Immediate Temporary Suspension — Are Temporary for 180 Days Only

Board prosecutors file a petition called an Immediate Temporary Suspension (“ITS”) petition that allows licensing boards to temporarily and immediately suspend licensees’ ability to practice their profession.  These petitions are typically reserved against licensee involved in a Drug Act investigation or sexual assault case.  The ITS suspension lasts, at the most, for 180 days.
The ITS petition must be followed up with a preliminary hearing to address the probable cause alleged in the petition.  A hearing must be scheduled and conducted within 30 days from the date of issuance of the suspension order. These preliminary hearings are limited to evidence on the issue of whether it is more likely than not a licensee engaged in any type of inappropriate criminal behavior supporting a temporary but emergent, suspension. Licensees are entitled to be present at the preliminary hearing, with or without an attorney, cross-examine witnesses, inspect evidence, call witnesses, and offer evidence and testimony.
If the hearing examiner does not find the prosecutor met their burden of proof, the licensee’s license and other authorizations to practice are immediately restored. If the prosecutor met their burden of proof, the temporary suspension remains in effect until vacated, but in no event longer than 180 days, unless otherwise ordered or agreed.
Orders for temporary suspension cases still require prosecutors to commence a separate disciplinary action seeking to suspend, revoke or otherwise restrict a licensee.  This separate action is filed through of a charging document known as an Order to Show Cause (“OSC”). In the OSC, facts are not limited to those alleged in the ITS petition.  The order to show cause is typically filed within the 180 day time, while the immediate temporary suspension is pending.
If a prosecutor does not file any disciplinary action after 180 days, the licensee is able to file a petition for the administrative reinstatement of the license. There is no hearing required and the board shall reinstate the licensee’s license. License reinstatement will issue even if there is a pending disciplinary action.

The post-180 day period is the time after which licenses can get their license back pending disciplinary action. I am currently handling several ITS cases with disciplinary action pending and not pending.  In one case disciplinary action was not filed for over a year. The licensee did not file a petition to reinstate her license and did not engage in the practice of her profession. This was a foolish mistake because absent disciplinary action, her license was subject to reinstatement without restriction after 180 days.  A little bit of research and hiring counsel would have properly notified the licensee of the lack of basis to continue her suspension.

License reinstatement is independent of any criminal prosecution or terms of a criminal sentence. Criminal prosecution can not include in a guilty plea agreement provisions that preclude a licensee from practicing your profession.  Call me to discuss your case.

A Good Lawyer is Money Well Spent – Protect Your License

A February 28, 2019 Commonwealth Court issued a decision reversing a Pennsylvania Medical Board order reprimanding a physician. The order reprimanding the physician stems from a medical malpractice case.  The patient died and the Medical Board accused the physician of practicing below the standard of care. The physician objected to the public reprimand placed on his license. The Commonwealth Court agreed, striking the discipline.
The Court concluded the physician’s objections at the hearing to certain evidence were proper.  The hearing officer and Medical Board should not have relied on inadmissible evidence when disciplining the physician. The evidence is hearsay statements in the form of a hospital-based peer review evaluation of the surgical procedure in which the patient died.  At the hearing, before the Medical Board, and on appeal the prosecutors argued the peer-review report was admissible. The doctor objected as he was not permitted to cross examine the report’s author at the hearing or before the medical board.
Both the Board and the doctor agreed the peer review is hearsay — a statement that ‘(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.’ In administrative hearings, the rules of evidence are relaxed and “all relevant evidence of reasonably probative value may be received.” 2 Pa. C.S. § 505.
With regard to the use of hearsay in administrative proceedings, it has long been established as follows:  (1) Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding of the Board[;] (2) Hearsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding  of the Board, if it is corroborated by any competent evidence in the record, but a finding of fact based [s]olely on hearsay will not stand. This is known as the “Walker rule.”
The prosecutors tried to argue the peer review report was a standard medical record upon which experts ordinarily rely in rendering their opinions and conclusions. This is a very standard practice in medical malpractice and other civil litigation cases in which experts are involved. Experts are allowed to review medical records that contain hearsay statements upon which their expert opinions and reports may be based. Through appropriate cross-examination with experience trial counsel before the hearing officer, the physician established that the board expert did not review, read, or rely upon the peer review report to base his conclusion.
The Commonwealth Court ruled the prosecutor did not satisfy the evidentiary predicates allowing the medical board to consider the peer review report as admissible hearsay. Stated another way, the physician had a good attorney who protected the physician at the hearing and the prosecuting attorney messed up.
The prosecutor tried to argue the Peer Review Officers were unavailable witnesses.  The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:  (1) Former Testimony. Testimony that:  (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had–or, in a civil case, whose predecessor in interest had–an opportunity and similar motive to develop it by direct, cross-, or redirect examination. PA. R.E. 804(b)(1) (emphasis added).
The former testimony exception applies when the declarant is unavailable. The Board acknowledged this limitation in its adjudication but dismissed the “unavailability of a declarant” requirement as serving “no useful purpose in an administrative proceeding where the objective is to adjudicate issues in an expeditious  manner.”  The lapse of six years between the incident and the Board’s adjudication belies this rationalization. The record offers no support for the position that any of the witnesses who appeared in the peer review hearing were unavailable to testify at the Board hearing or to provide a deposition.
The prosecutors then tried to argue the peer review report was a business record. The prosecutors did not properly lay the foundation to allow the hearing officer or medical board to consider the peer review report as a formal business record. For a record to be “certified” requires the custodian of the records to sign a certification before a notary public. 42 Pa. C.S. § 6152(d). 10 Assuming, arguendo, that the Peer Review Transcript is a “medical chart” or a “medical record,” it lacks a certification from the custodian of records for the hospital. Because the Peer Review Transcript was not authenticated or certified, it does not pass the threshold for having a document admitted under 42 Pa. C.S. § 6151.
This is a great case affirming a fundamental part of my professional licensing advocacy. Every licensee should have competent counsel both who knows the administrative regulations, procedures, and has been a civil or criminal litigating attorney who is fully competent and versed in the Pennsylvania Rules of Evidence. Counsel that stipulates or does not object to certain evidence coming into these licensing hearing is engaging in malpractice. They are not properly representing their licensee client to the fullest extent of the law. Even minor admissions or stipulations of certain evidence could become the linchpin upon which a hearing officer, licensing board, or the Commonwealth Court will rely to allow discipline.
In hiring counsel, licensees must make sure the attorney is experienced in both trying cases, the rules of evidence, and the licensing board regulations. This trial and appellate attorney who handled Dr. Ives his case did a great job. Congratulations. Call me to discuss your case and let me protect your license.
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