Pennsylvania Drug Act Convictions and Collateral Consequent Automatic Suspensions

The complexities of representing licensed professionals in criminal matters always surprises me even though I have handled complex federal and state criminal matters for over twenty years. To effectively represent the licensed practitioner in a criminal case counsel must fully understand the collateral consequences of a criminal conviction under the Pennsylvania Drug Act, 35 P.S. § 780–113 (a). Two provisions of the Drug Act, 35 P.S. §§ 780–123 (b) &(c), are especially important to licensed professionals.

The Drug Act § 113(a) lists thirty six illegal actions involving drugs, prescriptions, record keeping, and other pharmaceutical issues. Section 780- 113(b) identifies which of those thirty six offenses are either felonies or misdemeanors and their respective jail penalties. Drug Act sections 780-123(b)&(c) identify a separate penalty solely targeting the licensed practitioner who is convicted of, or pleads guilty to, either a misdemeanor or felony offense set forth in 35 P.S. § 780-113(a).

When representing the licensed practitioner, 35 P.S. § 780-123(b) & (c) dictates the priority of negotiating a guilty plea to a non-Drug Act offense. An initial goal is to avoid any Drug Act criminal charge and/or conviction. A secondary goal on cases involving drugs is to secure misdemeanor graded Drug Act violations over felonies.

The importance of Drug Act convictions is set forth in § 780–123(a), (b)&(c). Subsections (a) and (b) authorize the practitioner’s licensing board to revoke or suspend the practitioner’s license upon a conviction of any criminal offense, with reasonable notice and an opportunity to be heard. The disciplinary process commences with a Rule to Show Cause and hearings scheduled in the future. The practitioner’s licenses remains active and unimpaired during these proceedings.

Under § 780-123(c), the licensing board shall, upon petition, automatically suspend the professional’s license. This occurs without notice to the practitioner and allows only for a penalty/ mitigation hearing. The automatic suspension penalty is not to exceed one year for the practitioner who pleads guilty, nolo contendere, or has been convicted of a misdemeanor under the Drug Act.

Subsection 780-123(c), was established to allow for automatic suspension of the practitioner who pleads guilty to possessing a controlled substance or paraphernalia. The person is a drug user whom the legislature does not want practicing their profession in a drug impaired manner. This is a simple understanding of the Drug Act’s purpose. The automatic suspension may be stopped only if the Drug Act conviction is for personal use of a controlled substance and the practitioner agrees to participate for 3-5 years in the PHMP impaired professional program. If the impaired professional does not comply in all respects with the PHMP program, the stay of any suspension under section subsection 35 P.S. §780-123(c) will be vacated.

What most attorneys do not understand is that §780-123(c) also applies to the practitioner convicted of any type of record keeping mistake, patient charting errors, or failure to conform to a standard of practice that is charged as a violation of the Drug Act. This is the kicker. If there is a guilty plea to any of the enumerated, but less known subsections of 780–113(a) — for example – (a)21 refusing to make entries in a medical record as required or – (a)28 providing false or incorrect or omitting any material information on a medical report, the practitioner’s Board shall automatically suspend, but not revoke, a practitioner’s license for up to one year for each count of each guilty plea. This action is the same even though no drug use, theft, diversion, and/or impairment is alleged, charged, or upon which a conviction is secured.

Under the §780-123(c) suspension process, the practitioner will not be afforded a due process hearing prior to the Board action suspending the license. The practitioner will be given notice of the suspension and then must petition for a hearing on the appropriateness of the already determined discipline. During this time, the practitioner must not practice their licensed profession.

The practitioner should file a petition to lift the automatic stay, setting forth the basis that the automatic suspension provisions of 35 P.S. §780–123(c) are not applicable. The practitioner must also ask for an expedited mitigation hearing. Here, the practitioner stipulates to the criminal conviction and the application of the automatic suspension under the Drug Act. Then, the practitioner must, through able counsel, put into the record extensive character and employment history evidence and explain the criminal offense. The practitioner must effectively argue why the Board’s exercise of its discretion and its term of automatic suspension, typically the maximum allowed, is abusive and not appropriate.

Case law requires the licensing board explain a decision of a maximum discipline. Typically this is hard for the Board to do and requires a modification of the trigger finger, snap maximum suspension decision. When the Drug Act conviction does not involve any personal use of narcotics and there is no evidence of a drug or alcohol addiction causing an impairment (see my other blogs about the PHMP), compelling reasons to reduce a maximum suspension are always present. This is when practitioners need competent legal counsel that is uniquely aware of the inter-relationship between Drug Act convictions and licensing boards’ administrative cases.

A recent case in which I became involved, after conviction, presents an extreme example of a criminal defense attorney who incorrectly advised a practitioner to plead guilty to misdemeanor Drug Act violations that involved record keeping and medical charting issues. Apparently, counsel also was unaware of the legal burdens and complexities of a criminal charting error or medical record forgery prosecution, which is typically what these secondary Drug Act misdemeanor cases are, counsel negotiated misdemeanor guilty pleas. Unfortunately, the attorney did not know and did not advise the practitioner that her guilty pleas would result in three consecutive automatic license suspensions.

Due to the snail’s pace of licensing disciplinary process, it took two years after the guilty pleas for the Board to commence the disciplinary process and automatically suspend the license. Due to this delay in time, the practitioner could not seek to withdraw her guilty plea due to ineffective counsel. Counsel and client were apparently scared by charged but specious felony forgery offenses. The attorney must have thought he/she did a great job by securing guilty plea offers to misdemeanors with probation.

However, my experience handling these types of pre-criminal charge investigations is that extensive meetings with state board investigators and Bureau of Narcotics Enforcement officers typically eliminate the filing of criminal charges. This avoids any licensing matter. Usually, charting errors and PYXIS drug dispensing mistakes are not criminal offenses. Counsel was unaware of this, never secured these meetings, and thought they won the case with probation and misdemeanors. WRONG!!! The entire case was handled incorrectly, all to the practitioner’s detriment and license loss.

Attorneys who dabbled in criminal law and do not handle administrative licensing matters, will unknowingly commit malpractice in advising a practitioner to plead guilty to misdemeanor Drug Act violations for probation. In many cases, the Commonwealth cannot prove criminal intent. These cases should not be brought and experienced counsel should fight them. An attorney who is unaware of the automatic license suspension provision of the Drug Act should not represent any licensed practitioner. Unfortunately this case is another example of why competent and capable counsel is necessary to handle both criminal and civil legal matters for licensed practitioners who become entangled in the criminal process. Please call or email to discuss your case.

Tricks and Traps of the Administrative Law Process

My administrative law practice reaches most of Pennsylvania’s 26 licensing boards. Of the several veterinarians that I represent, professional misconduct allegations typically focus on incompetence, record keeping, professional conduct, and standard of care issues. However, many veterinarians attempt to handle these types of issues on their own, to their failure.  They think that one animal loving caregiver to another (the Veterinarian Board) will understand the issues involving a veterinarian practice.

On September 10, 2015 the Commonwealth Court decided the case of Hammad v. Bureau Of Professional And Occupational Affairs, 2015 PA. Commw. Lexus 386 (2015). In this case, Hammad attempted to handle his case without an attorney. Hammad did not understand the procedural rules and regulations of the administrative law practice.  He lost, suffering a six-month active license suspension, followed by 18 months probation, and a $5000 fine. Whether Hammad could afford counsel is not the issue. By representing himself he had a fool for a client and lost the case.

Hammad’s unfamiliarity with the legal procedures the Commonwealth of Pennsylvania’s 26 licensing boards follow is why he needed an attorney.  Most cases are initiated by a prosecutor filing a Rule To Show Cause with the Prothonotary. The Prothonotary or filing office for all boards, consistent with the General Rules Of Administrative Practice And Procedure – GRAPP, notifies the specific professional licensing board.  That Board then delegates the matter to a hearing officer to conduct the trial or disciplinary hearing.  The Prothonotary mails these notices to the licensee who is in trouble.

Every disciplinary petition, the document that comes in the mail twice, one regular and one certified, contains explicit and extensive due process notifications. Each document advises the licensee of their ability to participate in hearings, present evidence, present witnesses, bring an attorney, and testify on their own behalf. Every court continuance notice, rescheduling notice, and correspondence from the prosecutors contain references to GRAPP notifying the respondent professional of their administrative hearing rights.

At the hearing, the hearing officer makes evidentiary rulings, admits evidence into the record, and issues proposed findings of fact, conclusions of law in the form of a formal report for that full licensing board to review. This is the crucial Due Process hearing in which the evidence presented will be considered by the full licensing board in the form of the hearing officer’s proposed findings of fact and conclusion of law.  As such, the evidence that the hearing officer allows into the record, or does not, is the most important part of every disciplinary case.

Unfortunately, Hammad chose not to attend the hearing, object to witness testimony, present evidence on his own, or present proposed findings of fact and conclusions of law. This was an incorrect course of action. Hammad did not object to hearsay testimony, expert testimony, improperly authenticated records, and inadmissible exhibits. In Hammad’s absence, the hearing officer accepted into evidence (for the full board to review) the testimony of the veterinarian investigator, the animal owner, a veterinarian expert and any and all evidence the Commonwealth’s attorney chose to admit.

With everything into the record that the prosecutor wanted, the full Veterinarian Board decided the case solely upon the prosecutor’s evidence and nothing from Dr. Hammad.  Having chosen to not have an attorney and, to his downfall, not attend the hearing, he lost any opportunity to participate in the ultimate decision. Hammad expected an opportunity to present his case to the full board rather than a non-veterinarian trained hearing officer, which was incorrect.

As is typical with many medical or non-legal professionals that I represent, Hammad paid no attention to these statutory references. He incorrectly thought that he would have an opportunity to present his case to the full board rather then a hearing officer. My prior blog of July 17, 2015 specifically discuss the benefits of having attorney at these hearings. This case is just another example of this legal opinion.


The tricks and traps of the PHMP/PMP are extensive.  Traps include compliance with professional boards’ legal conditions for reinstatement of which PNAP and PHMP caseworkers do not advise non-working program participants.  One recent trick a PNAP case worker tried to pull on a client almost foreclosed their timely completion of the PHMP & Board requirements, thereby extending the participation period (drug testing) of PHMP.

Every professional is charged with being aware of their licensing board’s continuing education regulations.  For nurses these are found at 49 PA. Code § 21.131–21.134. These regulations are also posted on every board’s website.  For nonpracticing professionals (those who licenses have been revoked or suspended and are required to also enroll in PHMP/PMP) complying with the rigors of the PHMP, it is also hard to focus on a website and educational requirement in their recovery/compliance protocols.

However, it is important to be aware of these education requirements – 30 hours of continuing education and possible reactivation training or re-examination tests. Prior to reinstatement after a minimum five year absence, every professional must either successfully complete a new initial licensing exam, complete a board approved reactivation program by passing a board approved achievement examination, or provide evidence that the applicant has practiced in another jurisdiction for those five years.  The professional who is 1) either suspended, revoked, or nonpracticing, 2) compliant with the PHMP/PMP, and 3) wants to be eligible for reinstatement, it is easy to satisfy these requirements at the same time as maintaining sobriety.

The education requirements are time consuming and calendar based. For the professional counting down the time left in a three, four, or five year monitoring program, PNAP and PHMP case workers will not counsel about these educational requirements.  As such, not being made aware of these additional education requirements and not satisfying them (but having completed the minimal time in the monitoring program) will delay full compliance with Board reactivation regulations.  While the professional may be deemed to have completed the PHMP/PMP process, and receive a advocacy letter from the case worker, the Board will not reinstate the professional to a full non-monitored license until proof of continued competency and completion of CE credits is established. Watch the registration windows for these classes, get PHMP approval to attend and take the tests as soon as eligible.

Importantly, this information is MANDATORY evidence attached to any suspended or revoked professional’s Petition for Reinstatement.  My other blogs address post-revocation rehabilitation and good deed evidence addressing character and fitness issues individual board members look at in professionals seeking reinstatement. The boards also look at the educational requirements as fundamental proof of the professional’s good faith interest in their profession warranting reinstatement.

Please call me to discuss your petition for reinstatement, compliance with PHMP/PMP and other licensing issues.

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