December 20, 2012 Megan’s Law Reclassification Issues

The typical questions I am receiving in these Megan’s Law reclassification cases are “I have been registering for 9 years, with one year left and I now am told effective December 20, 2012 I will have to register for a lifetime. Can they do this? Or, I am on probation and I do not have register. The Pa. State Police are telling me I now have to register. Can they do that?

The answer under both scenarios is YES.

The cases have held the following: Megan’s Law (Megan’s Law I), was first enacted in Pennsylvania on October 24, 1995. Subsequently, the Law was reenacted and amended on May 10, 2000, effective July 9, 2000 (Megan’s Law II). Megan’s Law II has been amended several times, most recently on December 20, 2011, to be effective in one year. In the latest amendments, Megan’s Law III, the length of registration has been altered for anyone still under supervision or currently registering under the Act.

The new registration provisions are under 42 Pa.C.S. § 9799.14 and 42 Pa.C.S. § 9799.15. There are now three tiers and multiple years of registration.

Thomas v. Pa. Bd. of Prob. & Parole Secy. Kimberly Barkley, 2012 Pa. Commw. Unpub. LEXIS 892, 1-3 (Pa. Commw. Ct. 2012), is a case that discusses the legality of the legislature reclassifying probationers or registrants. Following Comm v. Benner, 2004 PA Super 243, 853 A.2d 1068 (Pa. Super. 2004), the court said reclassification is OK and there is nothing illegal about it.

In Benner, neither Megan’s Law I nor Megan’s Law II was effective at the time of his rape conviction. However, Megan’s Law II was in effect in 2009 when Benner was paroled. Section 9793 of Megan’s Law I, which required registration of certain offenders for ten years, including those individuals convicted of rape under Section 3121 of the Crimes Code, as amended, 18 Pa. C.S. § 3121, was repealed. Section 9795.1 of Megan’s Law II, enacted on that same date, changed the registration requirement for those individuals convicted of rape from the previous ten-year registration requirement to a lifetime registration requirement. 42 Pa. C.S. § 9795.1(b)(2).

Benner similarly argued that he could only be subject to the registration requirements in Megan’s Law I, and not Megan’s Law II, which was not in effect when he pled guilty and was sentenced. The Superior Court found that the registration provisions of Megan’s Law did not constitute criminal punishment, but were a collateral consequence of the individual’s conviction. The court noted that “while a defendant may be subject to conviction only under statutes in effect on the date of his acts, and sentence configuration under the Guidelines in effect on that same date, the application of the registration requirements under Megan’s Law is not so limited.” The court therefore determined that “the collateral effect of current legislation may be imposed on the defendant so long as he remains in the custody of correctional authorities to discharge any part of his sentence for the sex offense.” Accordingly, because defendant Benner was still serving his sentence for a sex offense after Megan’s Law II was enacted, he remained “subject to the collateral effect of its application [i.e., lifetime registration].” Thompson argued the same issue and also lost.

The issues of whether the reclassification registration requirements under Megan’s Law constitute ex post facto punishment has already been roundly rejected by the courts in, e.g., Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008) (registration is merely collateral consequence of a conviction of a Megan’s Law predicate offense and not punitive in nature); and Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999) (registration is remedial in nature, not punitive). Thomas v. Pa. Bd. of Prob. & Parole Secy. Kimberly Barkley, 2012 Pa. Commw. Unpub. LEXIS 892, 8-9 (Pa. Commw. Ct. 2012)

More importantly, the courts have held that while it is clear that under Megan’s Law II the inconvenience of verifying one’s residence has been extended from ten years to the remainder of one’s life for certain offenders, the courts cannot discern how the extension of this time period effectuates such a change in the registration requirements that the effects of the provisions are so harsh that they are now punitive. A registrant must still has to provide the same information in the same manner as set forth in Megan’s Law Iⅈ he is merely subject to the requirements for a longer period of time. Moreover, the requirement that a registrant provide information to law enforcement will not have a large impact on their life. An extension of time alone does not render the effects of the registration requirements so harsh as a matter of degree that they now may be characterized as punishment. Additionally, the court notes that: “a registration requirement is perhaps the least burdensome among the various modes of regulation a state may seek to impose. Commonwealth v. Mountain, 711 A.2d 473, 477 (Pa. Super. 1998), appeal denied, 561 Pa. 672, 749 A.2d 469 (2000) (quoting Commonwealth v. National Federation of the Blind, 18 Pa. Commw. 291, 335 A.2d 832, 835 (Pa. Cmwlth. 1975), aff’d at 471 Pa. 529, 370 A.2d 732 (1977)). Accordingly, the courts conclude that the effects of the registration provisions of Megan’s Law II are not so additionally burdensome as to constitute punishment, Commonwealth v. Fleming, 2002 PA Super 190, P17 (Pa. Super. Ct. 2002), and will so for the reclassification scheme under Megan’s Law III in effect after December 20, 2012.

Gross Immorality Behavior against Demented Patients Requires Nursing License Revocation

Today’s blog concerns inappropriate nurse behavior, attitude, and conduct towards our senior citizens which will become the basis for disciplinary action and/or license revocation. In Leanne Vitteck, LPN, Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Nursing, the appeals court was asked to determine whether the State Board of Nursing properly permanently revoked a nurse’s license for gross immorality.

Here nurse Vitteck was accused to have forcibly removed a sensor monitor from the hand of the 89-year-old nursing home resident who suffered from dementia. Vitteck was accused of stating that she was “sick of being a f*cking babysitter” to this victim. Vitteck was also accused of allegedly threatening to “break the hands” of 97-year-old resident suffering from dementia. On a third occasion the same nurse threatened a wheelchair bound resident with physical violence.

Vitteck was formally charged with failing to respect and consider patient’s rights to freedom from psychological and physical abuse, failing to safeguard patients from incompetent, abusive or illegal practices, and engaging in gross immorality and being unfit or incompetent by reasons of habit negligence. These allegations are in violation of Sections 16(a)(1), (2), (3) and (8) of the Practical Nurse Law and Sections 21.148(a)(2) and (3) of the Nursing Board’s regulations, 49 Pa.Code §21.148(a)(2) and (3), which set forth the standards of nursing care. At the administrative hearing, the prosecutors presented eyewitness testimony to each physical and verbal confrontation. The witnesses confirmed the factual allegations of both the Vitteck’s behavior. Importantly, the witnesses also confirmed the excessively difficult patient, each of which was suffering from severe dementia.

The Board found the facts were relevant and appropriate to revoked permanently Vitteck’s license because she was “unfit and incompetent to practice by reason of habits, negligence and other causes and that the nurse engaged in unprofessional conduct by failing to respected consider patients rights to freedom of psychological and physical abuse and to safeguard her own patients from abusive practices.” The Board concluded that rehabilitative efforts, such as retraining or suspension would be futile and that the nurse’s profanity, verbal threats, and physical conduct together, not independent of each other, warranted revocation.

The appeals court was very clear in its conclusion that the Board’s decision coupling the physical and verbal abuse together warranted suspension. The court indicated that profanity in and of itself, along with verbal inexcusable, discourteous, and reprehensible behavior is not typically enough to establish gross incompetence. The court cited several cases indicating that professionals who use profanity towards patients, clients, and other professionals does not support a showing of professional incompetence. “While it may be unwise, it does not rise to amount of incompetence which warrants revocation of a professional’s license.”

However, the Court went on to say the Board was correct that in the context of long-term nursing facilities LPNs must “[r]espect and consider, while providing nursing care, the individual’s right to freedom from psychological and physical abuse” and “[a]ct to safeguard the patient from incompetent, abusive or illegal practice of any individual.” 49 Pa.Code §21.148(a)(2) and (3). Verbal abuse is defined as any use of oral written word gesturing language that willfully includes disparaging and derogatory terms to residents or their families or within hearing distance, regardless of age ability to comprehend. The board determined that Vitteck failed to respect and consider, while providing nursing care, the individuals’ right to freedom from psychological and physical abuse.

Importantly, the court affirmed the Board’s holding that merely slapping the patient’s hand, where the patient is in danger falling out of bed cannot by itself constitute a violation of the standard of nursing care where such care is “calculated to promote the patient’s well-being.” However the board held that factually Vitteck was not engaging in any nursing conduct that was calculated to promote the patient’s well-being. The Board concluded that the records reflected profanity in conjunction with physical inpatients and forceful and aggressive disciplinary behavior in no way would promote the well-being of a patient suffering from dementia.

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