Holiday Financial Problems and your Professional License

Every year, the holiday time brings joy and financial difficulty. If you are a licensee with access to clients’ private residences, personal effects, and property, taking advantage of that access in an illegal way will cause you to lose your license. Stealing from infirm, disabled, or elderly clients to support a holiday life style, have gifts for your family, or pay utility bills is an unforgivable offense.

In these cases, typically video monitoring, family complaints, or client reporting triggers police investigations, criminal charges, and court appearances. Ultimately, you could be charged with theft by unlawful taking or disposition, a violation of 18 Pa. C.S. § 3921(a), and receiving stolen property, a violation of 18 Pa. C.S. § 3925(a).

Whether a licensee receives ARD (pre-trial probation without a verdict or guilty plea) or probation after a guilty plea, the licensing Boards take a hard look at these cases. It important to understand why. A similar disciplinary provision in each Board’s regulatory scheme, 63 P.S. §§ 666(a)(3), (4) and (8) , provides:
(a) The board may refuse, suspend or revoke any license in any case where the board shall find, that the licensee
….
(3) Has willfully or repeatedly violated any of the provisions of this act or of the regulations of the board;
(4) Has committed fraud or deceit in the practice of practical nursing or in securing his or her admission to such practice or to practical nursing school;
….
(8) Has been guilty of unprofessional conduct or such conduct as to require a suspension or revocation in the public interest ….
If you are not charged with a criminal offense, the Board investigators will investigate the cases, and the prosecutors may charge a violation of 49 Pa. Code § 21.148(b)(4), which provides: “a licensed practical nurse may not … [m]isappropriate equipment, materials, property, drugs or money from an employer or patient.”

Typically the hearing officer who conducts the hearing on behalf of the Board, which accepts the hearing officer’s case decision can still reject the agreed upon sanction. That can occur for any number of reasons. However, involving an attorney in these matters early and quickly is important.
In one case, a licensee admitted that even as a hard working nurse making good money, she was desperate to provide for her family, and did take the money from her patient in order to pay her electric bill. In this case, the Board found that the licensee, although admitted into ARD and the matter was expunged before her next reporting date, did violate the sacred trust that patients place in their caregivers, and that violation is exacerbated by Licensee’s actions which constituted elder abuse. The Board determined that the licensee took advantage of her elderly patient for her own financial gain.

Under professional licensing statutes such as the [Act], the Board is charged with the responsibility and authority to oversee the profession and to regulate and license professionals to protect the public health and safety. Barran v. State Bd. of Med., 670 A.2d 765 (Pa. Cmwlth. 1996)]. The Board did agree with the hearing examiner that [Licensee’s] conduct was willful and did breach the fundamental element of trust, which in turn taints the nursing profession. The Board however, concluded that the [Licensee’s] conduct is deserving of a more substantial sanction, than determined by the hearing officer, to protect the public health and safety.

The Licensee strenuously argued that her expunged record precluded any use of the criminal record in the disciplinary proceedings. Citing the Criminal History Record Information Act, 18 Pa. C.S. §§ 9101-83, (the criminal code provision allowing for expungments) Licensee contended the Board erred in relying on an expunged offense as the basis for its disciplinary action. Licensee’s criminal record was expunged in April 2008. Licensee thus asserts the Board’s November 2008 order violated 18 Pa. C.S. § 9124 (relating to use of records by licensing agencies). Licensee argues the Board’s revocation order is based on the hearing examiner’s August 2007 findings and conclusions, which cited Licensee’s criminal record. Thus Licensee asserts the Board violated 18 Pa. C.S. § 9124(b) and her right to be free from the difficulties and hardships of a criminal record. See Commonwealth v. Butler, 448 Pa. Super. 582, 672 A.2d 806 (Pa. Super. 1996) (arrest record can be harmful to an individual’s reputation and opportunities for advancement in life).

However, because the licensee was not represented at the hearing or failed to properly answer the original Board pleadings citing to the criminal record, the Board found that the licensee waived this argument by failing to raise it either in her answer to the order to show cause or at any time before the Board’s final order. Pa. R.A.P. 1551(a). In addition, the licensee did not file a brief on exceptions challenging the hearing examiner’s proposed adjudication. Issues not raised in exceptions to the Board’s proposed adjudication are considered waived. 1 Pa. Code § 35.213; Mostatab v. State Bd. of Dentistry, 881 A.2d 1271 (Pa. Cmwlth. 2005). See also Kindle v. State Bd. of Nursing Exam’rs, 512 Pa. 44, 515 A.2d 1342 (1986) (defense of laches must be raised at administrative level or it is waived).

Nonetheless, the Board alternatively argued that even without the criminal record, it could still find that the licensee committed fraud or deceit in the practice of nursing, engaged in unprofessional conduct and willfully violated a Board regulation. This conclusion may have been made by the licensee’ unrepresented factual admissions to an investigator, licensee’s testimony, or answers to the pleadings that while on duty, licensee committed theft by taking $ 125 from an elderly patient’s wallet. From these admissions, the Court ruled that the Board did not charge licensee with violating the Act due to her criminal conviction, but based upon the factual admissions of misconduct on the date in question.

The lessons learned from the cases is simple. Make sure you have counsel as soon as a work place investigation begins to properly protect your legal rights, don’t say anything stupid to a state investigator, and hire counsel that is aware of the pit falls of the factual allegation, pleadings, and presenting certain testimony at the hearing before the hearing officer. The proper framing of the case and what evidence is introduced into the record, upon which the formal Board will rely when agreeing to or modifying certain sanction, is important. Every step in the process is similar to a slow moving chess game. If you or your counsel does not know how to play the game of chess, you will be outwitted, out smarted, and lose your license.

Please call to discuss your case, any pending criminal matters, and the status of the license investigation.

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