A Drug Act Conviction – An Automatic License Suspension – Not Revocation – with A Right of Reinstatement.

Pennsylvania’s Nursing Law has existed since 1951.  Between 1951 and May 1985 the Nursing Law did not include a provision automatically suspending a license upon conviction of a Controlled Substance Act felony.  In 1985, the Legislature revised the statute by adding Section 16.1 which states:

A license issued under this act shall automatically be suspended upon . . . conviction of a felony under the [Controlled Substance Act] . . .. As used in this section the term “conviction” shall include a judgment, an admission of guilt or a plea of nolo contendere. . . . Restoration of such license shall be made as in the case of revocation or suspension of such license.

McGrath v. Bureau of Prof’l & Occupational Affairs, No. 5 WAP 2017, 2017 Pa. LEXIS 3109, at *12-13 (Nov. 22, 2017).  Once issued, nursing licenses may be suspended or revoked by the Board. As set forth in Section 14 of the Law, the Board may suspend or revoke a license if it makes certain findings. See 63 P.S. § 224(a), (b)(3). Additionally, the Board may refuse to issue an initial license for these same reasons.

McGrath’s nursing license was automatically suspended – not revoked – when she was convicted of violating the Drug Act (it seems a felony).  McGrath petitioned for reinstatement of her nursing sometime shorter than 10 years.  McGrath argued the Nursing Act’s provision for reinstatement allowed for the Board to grant such application within its discetion at any time, not earlier then 10 years stated under a separate provision of the Nursing Act.

She won in the Commonwealth Court and the Nursing Board took an appeal to the Supreme Count. The issue is “In view of the absence of an explicit directive for restoration of an automatically-suspended license which has not been revoked, should the court follow the 10 year reinstatement period or shorter.

I have written about the consequences of a Drug Act conviction many times.  The automatic suspension and delayed eligibility for either reinstatement or revocation present substantial impediments to practicing licensee.

The Pennsylvania Supreme Court in McGrath determines that after the Nursing Board has suspended a license, it may restore or reissue the license in its discretion (less than 10 years) subject to any disciplinary or corrective measure it could have originally imposed. § 224(b)(6). The process for doing so is reflected in Section 15 of the Nursing Law, which states, in pertinent part:

All suspensions and revocations shall be made only in accordance with the regulations of the Board, and only by majority vote of the members of the Board after a full and fair hearing before the Board…. The Board, by majority action and in accordance with its regulations, may reissue any license which has been suspended. If a license has been revoked, the Board can reissue a license only in accordance with section 15.2.
63 P.S. § 225. There are distinct procedures for the restoration of suspended versus revoked licenses, and it imposes a more restrictive regimen in relation to revoked licenses. In addition to the discretionary suspension of licenses under Sections 14 and 15, the Nursing Law contains a provision, added in 1985, for automatic suspension due to a felony conviction under the Controlled Substance, Drug, Device and Cosmetic Act.  63 P.S. § 225.1(b).  In particular, Section 15.1(b) of the Law states:
A license issued under this act shall automatically be suspended upon … conviction of a felony under the [Controlled Substance Act] …. As used in this section the term “conviction” shall include a judgment, an admission of guilt or a plea of nolo contendere…. Restoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license.
(emphasis added). In terms of the “hereinafter provided” clause of the above text, Section 15.2 indicates:
Unless ordered to do so by Commonwealth Court or an appeal therefrom, the Board shall not reinstate the license of a person to practice nursing … which has been revoked. Any person whose license has been revoked may reapply for a license, after a period of at least five (5) years, but must meet all of the licensing qualifications of this act for the license applied for, to include the examination requirement, if he or she desires to practice at any time after such revocation.
Finally, Section 6(c) of the Nursing Law, which relates to the qualifications for licensure, specifies that if a nursing license applicant has been convicted of a felony under the Controlled Substance Act, the Board may not issue a nursing license to that person unless: ten years have passed since the date of the conviction; the applicant demonstrates significant progress in rehabilitation so that licensure is not expected to create a substantial risk to patients or the public; and the applicant otherwise satisfies the licensure qualifications set forth in the Law. See63 P.S. § 216(c).
The McGrath Supreme Court specific states a professional nurse who has been licensed but whose license has been suspended is not similarly situated to an individual who has never been licensed—or, for that, matter, a person who was once licensed but whose license has been revoked. See generally Brown v. State Bd. of Pharmacy, 129 Pa. Cmwlth. 642, 646, 566 A.2d 913, 915 (1989) (acknowledging that a person holding a professional license still possesses a property right in that license even where it has been suspended (but not revoked), as a suspended license is “susceptible to revival”); Pittenger v. Bureau of Prof’l & Occupational Affairs, 142 Pa. Cmwlth. 57, 61–62, 596 A.2d 1227, 1229–30 (1991) (same, and expressing further that “when a license … is revoked, it is extinguished and the former possessor is returned to the same position he occupied had the license or privilege never been issued” (quoting Keeley v. State Real Estate Comm’n, 93 Pa. Cmwlth. 291, 296, 501 A.2d 1155, 1158 (1985))).
Having conclude that reinstatement is eligible in less that ten years, such is still within the discretion of the Board.  More importantly, the Court affirmed the proposition that

Section 15.1(b) reflects a clear legislative policy judgment that a felony violation of the Controlled Substances Act is an especially serious infraction warranting an automatic license suspension.  “The Board [still possesses] … discretion to restore such a license in the manner applicable to other license suspensions after conducting an appropriate administrative review.”
This huge legal victory, is however, probably short lived.  The McGrath Court simply counsel’s the Board to seeking revocation of a license, in accordance with the procedures outlined in the Nursing Law, following a conviction under the Controlled Substances Act. See63 P.S. § 224(a)(8) (authorizing the Board to impose discipline, up to and including revocation, based on the acquisition, possession, distribution, or use of a controlled substance for other than acceptable medical purposes).  (“The Board could have sought revocation of Ms. McGrath’s license [under Section 14] … but it did not.” (emphasis omitted)). If an automatically-suspended license is ultimately revoked, reinstatement would then be governed by Section 15.2.
The McGrath lesson is two fold.  The case reveals very poor legislative drafting that creates a loop-hole, for suspended licensees convicted of Drug Act violations, which allows them to seek to seek license reinstatement under ten years when they have a good reason.  However, either the General Assembly will fix this statutory construction problem or the Board will change its policy and start revoking licenses of those professionals convicted of Drug Act violations.
Call me to discuss your criminal matter and the status of your license.

 

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Felony Convictions and License Reinstatement

A licensed professional convicted of a felony drug offense is a major impediment to securing licensure in another jurisdiction or seeking reinstatement once your professional license is disciplined for that conviction. In many license reinstatement cases, applicants are so in need of their license that they hire the wrong attorney, waste money on filing reinstatement petitions prior to the expiration of the license preclusion period, or simply give up on getting their license back.
In a 2017 Pennsylvania Nursing Board Final Adjudication and Order the nurse was convicted in 2006 in Delaware of practicing with an expired nursing license.  In 2015 she sought reinstatement of her Pennsylvania nursing license.  Because she was convicted of a felony involving the practice or professional in Delaware, the convicted offense and license discipline was applicable under the Pennsylvania Nursing Act to her Pennsylvania license.
After 8 years, she hired the wrong attorney to seek reinstatement of her Pennsylvania nursing license. Her attorney thought reinstatement was was possible based upon mitigation and rehabilitation evidence.  She was wrong.
Pennsylvania’s Professional Nursing Law, section 6(c), states that the “Board may not issue a license or [graduate training certificate] to an applicant who has been convicted or a felony relating to a controlled substance law (in any jurisdiction) unless at least 10 years has elapsed from the date of conviction.   It does not matter how much rehabilitation the applicant has undergone.  If the application for licensure is not outside the ten years, there is no legal ability for the Board to consider the license application.
This denial of licensure application case reveals that counsel for the applicant did not know the law.  Focusing on rehabilitation rather than eligibility, the applicant’s attorney wasted his client’s money on his premature application, hearing, and appeal time.
Licensing attorneys must know what evidence is admissible in the relaxed administrative hearing process under GRAPP (General Rules of Administrative Practice and Procedure) 2 PA.C.S. § 504.  Knowing to what exhibits or evidence to object and facts an attorney should stipulate will make or break a licensee’s case.  The uninformed general practitioner will not know the importance or admissibility of certain evidence.  They will waste time and legal fee money fighting evidence that is admissible in evidence for the Board to consider or will move into evidence evidence that the Board should not consider.
More importantly, the uninformed practitioner will accept a case simply to pay their bills.  The uniformed attorney will take cases that have no merit, can not be won, or will lose a case that is easily won.  Desperate licensed professionals who are waiting out a discipline and seek reinstatement will pay an attorney who sounds good but can not discern the attorney’s lack of knowledge of their case.
Call me for confidence in understanding your case.  I will give you a clear understanding of the problem, counsel you about the risks and rewards of fighting your case.  I will not take your case, or fight for your license if you do not want me to, can not afford it, or there is no basis to seek reinstatement.
Fighting a disciplinary action – an Order to Show Cause -, contesting the VRP or DMU letters must be done with competent informed counsel. Never concede an impairment. Never admit an addiction without formal legal counseling on the affect of such on your license. Never plead guilty to any criminal offense without consultation with an experienced license attorney so you understand the collateral consequences of the criminal conviction, ARD, or no contest plea.  Please read my blogs and website to understand how I can help you and protect your license.

Rural Nursing and the Scope of My Practice

Telephones are great.  Your reading this blog because of the internet.  You are concerned about a legal issue of which I have written about.  I write all of my blogs and wrote every article on my website and the topics contained therein.    All the AVVO reviews on my website are from great medical professional facing significant issues  of which I help them considerably.

Due to the Pennsylvania nursing impairment enforcement environment, my professional license defense practice (criminal and disciplinary hearing) take me to many rural counties throughout Pennsylvania.  My web and internet presence starts my legal relationships.  I meet with almost every client in either county district or Common Please Court, in Harrisburg for a hearing, or at a convenient place to prepare for the next step in the legal process.  I therefore drive a lot.

My driving throughout the Commonwealth brings me to really wonderful people, scenery, and vistas.  I have written about driving through the Lehigh Valley several times.  Last week I ventured off to Columbia County.  It could be considered the middle of the Commonwealth — a wealthy state it is.  Some pictures taken while driving reveal the early morning fog burning off.

 

The really interesting thing about this photograph is that the fog is coming from the cold water of the eastern branch of the Susquehanna River.  This branch meanders west and then south, merging with the northern branch that falls north to south from Lewisburg and Williamsport into Harrisburg, where my clients and I attend the Nursing, Medical Board and other hearings.

Coming back from Columbia County, Jim Thorpe and the Lehigh River bring me home through the Lehigh Tunnel.

 

I really like Carbon County, Jim Thorpe.  The town is great.  The court house is magnificent, and there is a bike rental and equipment shop next to the breakfast place.  The crazy monument controversy is alive and present in the town square.

Carbon County Square

Call me to talk about coming to your Pennsylvania County to handle your nursing license, medical license, or other professional license disciplinary or criminal matter.

Medical Marijuana and the Pitfalls for the Professional

The pitfalls of medical marijuana for the professional are more evident every day. Several weeks ago I wrote a blog on the challenges facing licensees who seek a medical marijuana card due to a medical condition. Prescription Drug History   In another blog I wrote about the complexities facing medical professionals who seek to become medical marijuana authorized prescribers.

 

In Pot Doc Article the Philadelphia Inquirer reveals Pennsylvania’s Medical Board, Health Department, FBI, and DEA investigatory practices in this field.  If you are a medical professional, please read this article.  I represented a peripheral, part time doctor moon lighting for Dr. Nikparavarfard.

Doctors working in a medical practice that includes a “Pot Doc“ – doctors that are authorized to write prescriptions for medical marijuana – are subjecting themselves to unnecessary oversight and inquiry.  When a  “Pot Doc” exposes himself to both criminal and licensing  investigations, they expose all nurses or doctors employed by that practice.  Drug Act violations are routinely found and criminal charges filed!.

The FBI and DEA’s investigation of Dr. Nikparvarfard’s Scranton office – the Pot Doc – necessarily also included  my client’s prescribing patterns.  An invasive, long running investigation turned to her simply because the police were investigating that practice and needed leverage against Dr. Nikparvarfard.  Experienced and accomplished undercover FBI, DEA, Health Department agents then ensnared my client.  Again, only because they were looking at Dr. Nik’s practice.

My client was not the prescribing “Pot Doc.”  However, the overarching Pot Doc investigation expanded to any potential criminal activity discovered within the medical practice.  But for my client working for the Pot doc and his medical practice, my client would not have been under surveillance. Unfortunately she was.

Once my client became known to FBI, her prescription and Medicaid/Medicare billing patterns were easily examined, patients contacted, and medical procedures evaluated.  Undercover patients were sent to the practice.  All because of the attention brought on the practice by Pot Doc Nikparvarfard.

One bad apple spoils the pie; two or three bad apples subject professionals to jail.  These types of investigations render medical professionals (nurses and doctors) unemployed and potentially unemployable.  Thereafter, professionals are the target of multiple investigations by medical boards, DEA,  Health Departments, and potentially the U.S. Department of justice.  But for my client’s employment with a Pot Doc, she would not have come under any surveillance.

This case is but one example of many to come.  Overarching public safety concerns, opiates in the news, and an aggressive enforcement environment of a new regulatory scheme create huge risks for both Pot Docs and those doctors and nurses who work with them.

Please call me to discuss

Birchfield, Rufusals, and PennDot’s DL – 26B Form

In many pending 2017 Pennsylvania DUI and civil license refusal cases stemming for arrests between April 2016 and July 2017 police officers administered incorrect chemical test warnings to Pennsylvania motorists.  Use of the DL 26B form, I think, is legally insufficient pursuant to the then effective 75 Pa.C.S. § 1547(b)(2).  Counsel should file suppression motions.  A corollary issue is whether these drivers are capable as a matter of law of refusing the blood test where the police officer testifies he read the illegal PennDOT DL-26B form.

In May/June 2016 PennDOT created the new DL 26B form in response to Birchfield.  Birchfield held that criminally coercing a blood draw — compelling a defendant to testify/provide blood evidence against themselves or face jail time — is unconstitutional.  After Birchfield, enhanced penalties and threats of jail to secure evidence in DUI cases require suppression of blood evidence.  In response PennDOT changed its DUI informed consent form, the DL 26B document that local and state police read to DUI suspects when the want the suspect to give blood.  The General Assembly did not give PennDOT authority to do this.  This is the topic of this blog.

The suppression argument is as follows:  The arresting officer’s warnings to the DUI suspect fail to comply with Section 1547(b)(2) in that the driver was not advised that refusing the chemical test would result in enhanced criminal penalties (i.e. the penalties provided in Section 3804(c)) as § 1547(b) (pre-July 2017) requires.  While there is no statutory or other requirement that any DL-26 Form contain appropriate warnings, or that the form be read verbatim, it is nonetheless the duty of the police officer to inform the petitioner of the statutorily required warnings.  (See Section 1547(b)(2)).  In other words, if the police officer recites the appropriate warnings from memory without the use of any form at all that is perfectly acceptable under the law.  If an officer confirms the only warnings provided were those contained on the DL-26B Form, those warnings are not consistent with the statutory law prior to July 2017.

This date is important because on July 20, 2017, the governor approved Act 30 of 2017 which provides for an amendment to Section 1547(b)(2), removing language requiring a police officer to provide the warnings relating to enhanced criminal penalties for refusal. While this amendment was not effective on the date of petitioner’s incident, the fact that the legislature  amended  it is indicative  of its acknowledgement that such an amendment was necessary to effectuate the change required of the warnings pursuant to Birchfield.

Importantly, the §1547 pre-July 2017 statute includes the word shall.   The legislature’s use of the term “shall” establishes that police officers must comply with the §1547 language mandate. In Comm v. Weaver, the 2006 Pennsylvania Supreme Court interprets §1547(b)(2) verbiage (the same was in effect on prior to July 2017) reaching the same conclusion.  Following the September 2003 amendments to the Implied Consent Law, PennDOT implemented the language of§ 1547(b)(2)(ii) into a new DL-26 form. This led to a significant amount of litigation over whether the warnings printed on the December 2003 version of the Department of Transportation’s DL-26 form were sufficient to satisfy the requirements of§ 1547(b)(2). The Pennsylvania Supreme Court, in Weaver, held that the warnings printed on that version of the DL-26 form were legally sufficient to satisfy those requirements.  In reaching its decision, the Weaver Court stated:

The legislature’s use of the term “shall” clearly establishes that police officers must comply with  this mandate.   Subparagraph (ii) commands police officers to inform an arrestee that “(ii) upon conviction, plea or adjudication of delinquency for violating section 3802(a), the person will be subject to penalties provided in section 3804(c) (relating to penalties).” The words of this statute are clear and free from all ambiguity; thus, we will glean the legislative intent from those words. The plain language requires only that the officer inform the arrestee that if he is convicted of DUI, refusal will result in additional penalties.

Accordingly, under the plain language of the statute, the warnings set forth in the 2017 version of § 1547(b)(2) are mandatory and must be strictly complied with in order to suspend a motorist’s operating privilege pursuant to the Vehicle Code. Previously, in very certain terms, Pennsylvania’s Supreme Court has held that, in requesting a chemical test, the police officer must inform the arrestee of the consequences of refusal and notify the arrestee that there is no right to consult with an attorney before making a decision. See O’Connell, 555 A.2d at 877-78.12 “An arrestee is entitled to this information so that his choice to take a [chemical] test can be knowing and conscious.” Id. at 878. The choice belongs to the arrestee, not the police officer.

In Commonwealth of Pennsylvania, Department of Transportation v Kennedy, 66 A.3d 818 (Pa. Comw. 2013), the Court says that:

“the warning delivered to [licensee] fully complies with the statutory requirements. The statute simply does not require any specific explanation as to the length of the civil suspension and does not require explanation of criminal penalties set forth in §3804(c). The statute requires only that the police provide notice that refusal will result in license suspension and, that if the licensee is driving under the influence, refusal will result in additional penalties. [The licensee] receives this information. Kennedy requires that the officer deliver only the statutory authorized 1547(b) authorized penalties of a refusal. While there is no specific language that the Courts have determined these police officers must read licensees, once the officer begins notifying potential motorists of license refusal consequences, only those consequences that are set forth in the statute must be read.”

Our Pennsylvania Supreme Court has confirmed police officers’ obligation to advise motorists of the exact warning contained in §1547(b)(2). In this 15 month period, police officers utilizing the DL-26B form did not comply with statutory law requiring the correct consequences be advised to these motorists. PennDOT’s utilization of the revised DL-26B was not sanctioned by the General Assembly and not legally effective on the date and time of these arrest render the information provided to them insufficient as a matter of law.

§1547 prior to July 2017 required reading all language contained therein, even those provisions deemed unconstitutional by the United States Supreme Court. This tension between the current statutory laws and judicial decisions create a situation fraught with potential that motorists will not receive sufficient information to make a voluntary, informed decision regarding consent to the requested chemical testing.

The complex criminal versus civil application of Birchfield, Weaver, Kennedy, supra, is born out in Boseman v. Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017), and Gray v. Commonwealth , Dep’t of Transportation, Bureau of Driver Licensing, No. 1759 C.D. 2016, 2017 WL 2536439, at *7–8 (Pa. Commw. Ct. June 9, 2017), reargument denied (Aug. 7, 2017).  These cases maintain  arresting officer’s statutory obligation to inform a motorist of the General Assembly’s defined § 1547(b)’s ramifications of a refusal – not PennDOT’s version.

In Boseman  and Gray, supra, Commonwealth Court states Birchfield does not apply to PennDOT license suspension refusal cases. As such, any court finding that Birchfield effectively compelled PennDOT to unilaterally re-write the 1547(b) mandatory warning, to a non-statutorily authorized version, is not supported by the Commonwealth Court’s application of Birchfield in the §1547(b) refusal context. Boseman, Gray, Weaver, Kennedy, supra.

In Gray and Boseman, supra, Judge McCullough dissents.  Judge McCullough convincingly points out the incongruity of the constitutional right of privacy and self-incrimination Birchfield establishes (adopted by Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016)) and Commonwealth Court’s dismissing such argument in the civil license suspension context when ONLY a state based property right (a motor vehicle operator’s license) is at issue.

In Price v. Commonwealth, Dep’t of Transportation, Bureau of Driver Licensing,, No. 1873 C.D. 2016, 2017 WL 4321625, at *6 (Pa. Commw. Ct. Sept. 29, 2017), Judge McCullough concurs in the result (she is constrained to follow Boseman, supra) but reiterates her position set forth in Gray and Boseman.  However, Judge Cosgroves dissents:

While Birchfield is not directly applicable here, it does stand for a principle which the former DL–26 does not reflect. And while Birchfield allows implementation of civil penalties for refusal to submit to a blood test in cases such as this, it does not give states permission to misinform a licensee as to the consequences of a refusal.

As such, Courts may, on alternative grounds, conclude Birchfield applies in the civil, administrative license suspension realm as a driver’s licenses in this day and age constitutes a property right to which criminal threat of incarceration to surrender (the proper § 1547(b) language to be read but was not) violates her constitutional rights, voiding any refusal. This conclusion is sought even though the DL-26 Form with the enhanced penalties was not read to these motorists.  It was still required to be read, but was not.

Call me to discuss your case.

 

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