Your Medical Practice and DEA Investigations

A federal criminal target letter from a local United States Attorney notifies a potential defendant that they are the “target of” an FBI, DEA, or other governmental agency criminal investigation. Target letters say “you are the target” and place the recipient on notice to hire an attorney.

Recently, a medical practitioner brought me a new letter.  This letter notified him that his practice was now under federal criminal investigation. It was not a target letter, per se, but a letter asking him to meet.  I was amazed.

The letter stemmed from a 2017 DHS administrative subpoena for medical records for a small subset of that physician’s patient files. The DEA subpoenaed specific patient files based upon patient’s DEA records indicating they had received a substantial number of controlled substance prescriptions. The DEA learned this information through a computer search of this physician’s prescribing patterns, pharmacy dispensing patterns, and actual patient received controlled substance prescriptions.  The DEA then subpoenaed the medical records to see if the doctor had a medical basis to write the prescriptions the database revealed.  Doctors have become the targets of the opioid crisis.

After the physician produced his records the DEA submitted the medical records to their expert physician. This is when something unusual happened.  The US Attorney took the time to notify the physician the expert concluded the physician’s prescribing pattern, quantity, and frequency of controlled substance prescriptions served no legitimate medical purpose in the usual course of professional practice. His medical practice for that small set of patients was criminal in nature.

The US Attorney did not simply indict the doctor.  The government identified to the doctor the numerous deficiencies and violations of standards in the physician’s prescribing practice:

  1. The physician was prescribing high-dose opioids frequently with benzodiazepines;
  2. The medical records did not identify a medical condition justifying the prescribing;
  3. The physician failed to document changes in prescribing patterns between patients with changing medical conditions;
  4. The physician failed to document increase in benefit to the patient from the opioid treatment and failed to provide alternate treatments;
  5. The physician failed to stop prescribing Opioids after proof of failed drug screens:
  6. The physician failed to stop prescribing opioids when no drug screens were performed;
  7. The physician failed to stop prescribing opioids to patients with positive drug test for alcohol, other opiates and benzodiazepines;
  8. The physician prescribed controlled substances without performing any physical examination;
  9. The physician prescribed controlled substances without a patient treatment plan, or inadequate treatment plans;
  10. The physician prescribed controlled substances to patients with no confirmed diagnosis of a medical condition;
  11. Patient records were inadequate, missing, or unreadable or did not have current medication or diagnosis notated in the file;
  12. Many files did not possess updated Pennsylvania prescription drug monitoring program reports

Amazingly this United States Attorney told the physician his medical records reflected in extraordinary pattern of distributing controlled substances while failing to satisfy relevant standards under the Controlled Substances Act and the False Claims Act. The physician was put on notice that the Controlled Substances Act and it’s implementing regulations require prescriptions be issued for legitimate medical purposes by any individual practitioner acting in the usual course of his profession. 21 CFR 1306.04(A).

If a prescription is issued but fails to satisfy those standards to prescription, it is not valid under 21 USC § 842(a)(1), 21 USC § 829(a). These violations provide for a civil penalty under 21 USC § 842C1A of not more than $25,000 per prescription or no more than a total of $64,820 for all violations after November 2, 2015. The physician was also notified that if Medicare paid for any of the prescriptions under a federal healthcare program, the physician was subject to False Claims Act triple damages under 31 USC § 3729.

This doctor was invited him to come and talk to the United States attorney and the Department of Justice about this letter and the 12 files in question.  Most importantly:

  1. the doctor was not yet indicted;
  2. his entire office files were not seized;
  3. his personal and business assets were not subject to civil forfeiture claims
  4. his personal and business assets were not frozen
  5. he was not forced to surrender his DEA prescribing Authority as a bail condition over a holiday weekend;
  6. he was not emergently charged by the Pennsylvania Medical Board;
  7. and he not in jail.

My other clients have not been as fortunate to receive, while intimidating, such an explicit letter.  This doctor was invited to talk to the United States Attorney and the Department of Justice about this letter.  If you have received a letter similar to this please call me to discuss your options.

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.

Reckless Prescribing and State Criminal Prosecution for Manslaughter

Every day medical practitioners confront complex and serious medical cases.  Patients and their doctors face death every day of the week. In this opiate use and abuse environment, death is one pill, snort, injection, toke away. Prosecutors have been turning to the distributors of the drugs that are killing our nation’s children, mothers, sisters, fathers, and brothers.

 

In one hand federal prosecutors are targeting the drug makers.  In the other hand, state and federal prosecutors are now targeting physicians whose care presents a conspicuous disregard of a substantial and unjustifiable risk of death.  Now, when patients die, the autopsy results are turned over to prosecutors who seek to unjustly and prematurely crucify every physician whose pain prescriptions may be part of a patients ultimate demise.

My last blog discussed federal mandatory minimum sentence enhancements for physicians convicted of violating federal drug laws which violations directly (medically) cause a patient’s death.  These physicians are exposed to mandatory minimum 20 years of incarceration.  That case discussed the United States Supreme Court case that defined medical causation in a federal criminal setting under specific death by prescribing statutes.Federal Mandatory Minimums in Prescription Death
The state courts and legislatures are also getting a piece of this action.  A recent New York Court of Appeals holding concludes doctors can face homicide charges, in certain circumstances, if the drugs they prescribed are used by one of their patients during a fatal overdose on the medication. Here the issue was the doctor was not charged under the prescription death criminal charge.  Rather, he was charged under a homicide manslaughter statute that did not include a requisite clear causation proof.  NY State Case: People v. Li — November 2019

 

At issue in the Li case is the NY State definition of recklessness:“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when [that person] is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]).

 

A conviction for reckless manslaughter “require[s] that there be a substantial and unjustifiable risk’ that death . . . will occur; that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant’s conduct amount to a gross deviation’ from how a reasonable person would act” (People v Asaro, 21 NY3d 677, 684 [2013], quoting Penal Law § 15.05 [3]). The conduct must be “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” (Asaro, 21 NY3d at 685 [internal quotation marks and citation omitted]).

The extreme facts of the case are important.  The physician’s office was only open one day a week, on the weekend, and did not require appointments. The doctor saw as many as 90 patients in a single day, charging $100 cash per visit.  The doctor did not verify the source of the patients’ pain complaints and conducted little to no physical examination of the patient.

 

Thereafter, the doctor prescribed heavy doses of whatever medication the patient requested. Certain patients were given prescriptions for a combination of medications that should not have been prescribed together. The jury convicted the physician of manslaughter after two patients died of opioid overdoses.

 

When the patients died, an investigation commenced focusing on the physician’s charting and prescription writing habits.  Current state of prescription drug monitoring programs and federal DEA prescription writing history for every physician in the country allows prosecutors to conclude whether or not a physician acted with reckless disregard of the substantial and unjustifiable risk that his prescription practices could result in an overdose or medical related death.

The physician argued he did not have the requisite mens rea (Latin for specific mental intent) to act recklessly against his patient’s safety because the drugs as prescribed would not have resulted in death if used as directed. The physician argued this that he could not have known either patient would abuse the medications.
The New York Court of Appeals rejected this argument under the facts as patently absurd.  “It is a direct and foreseeable result of defendant’s reckless conduct “that extra prescriptions or the copious amount of prescriptions written for each patient” obviously suggested the patient was not taking the medications as directed and, thus, it was reasonably foreseeable that the patient was abusing the prescriptions.”
The New York Court of Appeals did not limit It’s ruling to the facts of this specific case. In affirming the manslaughter conviction, the court affirms the proposition that physicians must comply with their prescribing responsibilities, state law on appropriate therapeutic parameters for prescribing controlled substance, and practice their profession responsibly and ethically.
The new burden of proof for criminal prosecution is recklessness in a physician’s prescribing of various medications that, when interacting together, can be said to be reasonably foreseeable to cause death.  In the context of physicians that write to many prescriptions for scheduled controlled substances in the absence of objectively verified medical conditions and conservative prescription writing practices, local prosecutors offices will be investigating that position.

Federal and State Prescription Fraud

Some of my blogs are extremely dense.  This and the next several blogs focus on the intersection of  federal and state criminal statutes and regulations concerning illegally written prescriptions and the potential criminal consequences.

Federal criminal statutes are intentionally written extremely broad.  Title 21, United States Code, Section 841(a)(1) is the Federal Drug Act.  Typically used for drug dealers, this provision is the tool federal prosecutors use to criminally charge physicians who improperly write prescriptions for controlled substances that are not medically necessary.  The language of the federal criminal statute is quite simple.

Title 21, United States Code, Section 841(a)(1), provides that “[e]xcept as authorized by this subchapter, it shall be unlawful for any person to knowingly or intentionally manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance.”  Title 21, United States Code, Section 802(10), provides that the term “dispense” means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling or compounding necessary to prepare the substance for delivery.

Section 821, provides that “[t]he Attorney General [of the United States] is authorized to promulgate rules and regulations …relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances.”   21 Code of Federal Regulations § 1306.04, governing the issuance of prescriptions, which provides, among other things, that a prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. Moreover, an order purporting to be a prescription issued not in the usual course of professional treatment is not a prescription within the meaning and intent of section 309 of the Act [21 U.S.C. § 829] and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the law relating to controlled substances.

The Pennsylvania Code of Professional and Vocational Standards, Title 49, Chapter 16.92, defines the authority of physicians licensed by the Commonwealth of Pennsylvania to prescribe or dispense controlled substances. Chapter 16.92 provides in pertinent part:

(a) A person licensed to practice medicine and surgery in this Commonwealth or otherwise licensed or regulated by the Board, when prescribing, administering or dispensing controlled substances, shall carry out, or cause to be carried out, the following minimum standards:

  • Initial medical history and physical examination….. [B]efore commencing treatment that involves prescribing, administering or dispensing a controlled substance, an initial medical history shall be taken and an initial examination shall be conducted unless emergency circumstances justify otherwise. Alternatively, medical history and physical examination information recorded by another health care provider may be considered if the medical history was taken and the physical examination was conducted within the immediately preceding thirty days. The physical examination shall include an evaluation of the heart, lungs, blood pressure and body functions that relate to the patient’s specific complaint.
  • Among the factors to be considered in determining the number and the frequency of follow-up evaluations that should be recommended to the patient are the condition diagnosed, the controlled substance involved, expected results and possible side effects. For chronic conditions, periodic follow-up evaluations shall be recommended to monitor the effectiveness of the controlled substance in achieving the intended results.

 

  • Patient counseling. Appropriate counseling shall be given to the patient regarding the condition diagnosed and the controlled substance prescribed, administered or dispensed. Unless the patient is in an inpatient care setting, the patient shall be specifically counseled about dosage levels, instructions for use, frequency and duration of use and possible side effects.

 

  • Medical Records. [C]ertain information shall be recorded in the patient’s medical record on each occasion when a controlled substance is prescribed, administered or dispensed. This information shall include the name of the controlled substance, its strength, the quantity and the date it was prescribed, administered or dispensed to a patient. The medical record shall also include a specification of the symptoms observed and reported, the diagnosis of the condition for which the controlled substance is being given and the directions given to the patient for the use of the controlled substance. If the same controlled substance continues to be prescribed, administered or dispensed, the medical record shall reflect changes in the symptoms observed and reported, in the diagnosis of the condition for which the controlled substance is being given and in the directions given to the patient.

When the federal law is read in conjunction with Pennsylvania’s Code governing appropriate medical practices, prescriptions written without a medical basis or therapeutic need but for which the physician bills federal, state, or private insurance companies for both visits and reimbursement, the physician is exposed criminal liability. The criminal liability is both for insurance fraud and violation of the federal drug act.

As a doctor of medicine, physicians are authorized to dispense to patients Schedules II, III, IV and V controlled substances and to prescribe medicine to patients, including controlled substances, for legitimate medical purposes and in the usual course of professional practice.

Call to discuss any federal criminal target letter or indictment.

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

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.

Pennsylvania Attorneys and their Disciplinary Process

My licensure defense practice includes representing attorneys facing disciplinary process in Pennsylvania. Attorneys licensed by the Pennsylvania Supreme Court – whether practicing in Pennsylvania or not – are subject to discipline the same as other Pennsylvania licensees. Criminal conduct and egregious unethical conduct expose attorneys to prosecution for violating the Rules of Professional Conduct.

Attorney discipline in Pennsylvania’s attorney regulatory system is more complex that other licensees. The Disciplinary Board of the Supreme Court of Pennsylvania is the court in the Supreme Court in which disciplinary actions are filed. The Pennsylvania Rules of Professional Conduct govern the practice of law in the Commonwealth. These Rules set forth the minimum ethical standards for the practice of law and constitute a set of Rules that all attorneys must follow. These Rules were originally promulgated by the Supreme Court of Pennsylvania on April 1, 1988.

The Pennsylvania Rules of Disciplinary Enforcement is the administrative process through which Supreme Court disciplinary actions are filed, hearings, held and appeals prosecuted. These Rules establish the attorney disciplinary system in Pennsylvania and set forth a broad set of procedural Rules governing attorney discipline. These rules were originally adopted by the Supreme Court in November 1972.

Disciplinary Board Rules and Procedures supplement and implement the Rules of Disciplinary Enforcement, and govern proceedings before the Disciplinary Board. These Rules are promulgated by the Disciplinary Board. This is the main difference between attorney disciplinary matters and other licensed professionals. Where the Bureau of Professional and Occupational Affairs (BPOA) handles all other licensee discipline, the Pennsylvania Supreme Court supervises and disciplines attorneys.

Almost all other aspects of attorney disciplinary matters are similar to that of other licensees. The supreme court issues orders of prosecution to which attorneys must respond to the Prothonotary with all official filings. Disciplinary board council must be copied on all pleadings filed with the court.

Criminal convictions, not arrests, trigger Supreme court investigations and disciplinary action. Routinely Board prosecutors emergently file Orders to Show Cause to suspend attorneys license to practice law. There are much shorter time periods for attorneys to respond to disciplinary filings.

Orders to show cause why in attorney’s license should not be suspended for a criminal conviction in either of the Commonwealth of Pennsylvania, federal court, or any other jurisdiction must be immediately addressed. Lack of extra jurisdiction disciplinary prosecutions will not forestall the Pennsylvania Supreme Court from commencing it’s own independent disciplinary action.

Learning about and cooperating with prosecutors from the Pennsylvania Disciplinary Board is important. Typically these attorneys are former prosecutors and, as attorneys themselves, seek to protect the profession from attorneys who engage in unethical and illegal conduct.
Theft of client funds and improper use of attorney trust account money will always trigger emergent prosecutions. Impairment prosecutions against attorneys caught using drugs, driving under the influence, or even showing up in court impaired are real, frequent, and as rampant as other professionals. Attorneys also suffer from mental health issues, diagnosed or not, that may begin to greatly affect their practice, bleed over into their practice of law. Untreated mental health issues, illnesses, drug abuse, or alcoholism always translate into client complaints.

If you are an attorney in the Commonwealth of Pennsylvania please call me to discuss your potential or pending attorney disciplinary action.

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.
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