory to keep your license.  DO NOT TAKE THESE ALLEGATIONS LIGHTLY.  DO NOT GO TO THESE ASSESSMENTS WITH OUT AN ATTORNEY.  See my other blogs on this issue.  The orders of discipline clearly reflect licensees incompetently fighting their case without counsel.  I have written extensive blogs on the importance of having an attorney.

A significant percentage of enforcement actions are based upon in or out-of state guilty pleas to either misdemeanors or felonies under the Drug Act or felonies (typically sexual assault) involved in the professional practice. The Boards are collaterally prosecuting every licensee convicted of any offense involving drugs, the violations of norms of practice of that specific profession, or crimes of moral turpitude. The criminal offense, whether drugs, DUI, or a practice related sexual offense does not have to occur in Pennsylvania. Having the right criminal attorney fighting the underlying criminal prosecution is paramount to avoiding collateral licensing prosecution.  I handle all of these criminal cases in Pennsylvania and New Jersey.  Call me to discuss the underlying criminal charges.

Out-of-state licensee’s disciplinary actions reveal a pattern of significantly harsher disciplinary outcomes. Apparently many of these licensees’ indefinite or automatic suspensions are based upon decisions to not contest the Pennsylvania disciplinary action or licensees fighting their case without counsel. Either choice is the worst possible way to address a Pennsylvania based disciplinary action. Every out-of-state licensee should fight each and every disciplinary action.

Please call me to discuss the heightened enforcement environment in Pennsylvania and your pending disciplinary action. Do not attempt to handle these cases on your own. Pennsylvania’s licensing board prosecuting attorneys are much more familiar with appropriate potential negotiating positions then the licensee. The number of professionals I represent before the various boards, and my current pending case load with the same prosecutor on your case, uniquely positions me to fight your case.

Pennsylvania Drug Act Charges — Doctors and Nurses — Reputation

My last blog focused on physicians’ criminal Drug Act conduct and reporting responsibilities to the Medical Board.  Whether a physician or professional nurse, the typical triggering event requiring reporting to a professional license board is a charge or conviction for violating Pennsylvania’s Drug Act.  Aside from license impacts, the evidentiary important of such a charge or conviction is profound.

There is a string of cases in Pennsylvania that identify a Drug Act offense as a crime of moral turpitude and crimen falsii.  What are these characterizations and import on your license defense shall be addressed in this blog.

The esteemed Leonard Packel and Anne Poulin, wrote the book Pennsylvania Evidence § 609 (1987 and Supp. 1994).   At the time of publication, the book did not contain drug violations in either category.  In Commonwealth v. Candia, 286 Pa.Super. 282, 428 A.2d 993 (1981), Pa Superior Court stated that Drug Act offenses were not crimen falsi.

There are several federal decisions, one in the Second Circuit Court of Appeals, United States v. Hayes, 553 F.2d 824 (1977), where the court held that importation of cocaine was not clearly crimen falsi, but could be if the particular facts demonstrated that the importation involved false written or oral statements on customs forms.  That court weighed the effect on credibility of various drug violations, stating smuggling “ranks relatively high on the scale of veracity-related crimes, but that mere narcotics possession would be less highly ranked on that same scale.

That court stated impeachment use of a conviction involving dishonesty or false statement refers to allegations particularly focusing on credibility issues, such as those for ‘perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense.  Each of these cases involves the commission of acts which involve a basic intent element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.

Pennsylvania has determined a similar list of crimes to constitute crimen falsi.  Included in this list, a recent Superior court decision holds, is writing prescriptions for a controlled substance to oneself, knowing one has a chemical dependency problem. The crime itself involves making a false statement because it necessarily involves the falsification of a prescription by a practitioner representing that it is not for a person who is chemically dependent.  As such, Drug Act prescription violations constitute crimes of crimen falsi and, thus, a crime of moral turpitude.

The import of these cases can not be understated.  The Board will look at any Drug Act conviction as a crime of moral turpitude because it relates in many different ways to the securing, utilizing, or possessing an illegal controlled substance.  Whether such is in the course of the practice or in one private life, a Drug Act violation therefore also becomes a “conduct unbecoming” violation.

Separate and aside from these issues, are the mandatory suspensions of any Drug Act conviction.  Call me to discuss your case.

The Drug Act — Pa Doctors’ Reporting Responsibilities for Arrest, Conviction, and Automatic Suspensions

Every day I read appellate cases that review disciplinary decisions of Pennsylvania’s licensing boards. A recent case discusses physicians’ unique arrest and conviction reporting responsibility to the State Board of Medicine.  Physician’s reporting of arrests versus convictions depends on the crime involved.

Pennsylvania’s MCare’s law regarding malpractice insurance coverage, 40 P.S. § 1303. 903(4), identifies physician’s reporting responsibilities if a professional liability claim is asserted them, disciplinary action taken against them from another jurisdiction, criminal sentencing for any case, and the arrest of a physician in four very limited classes of crimes. These offenses are:

  • following offenses in this Commonwealth or another state:
    • (i)  18 Pa.C.S. Ch. 25 (relating to criminal homicide);
    • (iii)  18 Pa.C.S. Ch. 31 (relating to sexual offenses).
    • (iv)  A violation of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act.
Physicians’ limited reporting responsibilities means arrests for following offenses does not trigger reporting to the state: domestic violence offenses, DUI’s offenses, theft offenses, or a string of federal related non-drug criminal arrest offenses.   Physicians do have to report arrests alleging a sex offense, homicide, aggravated assault, and a violation under the Drug Act.
Understanding what offenses are Drug Act offenses, not just possession or selling drugs, under The Act that are important.  Drug Act charges include patient record keeping, charting issues, and properly recording and dispensing medications.  Section 780-111 of the Drug Act focuses  on professional prescription, administration, and dispensing of drugs.  Here, the Act states:
  • (a)  Except when dispensed or administered directly to the patient by a practitioner or his authorized agent, other than a pharmacist, to an ultimate user, no controlled substance in Schedule II, may be dispensed without the written prescription of a practitioner, except in emergency situations, as prescribed by the secretary by regulation. No prescription for a controlled substance in Schedule II may be refilled.
  • (b)  Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in Schedule III or IV, may be dispensed without a written or oral prescription. Such prescriptions shall not be filled or refilled more than six months after the date thereof or be refilled more than five times after the date of the prescription unless renewed by the practitioner.
  • (c)  No controlled substance in Schedule V may be distributed or dispensed for other than a medicinal purpose.
  • (d)  A practitioner may prescribe, administer, or dispense a controlled substance or other drug or device only (i) in good faith in the course of his professional practice, (ii) within the scope of the patient relationship, and (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession. A practitioner may cause a controlled substance, other drug or device or drug to be administered by a professional assistant under his direction and supervision.
  • (d.1)  A practitioner shall not prescribe, administer or dispense any anabolic steroid for the purpose of enhancing a person’s performance in an exercise, sport or game. A practitioner may not prescribe, administer or dispense any anabolic steroid for the purpose of hormonal manipulation intended to increase muscle mass, strength or weight except when medically necessary.
  • (e)  A veterinarian may prescribe, administer, or dispense a controlled substance, other drug or device only (i) in good faith in the course of his professional practice, and (ii) not for use by a human being. He may cause a controlled substance, other drug or device to be administered by a professional assistant under his direction and supervision.
  • (f)  Any drug or device dispensed by a pharmacist pursuant to a prescription order shall bear a label showing (i) the name and address of the pharmacy and any registration number obtained pursuant to any applicable Federal laws, (ii) the name of the patient, or, if the patient is an animal, the name of the owner of the animal and the species of the animal, (iii) the name of the practitioner by whom the prescription order was written, and (iv) the serial number and date of filing of the prescription order. In addition, the following statement shall be required on the label of a controlled substance: “Transfer of this drug to anyone other than the patient for whom it was prescribed is illegal.”

§ 780-112 focuses on records of distribution of controlled substances

  • (a)  Every person who sells or otherwise distributes controlled substances, shall keep records of all purchases or other receipt and sales or other distribution of such substances for two years from the date of purchase or sale. Such records shall include the name and address of the person from whom purchased or otherwise received or to whom sold or otherwise distributed, the date of purchase or receipt or sale or distribution, and the quantity involved: Provided, however, That this subsection shall not apply to a practitioner who dispenses controlled substances to his patients, unless the practitioner is regularly engaged in charging his patients, whether separately or together with charges for other professional services, for substances so dispensed.
  • (b)  Every practitioner licensed by law to administer, dispense or distribute controlled substances shall keep a record of all such substances administered, dispensed or distributed by him, showing the amount administered, dispensed or distributed, the date, the name and address of the patient, and in the case of a veterinarian, the name and address of the owners of the animal to whom such substances are dispensed or distributed. Such record shall be kept for two years from the date of administering, dispensing or distributing such substance and shall be open for inspection by the proper authorities.
  • (c)  Persons registered or licensed to manufacture or distribute or dispense a controlled substance, other drug or device under this act shall keep records and maintain inventories in conformity with the record-keeping, order form and inventory requirements of Federal law and with any additional regulations the secretary issues. Controlled substances in Schedules I and II shall be distributed by a registrant to another registrant only pursuant to an order form.
Violations of either of these two subsections and their itemized list, by either doctors or other health care nurses is dealt with under section § 780-123, revocation of licenses of practitioners.
  • (a)  Any license or registration heretofore issued to any practitioner may either be revoked or suspended by the proper officers or boards having power to issue licenses or registration to any of the foregoing, upon proof that the licensee or registrant is a drug dependent person on the use of any controlled substance, after giving such licensee or registrant reasonable notice and opportunity to be heard.
  • (b)  The appropriate licensing boards in the Department of State are hereby authorized to revoke or suspend the registration or license of any practitioner when such person has pleaded guilty or nolo contendere or has been convicted of a felony under this act or any similar State or Federal law. Before any such revocation or suspension, the licensee or registrant shall be given a hearing before the appropriate board. At such hearing the accused may be represented by counsel and shall be entitled to compulsory attendance of witnesses.
  • (c)  The appropriate licensing boards in the Department of State shall automatically suspend, for a period not to exceed one year, the registration or license of any practitioner when the person has pleaded guilty or nolo contendere or has been convicted of a misdemeanor under this act. The district attorney of each county shall immediately notify the appropriate State licensing board of practitioners subject to the provisions of this section. However, the provisions of such automatic suspension may be stayed by the appropriate State licensing board in those cases where a practitioner has violated the provisions of this act only for the personal use of controlled substances by the practitioner and the practitioner participates in the impaired professional program approved by the appropriate State licensing board for a period of between three and five years, as directed by the appropriate licensing board. If the practitioner fails to comply in all respects with the standards of such a program, the appropriate licensing board shall immediately vacate the stay of the enforcement of the suspension provided for herein. Automatic suspension shall not be stayed pending any appeal of a conviction. Restoration of such license shall be made as in the case of a suspension of license.

35 Pa. Stat. Ann. § 780-123

Case law addressing practitioner’s objections to the emergent and disparate impact Drug Act convictions and their automatic suspensions have on doctors is very clear.   Board discretion and legislative prerogative regarding public safety out weight a physician’s property right in their license.  “Licensed medical practitioners’ unique access to controlled drugs and a physician’s appropriation of this access for illegal purposes presents a danger to the Commonwealth, for which the General Assembly has legitimately and rationally adopted a separate policing device.”  Call me to discuss your case.

PHMP — Pennsylvania — How It Really Works

Here is an email I received this week

RN w a PA license started pnap program 4 yrs ago and they will not let me out if the program. I fulfilled all the requirements and I’m over the amount of time stated in my contract. Every months they come up w something new and threaten to add another year to three. They also threaten if I contact a lawyer I can kiss my license goodbye and I truly believe they have the power to do anything at this point.

They treat me as if I have a substance abuse and test me relentlessly and at one point bc of ice n snow I missed testing they cut my hair and did hair analysis which was negative. In four years I have never had a positive test. And that’s w 1,2,3,4 times testing. Month. I was supposed to be released in November 2016 I missed a call in the day I was leaving for the beach. Packing for 6 kids 10yo and younger for a week distracted me a bit. That is when they threatened to add 3. More yrs for noncompliance. I’m already over my time! Yesterday I could not make a test bc 3 of my kids were vomiting and Had high fevers I could not drag them out w out torturing them. So again I’m getting threatened w more time ands or never seeing my license again. I went I to this program thinking they were here to help me. Obviously they are here for the $$ and to make near impossible to complete the program. I’m stuck. They have taken all the money I have. No I’m finding out it’s not the pnap making the calls it’s the testing company.

This is email presents legal issues about which I receive calls every week.  This email is reflective of the PHMP and PNAP, how the treat their enrollees in the program.  Read this email again before signing any documents and call me.

More importantly, understand the exploding opiate addiction pain medication problem our cities, states, rural areas, and country is facing.  Stepped up offering and then enforcement of the impair professional program, and all of its terms and conditions, is reflected in the statistics a recent news article discussed. Video of ABC News Investigation

However, the statistics cited int he article,73% of all disciplinary cases are for drug and impairment issues, only reflects the stepped up threats, coercion, and intimidation the program administrators are using in convincing people to go into the program that some do not really need.  Read my many other blogs discussing how single offense DUIs, Public Drunkenness, and other minor infraction are brought tot he Board’s attention, resulting in PHMP and PNAP “Letters of Concern” being sent to professionals and scaring them into the program.

Call me to discuss your case.

 

 

 

 

Expanded Psychology Board Disciplinary Authority

On June 23, 2016 the General assembly approved act 2016–53. This is a new provision in the the Psychology Board Act.  It became effective August 23, 2016.  This an amendment to the Psychology Board’s authority in disciplining it’s licensees. The specific section in bold states:

(b) When the board finds that the license or application for license of any person may be refused, revoked, restricted or suspended under the terms of subsection (a), the board may:

(1) Deny the application for a license.

(2) Administer a public reprimand.

(3) Revoke, suspend, limit or otherwise restrict a license as determined by the board.

(4) Require a licensee to submit to the care, counseling or treatment of a physician or a psychologist designated by the board.

(5) Suspend enforcement of its findings thereof and place a licensee on probation with the right to vacate the probationary order for noncompliance.

(6) Restore a suspended license to practice psychology and impose any disciplinary or corrective measure which it might originally have imposed.

(7) Take other action as the board in the board’s discretion considers proper, including precluding a suspended licensee from engaging in counseling or any other form of mental health practice.

The import of the new (b)(7) provision cannot be under stated. The legislature has given the Board authority to take “other action” within the “Board’s discretion it considers proper”. This is just about anything.  The case law discussing licensing boards authority to discipline their licensees is clear.

Appellate review of a discretionary Board action is limited to determining whether constitutional rights have been violated, an error of law committed, or necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704; Cassella v. Pennsylvania Board of Medicine, Bureau of Professions and Occupations, 119 Pa. Commonwealth Ct. 394, 547 A.2d 506 (1988); DePanfilis v. State Board of Pharmacy, 121 Pa. Commonwealth Ct. 526, 551 A.2d 344 (1988). The State Board of Nursing is the ultimate fact finder and may accept or reject the testimony of any witness in whole or in part.

The proper review of an agency’s action, assuming that it is not defective under the self-explanatory requirements of § 704 of the Administrative Agency Law, 2 Pa. Cons. Stat. § 704, is not whether its order was reasonable, but whether it was made in accordance with law, i.e., whether it was made in bad faith, and whether it was fraudulent or capricious. A reviewing court may interfere in an agency decision only when there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions. Slawek v. Commonwealth, State Bd. of Med. Educ. & Licensure, 526 Pa. 316, 318, 586 A.2d 362, 363 (1991).

Where a full and complete record is made of the proceedings before the State Board of Nursing, a reviewing court must affirm the adjudication unless it is in violation of the constitutional rights of the appellant or not in accordance with the law, the procedural provisions of the local agency law are violated, or a finding of fact of the State Board of Nursing necessary to support its adjudication is not supported by substantial evidence. Section 754 of the Administrative Agency Law, 2 Pa. C.S. § 754. The emphasis here is that is a full and complete record is a necessity.

Substantial evidence means that the evidence required to support the finding of an administrative agency must be “such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.”  Civil Service Com. V. Poles, 132 Pa. Commw. 593, 573 A.2d 1169, 1172 (1990); Gallagher v. Philadelphia State Board of Pharmacy, 16 Pa. Commw. 279, 330 A.2d 287, 289 (Pa. Commw. Ct. 1974).

It is imperative that counsel is present at any hearing to insure the trial evidence objections are properly set forth int he record.  In many cases, Board discretionary action can only be limited by insuring the evidence at the hearing is minimized against the licensee.  Or on Appeal, reviewing the record, to insure the Board decision is made in accordance with the facts presented at the hearing. Any decision based on facts outside of the record is not proper. Please call to discuss you psychology license disciplinary issues.

 

 

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