ECFMG and USMLE — No Irregular Behavior

Contrition and a good, honest client portend great results. My USMLE client traveled very far for this hearing in Philadelphia.  She was nervous, but testified credibly, confidently, and sympathetically. She testified about medical issues, significant many personal issues, including some financial difficulties.

She admitted oversight and failing to read the The USMLE Bulletin of Information.  However, the most important part of our presentation is that she accepted responsibility for the error, and reiterated her overwhelming health, personal, and financial issues at the time of the electronic submission.

“Following careful consideration of all of the information available, the CIR elected not to issue  a finding of irregular behavior. Accordingly, an annotation of irregular behavior will not be entered on your record with respect to this incident.”

 

Case over.  Call me to address your USMLE or ECFMG matters.

Pennsylvania’s New Opioid Treatment Agreement Law

On Nov. 27, 2019 Pennsylvania Governor Tom Wolf sign into law Act 112 of 2019.  This is Pennsylvania’s Opioid Treatment Agreement Law.  It  took immediate effect.  The law requires prescribers to enter into an opioid patient treatment agreement before issuing the first prescription in a single course of treatment for chronic pain using any opioid-containing medication, regardless of whether the dosage is modified during treatment.

Among the new requirements, the Prescriber must: determine whether an individual has taken or is currently taking a prescription drug to treat a substance use disorder; have a discussion with the patient about the risks of addiction, and additional risks if the patient suffers from a mental health condition or substance use disorder; present non-opioid treatment options available; and discuss the dangers of taking a controlled substance containing an opioid with benzodiazepines, alcohol, or other depressants. The Prescriber must review with the patient, and both must sign, a treatment agreement containing a number of required elements, including the patient’s consent to targeted urine drug testing if medically necessary. The Prescriber must obtain written consent from the patient for the prescription, and record the consent on the treatment agreement. The treatment agreement must be maintained in the patient’s medical record.

The law exempts from these requirements medical emergencies, management of pain associated with cancer, and use in palliative or hospice care. Violations of the law may result in sanctions to the Prescriber’s license in accordance with the applicable professional practice act. The Act is effective immediately, and mandates that the Pennsylvania Department of Health issue regulations within 90 days of the Act’s enactment.  Contact me for a Patient Agreement Form.

Aside from these patient agreements, 35 Pa. Cons. Stat. § 52A03 (2016). Pennsylvania also amended its laws regulating opioid prescribing to minors in 2016. The amended statute prohibits prescriber from prescribing more than a seven-day supply of a controlled substance containing an opioid to a minor.  Requirements with the force of law: 35 Pa. Cons. Stat. § 873.3 (2016). As with minors, Pennsylvania also now prohibits prescribers from prescribing more than a seven-day supply of opioids to persons receiving care in emergency departments.

Alcohol on the Job as a Medical Professional

Many nursing board prosecutions start from on-the-job claims of co-workers  smelling alcohol on a licensee’s breath while working or a nursing administrator thinking a licensee has slurred speech and seemed “scattered”.   Lets go get a drug and alcohol test.

Pennsylvania’s medical related licensing board investigates this type of allegation under 63 P.S. §§63 P.S. §§2205(b)(4) and (b)(5) for being unable to practice professional nursing with reasonable skill and safety by reason of mental or physical illness or condition or dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination.  In western Pennsylvania the Board sends individuals for the mental and physical examination to Robert Wettstein, M.D.  The purpose of Dr. Wettstein’s evaluation is conduct a psychiatric examination of the licensee to determine, if under the the DSM-V the licensee meets any one of, or a multiple of the eleven (11) criteria relevant to the diagnosis of an Alcohol or Drug Use Disorder.

Importantly the PHP, SARPH, and the PHP sucker, trap, scare medical professional licensees into the PHMP/PHP/PNAP programs after they are subjected to, and reveal, a positive Urine Ethyl Glucuronide test (“EtG”) which is not one of the eleven (11) criteria relevant to a diagnosis of an Alcohol Use Disorder set forth within the DSM-V.

In a recent case, the following facts were present: a negative drug screen on the day of the instance, not being terminated and no other work place discipline or termination from nursing employment, and a prior DUI ARD following a DUI arrest.  The licensee stated to Dr. Wettstein that she typically drank one or two bottles of draft beer or a mixed drink once or twice a week at a club, usually with her boyfriend.  The good doctor determined she was an alcoholic and concluded she could not practice safely with out going into the PHMP.

Wettstein diagnosed the licensee with an Alcohol Use Disorder based upon her EtG test results with the following Alcohol Use Disorder symptoms: 1) Respondent consumes more alcohol than intended as demonstrated through her purported ” blackout”/”brownout”; 2) Respondent has lost control of her alcohol use over time; 3) Respondent likely self-medicated with alcohol to address the emotional distress she experienced from the death of her brother; 4) Respondent is not attentive to her alcohol use or her alcohol experience as demonstrated by her 2010 DUI arrest and statement to him that she was not intoxicated at the time of her arrest; and 5) Respondent denied having an Alcohol Use Disorder or needing treatment for such a Disorder.

This licensee fought the case and won. Importantly, the licensee’s EtG test was positive and at 40-times the normal limit, but her Carbohydrate Deficient Transferrin (“CDT”) test was negative for heavy alcohol use.  The CDT test is a valid diagnostic test which tests for biomarkers indicative of heavy alcohol use.   This is a huge inconsistency in objective test results.

Importantly, the hearing officer thoroughly reviewed the factual record and concluded: “the record shows as a threshold matter that Dr. Wettstein failed to identify the diagnostic criteria for an Alcohol Use Disorder under the DSM-V in either his written report or through his hearing testimony. Nor did Dr. Wettstein identify the specific DSM-V criteria Respondent purportedly satisfies. In the absence of such critical information , any finding that Respondent has an Alcohol Use Disorder would necessarily be predicated exclusively upon Dr. Wettstein’ s opinion alone that Respondent has an Alcohol Use Disorder based upon the undisclosed DSM-V diagnostic criteria.”

An easy simple interpretation of this legal/medical conclusion is Dr. Wettstein made up his conclusion and did not rely upon any proper medical evidence to determine the licensee was impaired and unable to safely practice her profession.

The hearing officer relied upon an appellate case I handled and won.  In that case, Dr. Voskanian did the same thing — made up his opinion.  There, the court stated: Absent expert testimony establishing the diagnostic criteria for an Alcohol Use Disorder, the particular criteria a licensee purportedly satisfies, and how the licensee satisfies those criteria, the record fails to contain substantial evidence to support Dr. Voskanian’s diagnosis of an Alcohol Use Disorder but, instead, requires  the Board to merely accept his diagnosis at face value. See, e.g., Thim v. Bureau of Professional and Occupational Affairs, 1019 WL 3315143 at *8-9 (Pa. Cmwlth. July 24, 2019).  This, the court would not allow the Board to do.

The appellate court and the hearing examiners are starting to push back on Board experts’ baseless, made up, medical legal conclusions.  Call me to discuss your case.

Recreational Marijuana is NOT Legal in Pennsylvania

“Over the past several years, nearly half of our Sister States and this Commonwealth have legalized medical marijuana. Some States have also repealed their prohibitions against recreational use; Pennsylvania has not.  A recent case emphasizes this point.

In this appeal, John Batista makes the novel argument that, because marijuana is now medically available in Pennsylvania, police officers may no longer rely upon its smell as a factor for developing probable cause. Like the trial court, we reject this theory. In certain instances, the smell of marijuana may still indicate that a crime is afoot, because the growth, distribution, possession, and use of marijuana without a state-issued permit remains illegal. Thus, the magistrate had a substantial basis to issue a search warrant for Batista’s garage, and we affirm the order denying suppression.”

Commonwealth v. Batista, No. 1130 EDA 2018 (PA. Super. September 27, 2019).

http://www.pacourts.us/assets/opinions/Superior/out/J-S42023-19o%20-%2010415891078797439.pdf?cb=1

IMPAIRMENT PROSECUTIONS – SAFE TO PRACTICE- FULL SUSTAINED REMISSION

Alcohol abuse, prescription pain medicine abuse, sleeping pill abuse, Adderall and ADHD medication abuse. Medical providers suffer from these disorders. However, if you go to work every day and professionally perform your care giving responsibilities should you voluntarily admit an impairment and go into the voluntary recovery program? NO
I tell my clients that unless until you are unable to safely perform your profession, as a medical professional you should never admit an impairment and/or an inability to practice safely. Admitting these fundamental facts could, in the long run, substantially impact your career.
Pennsylvania’s appellate courts are pushing back against the health related boards forcing and pushing practitioners in the PHMP drug and alcohol mandatory monitoring program. For a long time Pennsylvania’s health related boards scare professionals into admitting an impairment an inability to safely practice their profession to save their license. For many professionals, the PHMP, PHP, PNAP SARPH program was not legally or medically necessary and its restrictions too great.
The Courts are remind the boards and the experts they hire that if the license professional practices safely and there is no evidence of patient impact or safety issues, the Commonwealth cannot meet its burden of proof in these impairment cases.
In my recent case, my client plead guilty to two separate DUI offenses. One DUI was for drugs and one DUI was for alcohol. Both abuses stemmed from a medical injury and a psychiatric condition. In criminal court, the professional admitted his need for inpatient treatment. He was sentenced to county drug court, with 45 weekends (90 days) in custody. He was paroled to a drug treatment court, county certified halfway house in which he lived for two years.
The Petition for a Mental and Physical was filed while he was serving his weekend sentences. The Board expert’s report stated the obvious, he was impaired and needed monitoring. My client had nothing to lose. The Board would not offer his credit for time clean and on drug court. So, we fought the case.
Procedurally, we rejected a settlement agreement and waited for formal disciplinary action. That was the settlement offer — enrollment in the DMU. We waited for a hearing to be scheduled. My client remained clean, compliant with treatment conourt conditions, and was a model treatment court advocate. He was employed for the half-way house.
At the hearing, we presented proof of 36 months of negative drug tests and excellent employment references. Significantly, the professional was a nursing burn specialist. He remained employed throughout the entire course of the criminal case defenses, while serving his weekend criminal jail sentence, and living in a halfway house. He was given work release as well. As with every medical professional that fights the impairment prosecution, he remained employed while preparing for the Mental and Physical Evaluation, waiting for disciplinary action to be filed, a hearing scheduled, and the recent decision.
This is the employment history I introduced into the hearing record. The Hearing Examiner thought it was exceptional that throughout my client’s pending criminal cases his employer wanted and allowed him to keep working. The job references were stellar. The Board expert had to agree.
The decision recited these key factors that the Nursing Board’s expert conceded on the witness stand. The expert could not testify that my nurse client was unsafe to practice his profession. The expert also conceded 36 months of negative drug screens revealed the alcohol and drug use disorders were in full sustained remission.
The hearing examiner concluded the Commonwealth did not meet its burden of proof. The Commonwealth could not establish an ongoing, continuing alcohol, drugs, or medical condition that impaired my nurse clients ability to practice his profession. As well, The hearing officer credited my nurse’s employment references, annual job evaluations, and employer testimony come to conclude that he was, in fact, safe to practice.
Absent these two crucial elements in the Commonwealth’s case in chief, my nurse client is not required to go into the PHMP, PNAP monitoring program. This case is a perfect example of why medical professionals should never admit an impairment or inability to practice their profession. The time delay between criminal charges, mental and physical evaluations, and a formal hearing allows the medical professional to organize their life, prepare their defense, and successfully fight their case.
Call me to discuss.

Medical Licensing Board Impairment Prosecutions — The Proper Burden of Proof

I defend hard medical professional impairment prosecutions.  In every Pennsylvania impairment prosecution the licensing board prosecutor must prove that the licensee is unable to safely practice their profession due to a physiological or physiological dependence on alcohol or drugs. The statute governing these types of cases is 63 P. S. §224(a). This is a very high burden.  I recently won the case of Pennsylvania Nursing Board v. Thim on this exact issue.

In this case, the Board prosecutor did not meet their burden of proof.  The Commonwealth’s expert, Pogos Voskania, did not, and could not, diagnose Thim as suffering  from ongoing physiological or psychological dependence on drugs or alcohol. Voskanian tried to connect a bunch of disconnected alcohol use facts into an expert opinion of impairment.  However, on cross examination Voskanian conceded that Thim was an excellent nurse.  He could not diagnosis her with any type of medical diagnosis.

Voskanian did not identify other criteria upon which he based his diagnosis that Thim suffered from an alcohol use disorder.   Voskanian acknowledged that psychological dependence on alcohol is not a disorder identified in the DSM-V. More importantly, Voskanian conceded Thim was competent to practice nursing on the date he testified. Voskania considered it his duty to recommend monitoring for those individuals who evidenced a problem with drinking, “even if they didn’t kill anybody yet” . Although Thim “may be fine,” monitoring was required because of the risk “that an event can take place.”  Dr. Voskanian considered the future risks of Licensee’s behavior, her long history of alcohol use, and her minimization of that use, and came to the conclusion that, based on his professional judgment, monitoring was required. 

The appellate court ruled Voskanian’s opinion testimony was not supported by the factual record.  Absent a medical diagnosis, the Board’s decision stating there was a medical condition was not based upon the factual record. The Hearing Examiner merely accepted Dr. Voskanian’s opinion that Licensee suffered from an alcohol use disorder. For its part, the Board adopted the Hearing Examiner’s findings of fact and conclusions of law, and its Final Adjudication and Order provides no more illumination on this subject than does the Hearing Examiner’s proposed resolution.

My client had some alcohol use issues. However, the appellate court found, Voskanian improperly magnified her alcohol use history to suggest a psychological or physiological dependence on alcohol. Cross-examination of Voskanian led him to concede Thim was safe to practice her profession, was an excellent nurse, and her alcohol issues never boiled over into her professional life.

The appellate court also looked to Thim’s references from managers and supervisors who testified at a hearing about her excellent professional capabilities and reputation.   In light of overwhelming evidence that Voskanian’s testimony was a fabrication, the court ruled

“absence of unequivocal testimony that licensee has a psychological dependence on alcohol, the Board’s finding to the contrary is, at best, baffling.  As the department failed to demonstrate Play since he has a psychological or physiological dependence on alcohol, the boards determination that she is not safe to practice nursing simply can not stand.”

Please call me to discuss your Mental and Physical Evaluation, PNAP Letter of Concern, and Order to Show Cause trying to force you into the DMU and the PHMP.

CHRIA – Expungements, Convictions, License Applications

The Pennsylvania’s Criminal History Record Information Act (CHRIA) 18 Pa.C.S.A. § 9124 controls how public and private entities use Pennsylvania criminal arrest and conviction records. CHRIA controls how Pennsylvania’s licensing boards may use prior criminal convictions in application and disciplinary matters. CHRIA also governs Pennsylvania’s expungement process. CHRIA allows private lawsuits for illegal dissemination of expunged criminal histories. Two recent developments involving CHRIA are noteworthy.

On May 22, 2019 House Bill 1477 of 2019 was introduced in the Pennsylvania Generally Assembly. This bill seeks to amend section 9124(a) of CHRIA. The amendment seeks to limit Pennsylvania licensing board’s ability to refuse, grant, renew, suspend or revoke any license, certificate, registration, or permit based upon a criminal conviction that does not relate to the applicant’s suitability for such license. This is huge. No longer will a conviction be an automatic bar to licensure.

If a felony or misdemeanor conviction does relate to the trade, occupation or profession for which the license, certificate, registration or permit is sought, the applicant is now permitted to establish sufficient mitigation, rehabilitation, and fitness to perform the duties of the trade. This precludes any automatic application license rejection or disqualification.

The amendment, if adopted into law, will allow applicants to rebut any adverse presumption and show rehabilitation. The Boards must consider the criminal act, nature of the offense, age, maturity since the date of conviction, any prior criminal history, or lack thereof, length of current employment, participation in education and training, and other employment and character references. This clean slate provision allows for applicants with a criminal history record to petition the board for a preliminary decision of whether a prior criminal record would disqualify the individual from receiving the licensure.

On a separate front, on May 28, 2019 a federal jury determined damages against Bucks County for its 2011 online inmate look-up service. In 2016 a federal judge ruled the on-line service will illegal, violating the 2011 version of CHRIA. The jury verdict focused on the damages Bucks County’s CHRIA violation caused. Between 1998 and 2011 the on-line look up tool produced criminal histories of approximately 67,000 inmates. However, many of these inmate’s criminal cases were dismissed and expunged. The federal judge found that Bucks County was disseminating criminal histories of individuals whose criminal records were expunged. The jury awarded $1000 in damages to each inmate whose information was improperly disseminated on the website. The total jury award was $67 million.

This is an important case. It reflects a governmental body acting intentional and deliberate in violating Pennsylvania residents’ privacy rights. Bucks County was determined to be not following Pennsylvania law. Its conduct was determined to be willful and in reckless disregard and in different to the inmates’ privacy rights.

This case and the Clean Slate public policy prerogatives reflect the economic changes in the air. Economic equality starts with criminal expungements and privacy rights. Full and fair employment opportunities provide financial security and stabilize our community. When people are able to get jobs, secure professional licenses, and become more productive members of society, domestic violence is reduced, crime is reduced, drug use is reduced, self-worth is increased and family values and protection of our children is increased. Call to discuss your health care related license application.

Disorderly Conduct — Moral Turpitude — Commonwealth Court Decides

Today the Commonwealth Court issues another remarkable decision involving a Pennsylvania medical professional.  Dunagan v. BPOA, 2019 WL 155879, is the third case in a row in which a Commonwealth Court panel has found a Pennsylvania medical related board engaged in an erroneous interpretation of the law and abuses its discretion.
In 2015, Dunagan was arrested and charged with three Drug Act violations and one Disorderly Conduct offense.  The charges stem from a police investigation that revealed Dunagan possessed a small amount of drugs and drug contraband.  The Disorderly Conduct offense is based upon Dunagan’s behavior during the search warrant execution. Dunagan’s criminal defense attorney negotiated dismissal of the Drug Act offenses and a guilty plea to the Disorderly Conduct offense.  This is a great legal tactic.  A medical professional who pleads guilty to a Drug Act violation is subject to an automatic one year license suspension and forced PHMP/DMU enrollment.  Dunagan’s plea avoided this result.

 

Dunagan properly reported her arrest to the BPOA.  Observing Drug Act offenses, a Nursing Board prosecutor filed an Order to Show seeking discipline Dunagan for her misdemeanor Disorderly Conduct guilty plea.  Ordinarily, Disorderly Conduct – charged either as summary offense or a misdemeanor –  is not a trigger for disciplinary action.  However, the Board prosecutor, with the support of his supervisors as a policy decision, subversively sought to discipline Dunagan for her drug related criminal conduct – not really the Disorderly Conduct offense to which she plead guilty.  This is outrageous.
Before the hearing examiner and Nursing Board, the prosecutor argues discipline should be based all facts of the criminal charges, not just the Disorderly Conduct behavior.  This is more facts than those essential elements of the Disorderly Conduct offense.  The prosecutor also maintains the facts giving rise to Dunagan’s guilty plea constitutes “a crime of moral turpitude” to which the Board may exercise its discretion and discipline Dunagan as it wishes.

 

The Hearing Examiner, rejecting this position, rules Disorderly Conduct is not a crime of moral turpitude and dismisses the Order to Show Cause.  The Board rejects the Hearing Officer’s Proposed Adjudication, finding Dunagan’s tumultuous behavior in the execution of a search warrant is a crime of moral turpitude.  The Board suspends Dunagan’s license for six months.

 

Obviously the decision is based upon the drug offenses that were dismissed and to which the Board could NOT force Dungan into the DMU/PHMP or automatically suspend her license under the Drug Act and CHIRA.
Dunagan appeals.  The Commonwealth Court reverses the Nursing Board decision.   The appellate court reviews much case law and facts and concludes Dunagan’s conduct resulting in a Disorderly Conduct guilty plea cannot and does not constitute moral turpitude.  The Court states

 

“A determination of whether a crime involves moral turpitude will be determined based solely upon the elements of the crime. The underlying facts or details of an individual criminal charge, indictment or conviction are not relevant to the issue of moral turpitude.” 22 Pa. Code § 237.9(b); see also Startzel v. Department of Education, 562 A.2d 1005, 1007 (Pa. Cmwlth. 1989) (“Determination of whether a crime involves moral turpitude turns on the elements of the crime, not on an independent examination of the details of the behavior underlying the crime.”).

 

The Court rules a six month professional license suspension is 1) an abuse of discretion, 2) a guilty plea to a Disorderly Conduct offense is neither a crime of moral turpitude nor a basis to suspend or revoke a professional licensees license, and 3) citing her need to earn a living and work – that the case facts are not health related  — there is no justifiable necessity to protect the public from her conduct.
This case reveals the extreme prosecutorial environment in which all Pennsylvania licensees now practice. Medical marijuana is the prime influencer of this case. Many Drug Act possessory offenses result in either original charges of Disorderly Conduct or evolve into a guilty plea to a Disorderly Conduct offense. A summary Disorderly Conduct offense is not a conviction under the Drug Act. As a result, Pennsylvania’s health related boards are not able to automatically suspend a license or commence disciplinary process predicated on a drug possessory offense.

 

BPOA prosecutors tried to secure Commonwealth Court case law stating a summary offense, whether a crime of moral turpitude or not, is a valid discretionary basis to suspend and discipline a medical related board licensees license.  The Commonwealth Court said no.
More importantly, at the Board hearing the attorney did not properly protect the record. I have written that factual allegations contained in an Order to Show Cause can only be those related to the criminal convicted charges, not allegations that are dropped or dismissed. Facts related to  dismissed, withdrawn, or not guilty charges are not relevant or admissible in any disciplinary prosecution.
This attorney did not object to a whole set of irrelevant and inadmissible facts.  Or the licensee simply testified about everything that happened on the date and time of her arrest. This placed those facts in the record for the Nursing Board to consider. It did consider the entire case facts, knew the case was about drugs, and suspended her license.  Both the legal strategy and Board conduct was improper. Call me to discuss your case.

Disclosing a Criminal Conviction on a Licensure Application — Part 2

In my last blog I wrote about real estate applicant who failed to disclose on his Real Estate Commission application a criminal conviction. Upon discovery the Commission revoked his license and the Commonwealth Court approved of the action. Today’s blog involves the exact opposite result for one of my physician clients.

On October 14, 2014 Dr. Christopher Elder, a Texas licensed physician, submitted an application to Pennsylvania’s Medical Board for a license to practice medicine and surgery. Unlike Hawes, Elder disclosed a 2010 federal conviction for aiding in abetting and conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. On April 2, 2015 the Pennsylvania Medical Board provisionally denied Elder’s application. The Board maintained the Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), authorized licensure denial because of Elder’s felony conviction. The Board also denied licensure, maintaining Elder lacked good moral character and did not possess the requisite training and experience.

Elder appealed the conditional denial of licensure. At the hearing before a the Hearing Officer Elder presented his credentials, training and experience, the facts of the criminal case, and character evidence. Consistent with prior Pennsylvania Supreme Court precedent, Elder maintained the criminal conviction was too remote for the Board to determine such affected his current ability to do his job lawfully. Elder’s mitigating evidence established his minor role in the criminal case and his rehabilitation since release from prison.

The Hearing Officer weighed Elder’s witness’ credibility and Elder’s mitigating evidence. He ruled in Elder’s favor, stating that while Elder’s criminal conduct demonstrated moral turpitude at the time of its commission, Elder presented persuasive evidence of his rehabilitation and present moral fitness to practice medicine. A period of probation was required to allow Elder the ability to secure appropriate supplemental educational classes for competency.

The Medical Board rejected the Hearing Officer’s proposed adjudication. The Board determined Elder’s explanation of his crime displayed a lack of remorse and acceptance of responsibility, that Elder still lacked the moral turpitude to be a doctor in Pennsylvania, and lacked the educational qualifications. Elder appealed, maintaining the Board’s decision was arbitrary and capricious in light of the competent, uncontested character evidence and age of the criminal act.

Commonwealth Court agreed with Elder. For the second time in as many months, the Court took a Pennsylvania licensing board out to the wood shed and gave it a stern whipping. The Court emphasized that Boards must look at the age of the crime as it related to current fitness. Remote, past dereliction, must be considered where an agency seeks to revoke a professional license on the basis of a criminal conviction. Secretary of Revenue v. John’s Vending Corporation, 453 Pa. 488, 309 A.2d 358 (1973).

The Court explained that “where the prior convictions do not in anyway reflect upon the [applicant’s] present ability to properly discharge the responsibilities required by the position, we hold that the convictions cannot provide a basis for the revocation of a … license.”

For Elder I determined he must present a clear explanation of the criminal enterprise accompanied by extensive mitigating evidence. The Board was dismissive of Elder’s mitigating evidence, stating that “[r]ather than to take responsibility and express remorse for his criminal misconduct during his testimony, [Elder] attempted to minimize his role.” Elder responded that such did not minimize his criminal conduct but explained his role in the underlying conspiracy, which the Board misconstrued as a collateral attack on his conviction. Elder directs the Court to Nguyen v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 53 A.3d 100 (Pa. Cmwlth. 2012).

The Commonwealth Court reviewed the entire record, the Federal Court sentencing transcript, the 8th Circuit Court of Appeals decision, and each witness’ testimony of Elder’s character and rehabilitation. The Court emphatically states:

The record does not support the Board’s assertion that Elder failed to express remorse or to take responsibility for his criminal conduct. At the hearing, Elder stated that he was “really” and “deeply” remorseful and he “absolutely accept[s]” responsibility.” He presented witnesses to attest to his remorse. The Board did not explain how this testimony was inadequate or what else Elder could have said. Elder’s attempt to place his criminal conduct into context and explain his role in the conspiracy does not demonstrate a lack of remorse or rehabilitation, as the Board presumed. The Board simply made a subjective determination that was contrary to that of the Hearing Examiner, who directly observed Elder and his witnesses, and accepted his evidence on remorse.

We hold that the Board erred and abused its discretion in reaching the conclusion that Elder does not have the present moral character required for a license. Elder’s crimes were committed over 14 years ago and were isolated to a single episode in his life. He has served his sentence. The Board erred by categorizing Elder’s evidence as not accepting responsibility when he was simply explaining his role in the conspiracy. The Board’s conclusion on Elder’s moral character cannot be reconciled with John’s Vending, 453 Pa. 488, 309 A.2d 358, or Nguyen, 53 A.3d 100. It did not take into account its own findings that Elder’s conduct since 2004 has been not only free of criminal conduct but dedicated to significant volunteer and public service activities.

In reversing the Board and instructing it to grant licensure, the Commonwealth Court determined the Medical Board sanction was a “manifest and flagrant abuse of discretion and purely an arbitrary execution of the agency’s duties or functions.” This is an amazing Commonwealth Court conclusion. Elder disclosed his federal criminal conviction for conspiracy to illegally distribute drugs. Elder set forth his long road to redemption, of rehabilitation, and his true character. The Court, a court of law, not the quasi-legal self-protecting Medical Board, looked at the facts – which mattered — and granted licensure.

Long hard preparation of this case won the day. My methodical approach to making a clear record of personal character recovery, redemption, and rehabilitation, could not be ignored. This cases reveals that proper presentation, preservation of the record, and coordination of witness is paramount to success. Call me to discuss your case.

Professional License Applications – Convictions – The Cover Up is Worse than the Crime

Professional license applications require potential licensees disclose prior criminal convictions or open criminal cases. Current licensees seeking an additional license must also answer these questions. This self reporting obligations establishes a base level of honesty, ethics, and moral turpitude Pennsylvania’s licensing boards expect from their licensees.

Board investigations of licensee’s criminal record (disclosed or not) takes time.  In May 2013 Bryan Hawks applied for a real estate sales person license. He stated he did not have a criminal record. However, in April 2004 Hawes plead guilty in federal court to two counts of mail fraud.  He was sentenced to jail and supervised release.
In 2017 Hawes’ false answer on the Real Estate Commission application was discovered. Real Estate Commission prosecutors filed an Order to Show Cause for discipline, a hearing took place, and on May 11, 2018 the the Commission revoked Hawes’ license concluding it was secured by fraud and deceit.  Hawes appealed to the Commonwealth court, claiming the Commission abused its discretion. Haws claimed the documents upon which the Real Estate Commission relied were not competent evidence.  Hawes produced a Pennsylvania State Police criminal background check showing no criminal record.
The Commonwealth court rejects Haws’ contention, determining Hawes’ $2 million dollars of fraud related restitution precluded Hawes from a reasonable basis to believe he did not possess a prior criminal record. Hawes’ obligation to truthfully and honestly answer the application’s criminal history inquiry is paramount to his fitness to hold the license. The Court explicitly emphasizes a conviction for federal mail fraud disqualifies Hawes from receiving a real estate license. The Court affirms the Real Estate Commission’s obligation of protecting the public and the integrity of the profession.
The court also concludes a federal criminal conviction obviously is a conviction subject to disclosure and Hawes’ failure to disclose such is knowing, intentional, and a fraudulent violation of section 604A of the Real Estate Commission Act.   The Act, 63 P.S. § 455.522(a), requires an potential realtors to include such information of the applicant as the Commission shall require. Truthful and complete responses in conjunction with an applicant swearing that the information is true and complete allows for license revocation based upon an applicant’s failure to disclose facts relevant towards consideration of his license.
As with all disciplinary actions, Hawes presented mitigation evidence regarding the performance of his duties as a realtor. Mitigation evidence included no complaints regarding his conduct as a licensee, his reputation in the community for being honest and trustworthy, and that he did not act in bad faith or with dishonesty in connection with any real estate license transaction.
Commonwealth Court rejected this mitigation evidence and affirms the Real Estate Commission’s decision because Hawes obtained his license by failing to disclose his prior felony conviction. Haws failure to disclose a felony conviction is a very serious offense,  akin to acting with dishonesty and a lack of moral turpitude. Hawes took away the Commission’s opportunity to protect the public and examine whether Hawes would have received a license in the first place.  Because Hawes’ omission in disclosing his federal felony conviction and jail sentence constituted a false representation of which could not reasonably believe as true, the evidence before the Real Estate Commission was appropriate and the Commission acted within the scope of its authority under the enabling rules and statutes.
The moral of this case is quite simple. Be truthful honest and provide full and complete disclosure of any prior criminal convictions or pending criminal cases on every license application. Failure to do so will result in the license revocation upon discovery by any licensing board. Please call to discuss your license application and proper disclosure and explanation of any prior criminal offenses.
%d bloggers like this: