What is a “Conviction” – How Important is Drug Court to the Licensed Professional?

In 1999 Tim Kearney was issued his Pennsylvania physician assistant (“PA”) license. In March 2010 he admitted himself into a treatment facility for drug addiction issues.  On August 16, 2011 he plead guilty to the felony Drug Act violation –  securing a prescription by fraud.  At the time of his guilty plea, Kearney acknowledges he understood that by pleading guilty he was  “admitting to committing the criminal charge” as alleged under the Pennsylvania Drug Act.

In December 2011 the Pennsylvania Medical Board automatically suspended Mr. Kearney’s PA license for no less than 10 years pursuant to section 40(B) of the Medical Practices Act of 1985.  This provision requires the Board to suspend any licensee who suffers a felony conviction for violating any provision of Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act (CSA). 35 P.S. § 780–113(a)(12).

In December, 2011, Kearney filed in criminal court a petition to vacate his guilty plea and enroll in the county adult drug court program.  In June 2014, after 2 1/2 years in drug court, Kearney petitioned to vacate his guilty plea and dismiss the criminal case.   His request was based upon compliance with all terms and conditions of the program. On June 20, 2014 the county trial court dismissed all of Kearney’s criminal drug charges.  They were subsequently expunged. (This is really important.)

Six months later, in December, 2014, Kearney filed a Petition to Reinstate his PA license based upon the lack of criminal conviction, the expungement, and his extensive drug and alcohol treatment.  This blog discusses the Commonwealth Court opinion approving his petition and reversing the Medical Board’s refusal to reinstate Kearney’s PA license.  The case is found at Kearney v. Bureau of Professional and Occupational Affairs, — A.3d —- (2017).

The Pennsylvania administrative law hearing examiner denied Kearney’s Petition to Reinstate his PA license. The hearing examiner concluded Kearney’s admission of guilt in the guilty plea colloquy and statement before the presiding judge when the charges were dismissed constitute either a conviction or an admission of guilt pursuant to the Medical Practices Act.  The hearing officer determined Kearney satisfied his burden of proof that he was able to resume his PA practice with reasonable skill and safety to patients, subject to monitoring by the physicians health program.

The Medical Board agreed with the hearing examiner that Mr. Kearney’s PA license remained indefinitely suspended as a result of a “conviction” as defined by the Medical Practices Act.  It did not reach the PHP and monitoring aspect of the decision because it determined Kearney’s license was still suspended.

Kearney appealed to the Commonwealth Court, which reversed. The sole issue on appeal was whether Kearney’s original guilty plea (vacated and now expunged) constituted a conviction and his statements on the record constitute “admissions of guilt“ in accordance with section 40B of the Medical Practices Act.

Commonwealth Court reviewed the Medical Practice Act.  “The Act provides, in pertinent part, that “[a] license or certificate issued under this act shall automatically be suspended upon … conviction of a felony under the act … known as [t]he [CSA] ….” 63 P.S. § 422.40(b). Section 40(b) of the Act clarifies that “[a]s used in this section, the term ‘conviction’ shall include a judgment, an admission of guilt or a plea of nolo contendere.Id.; see also section 2 of the Act, 63 P.S. § 422.2 (defining “conviction” as “[a] judgment of guilt, an admission of guilt or a plea of nolo contendere.

  • Section 43 of the Act further states that “[a]ny person whose license, certificate or registration has been suspended or revoked because of a felony conviction under the [CSA] … may apply for reinstatement after a period of at least ten years has elapsed from the date of conviction.” 63 P.S. § 43.

While the Act provides for automatic suspension of a license for a felony “conviction” under the CSA, the Act incorporates the CSA by express reference. By all reasonable means, this compelled the Court to unify two or more statutes in a cohesive and consistent fashion and avoid interpreting one statute in a manner that repeals or is otherwise incongruous with another statute.

Under section 17 of the CSA, a trial court “may place a person on probation without verdict if the person pleads nolo contendere or guilty to any nonviolent offense under [the CSA] and the person proves he is drug dependent.” 35 P.S. 780–117. (This is a Section 17 plea.)

Importantly, that section also states that “[u]pon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him,” adding that the “dismissal shall be without adjudication of guilt and shall not constitute a conviction for any purpose whatever ….” 35 P.S. § 780–117(3) (emphasis added). Section 19 of the CSA further declares that records of arrest or prosecution under the Act will be expunged. When a court orders expungement, the records “shall not … be regarded as an arrest or prosecution for the purpose of any statute or regulation or license or questionnaire or any civil or criminal proceeding or any other public or private purpose.” 35 P.S. § 780–119(b).

As a surface matter, Commonwealth court observes that a plain reading of the statutes indicates that, while the Act includes an “admission of guilt” as a subpart of the definition of a “conviction,” the CSA commands that a final disposition of “probation without verdict” does not constitute a “conviction.” Under the procedure in section 17 of the CSA for a “probation without verdict,” an individual’s “plea” is, in essence, held in abeyance, or not accepted, until there is a final determination by the court as to whether the individual has satisfactorily completed the terms and conditions of probation; if the individual does so, the trial court dismisses the charges and there is no verdict or finding of guilt in the matter.

Consequently, in order to afford the phrase “for any purpose whatever” in section 17 of the CSA its full linguistic effect, the Court reasonably interpreted it to mean that the oral and written statements made to a trial court in connection with a “probation without verdict” cannot be a considered a “conviction” for purposes of section 40(b) of the Act. To be sure, this construction is the only way in which the term “conviction” in the Act can be harmonized with the same term in the CSA.

Indeed, following dismissal of the underlying charges, the criminal record is expunged pursuant to section 19 of the CSA, and the criminal record cannot be used at all in an administrative licensing matter – not even as proof that the individual  was arrested or prosecuted.  In some statutes, our General Assembly, without using the word “conviction,” has expressly included the phrase “probation without verdict” to describe the basis upon which a licensing board can refuse, suspend, or revoke a professional license.

However, the General Assembly did not insert this or similar language in the Act. Nor did   the General Assembly inject “probation without verdict” alongside “admission of guilt” in the Act’s definition of a “conviction.” Inferentially, the divergence in word usage among the CSA, the Act, and other similar statutes is indicative of the General Assembly’s desire to conceptually separate an “admission of guilt” from a “probation without verdict,” suggesting to courts that the two should not be perceived or linked as being one and the same.

On the whole, Commonwealth Court precedent has clearly concluded as much.   For example, in Carlson, a teacher entered a plea of nolo contendere to charges that he possessed drugs in violation of the CSA, a plea that has “the same legal effect as a plea of guilty in the criminal proceedings in which it is entered.” 418 A.2d at 813. The criminal case proceeded under the provisions of section 17 of the CSA, and the teacher eventually had his criminal record expunged. Although this Court was convinced that the school district properly dismissed the teacher for immorality pursuant to sections 1122 and 1129 of the Public School Code, Act of March 10, 1949, P.L. 30, as amended 24 P.S. §§ 11–1122 and 11–1129, we pointed to the special nature and characteristics of the CSA and the probation without a verdict mechanism.

More specifically, the Court explained that when the charges are dismissed following compliance with probation, “no judgment is entered, notwithstanding the fact that the defendant is placed on probation, an act which normally constitutes a sentence, i.e. a judgment.” 418 A.2d at 813. On this basis, we determined that evidence of the teacher’s plea of nolo contendere was inadmissible, and further reasoned that, as a result of the expungement, there was “no criminal record” upon which the trier of fact could determine that the teacher engaged in conduct of a criminal nature. Id. Accordingly, this Court held that the teacher could not be discharged from his employment with the school district as a matter of law.

The crisp and clean understanding of this case is that in any Medical Board supervised license case, for which disciplinary action is based upon a conviction that has been opened and erased due to Drug Court compliance, there is no conviction.  There is no basis to deny reinstatement of a license.  Whether the PHP gets involved is a different question.  This case merely, but forcefully, allows for eligibility for reinstatement once Drug Court is served, complied with, and all charges are dismissed and expunged.

Call me to discuss your case.

 

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Serious Medical Conditions according to Pennsylvania’s Medical Marijuana Law and How They Relate to Medical Professionals

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Pennsylvania began the legalization of medical marijuana with specific limitations on the medical conditions for which a practitioner can issue a prescription for medical marijuana (“MM”).   Act 16 of 2016, Section 403 (a) – Conditions for issuance – allows a physician to certify medical necessity only if all of the following requirements are met:

(1)  The practitioner has been approved by the department for inclusion in the registry and has a valid, unexpired, unrevoked, unsuspended Pennsylvania license to practice medicine at the time of the issuance of the certification.

(2)  The practitioner has determined that the patient has a serious medical condition and has included the condition in the patient’s health care record.

(3)  The patient is under the practitioner’s continuing care for the serious medical condition.

(4)  In the practitioner’s professional opinion and review of past treatments, the practitioner determines the patient is likely to receive therapeutic or palliative benefit from the use of medical marijuana.

The regulations define Serious medical condition as:

 (i) Cancer.
 (ii) Positive status for Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome.
 (iii) Amyotrophic lateral sclerosis.
 (iv) Parkinson’s disease.
 (v) Multiple sclerosis.
 (vi) Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity.
 (vii) Epilepsy.
 (viii) Inflammatory bowel disease.
 (ix) Neuropathies.
 (x) Huntington’s disease.
 (xi) Crohn’s disease.
 (xii) Post-traumatic stress disorder.
 (xiii) Intractable seizures.
 (xiv) Glaucoma.
 (xv) Sickle cell anemia.
 (xvi) Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.
 (xvii) Autism.

For the medical licensee seeking a medical marijuana card, the significance of these medical conditions cannot be understated.  A Pennsylvania medical licensee (nurse, doctor, dentist, and all others)  will have to suffer from a serious medical condition.  A referring medical marijuana practitioner  will have to certify the professional licensee’s serious medical condition necessitates marijuana for therapeutic or treatment reasons.  The practitioner will have to perform a completed and full assessment of the patient’s medical history and current medical condition, including an in-person consultation with the patient.  Reviewing the prescription drug monitoring history of that patient/licensee will also be necessary.

A MM practitioner will have to credibly determine that imminent disability is present, warranting therapeutic medical marijuana as all other drugs have or are failing.   Well, if the medical professional is disabled, they can not do their job.  If they are high on medical pot, the Boards think these licensees probably should not be permitted to practice their profession.

The burden of proof in disciplinary cases involving drugs or alcohol is whether the licensee suffers “from a drug or alcohol addiction or impairment or a medical condition that renders them incapable safely practicing.”  If a medical licensee’s MM practitioner suggests to the Department of Health the licensee is medically disabled to a degree that requires the therapeutic use of medical marijuana, a medical record has been generated stating the licensee is almost medical disability from practicing their profession. The medical impairment burden, it could be argued, has been met.

Conversely, if the medical licensee is prescribed medical marijuana (but not disabled), the use of medical grade marijuana renders the licensee under the influence of drugs or alcohol to such an extent that renders them in capable of safely practicing.  This logical reasoning jump  — using marijuana automatically renders one unsafe the practice — is found in other provisions of Pennsylvania law.  Those include the Drug act and Pennsylvania’s DUI statute.

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Pennsylvania’s DUI statute, 75 Pa. C.S.A. §3802(d) provides for legal intoxication if the mere presence of marijuana is in one’s bloodstream.  (Pennsylvania is not a drug recognition state where the prosecutor has to put into evidence testimony from a drug recognition expert, a “DRE”, that the level of marijuana in somebody’s blood renders them under the influence and incapable of safely driving.)  Pennsylvania is a per se violation state.  This means that the legislature has determined as a matter of policy, that any marijuana or other schedule II prescription medication in a person’s blood, renders that person automatically incapable of safely driving.

It is not a hard legal argument to suggest that if you can not safely drive because you are high on pot (any amount), the medical professional can not perform their medical  duties because they are high on pot.  Here is where the confidentiality provisions of the Act are important.   Section 301(A)(4) of the Act establishes an electronic database to include activities and information relating to medical marijuana organizations, certifications and identification cards issued, practitioner registration and electronic tracking of all medical marijuana as required under the Act.

Section 301(B)(a) allows for confidentiality of Patient information.–The department shall maintain a confidential list of patients and caregivers to whom it has issued identification cards. All information obtained by the department relating to patients, caregivers and other applicants shall be confidential and not subject to public disclosure, including disclosure under the act of February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, including:

(1)  Individual identifying information about patients and caregivers.
(2)  Certifications issued by practitioners.
(3)  Information on identification cards.
(4)  Information provided by the Pennsylvania State Police under section 502(b).
(5)  Information relating to the patient’s serious medical condition.

My concern is that these provisions in conjunction with other Pennsylvania rules and regulations will be employed against the medical professional who seeks and secures a medical marijuana card.  Your doctor must provide this information to the Department of Health.  If pot is found in a medical licensee’s blood, getting the medical records from their doctor (who will be discovered through the data base) is very easy.  Or, the licensee will be compelled to identify and provide their MM practitioner and his records at a Board ordered evaluation.

My experience in Pennsylvania’s heightened enforcement environment strengthens my conviction on this point. Currently every single DUI, workplace positive drug test, or other minor legal infraction is generating Board ordered mental and physical evaluations. The Boards are getting ready for a waive of intoxicated professionals.  They are gravely concerned for the well being of the Commonwealth’s citizens.  The Boards figure, get any current licensee help, stripped of their license, or at least in the Board’s radar so that when that licensee starts legally or illegally getting high and they learn of it they will be ready.   Any issue that brings the medical professional – high on legal Pennsylvania medical pot – to their respective Board’s attention will become the subject of a targeted enforcement scheme to strip their license.

 

Call me to discuss your medical condition, medical needs, and how to proceed.

 

 

 

Pennsylvania’s DUI Statute and Warrantless Blood Draws On An Unconscious Person

Since Birchfield v. N. Dakota, 136 S.Ct. 2160, 2173, 2185, 195 L. Ed. 2d 560 (2016), the Pennsylvania Supreme court has swiftly moved to invigorate and buttress Pennsylvania civil liberties and motor vehicle drivers’ privacy rights.  On July 19, 2017, in Commonwealth v. Myers, 2017 Pa. LEXIS 1689, 2017 WL 3045867, the Court upheld lower court rulings granting suppression of blood evidence seized from a drunk, unconscious motorist.

The facts are simple. Myers was visibly drunk, operated the motor vehicle, was arrested by one police officer, and taken to the hospital for a blood draw. A second officer arrived at the hospital, did not observe Myers or ask his consent to take his blood before hospital staff administered medication rendering Myers unconscious.  Unable to respond to his commands, the 2nd police officer instructed the nurse to draw Myers’ blood for testing.  The police did not secure a warrant to draw or search drunk, unconscious Myers’ blood.

The Court granted the appeal to consider the lawfulness of a warrantless blood draw conducted upon a motorist who, having been arrested for DUI, had then been rendered unconscious by medical personnel before a police officer provided O’Connell warnings and before the officer requested the motorist’s submission to a chemical test. The Philadelphia Municipal Court, the Court of Common Pleas, and Superior Court all held that a blood draw conducted under these circumstances is impermissible, and that the results of the derivative blood test are accordingly inadmissible at trial. Because the seizure of Myers‘ blood violated Pennsylvania’s implied consent statute, 75 Pa.C.S. § 1547, and because no other circumstances justified the failure to obtain a search warrant, the Court affirmed all of the lower courts’ decisions suppressing the blood evidence.

At the intermediate appellate level, in Commonwealth v. Myers, 2015 PA Super 140, 118 A.3d 1122 (Pa. Super. 2015), the court stated that Subsection 1547(b)(1) “provides a driver under arrest with [a] statutory right of refusal to blood testing.” (quoting 75 Pa.C.S. § 1547(b)(1)).  Because Myers was unconscious at the time that Officer Domenic requested the blood draw, the court observed that Myers “could not claim the statutory protection” of Subsection 1547(b)(1). 

Superior Court also relies upon Missouri v. McNeely,     U.S.    , 133 S.Ct. 1552, 185 L. Ed. 2d 696 (2013), holding that, “because police did not act pursuant to the implied consent law until 4:45 p.m., after Myers had been rendered unconscious by an intervening cause that occurred subsequent to his DUI arrest and transport to the hospital, … McNeely controls here.”  Like the trial court, Superior Court determines the Commonwealth failed to demonstrate the impracticability of obtaining a warrant prior to the blood draw. Therefore, the panel held that the trial court correctly affirmed the Municipal Court’s order granting Myers‘ motion to suppress.

On appeal to the Supreme Court, the Commonwealth argues that the implied consent statute establishes a valid exception to the warrant requirement of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, and that the statutory right to refuse chemical testing does not apply to unconscious arrestees. The Commonwealth’s central premise is that, under 75 Pa.C.S. § 1547(a), “any individual who exercises the privilege of driving in Pennsylvania has consented to a blood draw.” 

Although a conscious individual may refuse to submit to a chemical test, the Commonwealth asserts that “[t]here is no law in Pennsylvania that treats an unconscious defendant as having revoked his already-provided consent.”  The Commonwealth faults the Superior Court for “distinguish[ing] between conscious and unconscious drivers without any analysis.” (emphasis omitted). In the Commonwealth’s view, an arrestee’s state of consciousness matters only to the extent that “[u]nconsciousness . . . prevents the suspect from refusing the blood draw,” but it “does not somehow negate his existing consent.”  The Supreme Court categorically rejects this argument.

A review of the DUI informed consent issue is a good place to start.  Consistent with 75 Pa. C.S.A. §1547(c) the Pennsylvania’s Motor Vehicle code imposes evidentiary admissibility standards for blood tests consensually drawn without a warrant. Pennsylvania’s Motor Vehicle code addressing driving under the influence (“DUI”) of alcohol or controlled substances, 75 Pa. C.S.A. § 3802 (b)(c) & (d) each contain as an essential element of the criminal offense a defendant’s blood alcohol concentration level.

The grading provisions of the Pennsylvania Motor Vehicle code, 75 Pa. C.S.A. §3803(d), as they relate to DUI charges, identify in subsections 1 through 4 that any individual who is under investigation for violating 75 Pa.C.S.A. § 3802, et seq., (accusing an individual of operating a motor vehicle under the influence of drugs or alcohol such that they are incapable of safely driving) and refuses to voluntary submit to a warrant-less blood test, is to receive enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.

Pennsylvania’s implied consent law requires motorist who drive on our roads to automatically consent to a blood draw if under police investigation for alleged DUI.  75 Pa.C.S. § 1547(b)(2) (prescribing the “duty of the police officer” to inform a DUI arrestee of the consequences of refusal); Pa. Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873, 877 (Pa. 1989) (“The law has always required that the police must tell the arrestee of the consequences of a refusal to take [a chemical] test so that he can make a knowing and conscious choice.”)  If the operator refuses, no blood draw can take place.  Now after, Birchfield, the motorist can not be criminally penalized for refusing the blood draw.

By operation of the implied consent statute, once a police officer establishes reasonable grounds to suspect that a motorist has committed a DUI offense, that motorist “shall be deemed to have given consent to one or more chemical tests of breath or blood for the purpose of determining the alcoholic content of blood or the presence of a controlled substance.” 75 Pa.C.S. § 1547(a). Notwithstanding this provision, Subsection 1547(b)(1) confers upon all individuals under arrest for DUI an explicit statutory right to refuse chemical testing, the invocation of which triggers specified consequences. See 75 Pa.C.S. § 1547(b)(1) (“If any person placed under arrest for [DUI] is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted”); Eisenhart, 611 A.2d at 683 (“The statute grants an explicit right to a driver who is under arrest for [DUI] to refuse to consent to chemical testing.”).

The Court rules that under this statutory scheme, a motorist placed under arrest for DUI has a critical decision to make. The arrestee may submit to a chemical test and provide the police with evidence that may be used in a subsequent criminal prosecution, or the arrestee may invoke the statutory right to refuse testing, which: (i) results in a mandatory driver’s license suspension under 75 Pa.C.S. § 1547(b)(1); (ii) renders the fact of refusal admissible as evidence in a subsequent DUI prosecution pursuant to 75 Pa.C.S. § 1547(e); and (iii) authorizes heightened criminal penalties under 75 Pa.C.S. § 3804(c) if the arrestee later is convicted of DUI.

Previously, in very certain terms, Pennsylvania’s Supreme Court has held that, in requesting a chemical test, the police officer must inform the arrestee of the consequences of refusal and notify the arrestee that there is no right to consult with an attorney before making a decision. See O’Connell, 555 A.2d at 877-78.12Link to the text of the note “An arrestee is entitled to this information so that his choice to take a [chemical] test can be knowing and conscious.” Id. at 878. The choice belongs to the arrestee, not the police officer.

In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances. The standard for measuring the scope of a person’s consent is based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent. Such evaluation includes an objective examination of the maturity, sophistication and mental or emotional state of the defendant. Gauging the scope of a defendant’s consent is an inherent and necessary part of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the product of coercion, deceit, or misrepresentation.  Commonwealth v. Smith, 621 Pa. 218, 77 A.3d 562, 573 (Pa. 2013).

The case of Commonwealth v. Evans, 2016 PA Super 293  (December 20, 2016), is the first major Pennsylvania Appellate Court decision discussing Pennsylvania’s DUI statute, the Implied Consent Law (“O’Connell Warnings”), and the prosecutor’s burden of proof at the suppression hearing.  Evans holds that a defendant does not have to prove they gave consent only based upon the threat of a more severe criminal penalty (jail and further license suspension).  Rather, the statute itself establishes this burden and the Prosecutor must rebut that legal presumption.  Because there is no ability to rebut a presumption of illegitimate consent when threatened with enhanced jail penalties, all motions to suppress must be granted.

Myers takes Evans one step further, finding that “Subsection 1547(b)(1) does not distinguish in any way between conscious and unconscious individuals, but, rather, provides the statutory right of refusal to “any person placed under arrest” for DUI. 75 Pa.C.S. § 1547(b)(1) (emphasis added). By its plain meaning, “any person” necessarily includes an unconscious person. Accordingly, we hold that Myers had an absolute right to refuse chemical testing pursuant to the implied consent statute, that his unconscious state prevented him from making a knowing and conscious choice as to whether to exercise that right, and that the implied consent statute does not authorize a blood test conducted under such circumstances.”

Last Shore Ride of the Summer Season

 

Summer is almost gone.  Almost is a relative word.  Summer is gone.  Ok, I understand it better now.  This is why I am getting up at the same time, but the sun has yet to rise.  As seasons change, so should we.

My clients and friends alike know I email, text, and get much worthy work done before or at sunrise.  This is regardless of when such occurs.  When riding my bike at these early times, I learned – almost the hard way – to make sure the light leading the way – sun or man made – was bright enough.

The weekend before 2017 Labor Day found me up early with a  fellow early riser enjoying the sunrise from a concrete perch between Longport, Ocean City, and Somer’s Point, NJ.  The majesty that happens each day, clear or cloudy, brings awe and surprise.  Views and scenery are what get me up on the bike so early.

Three clear, sunny, and increasingly windy mornings made each ride different.  Alternate and longer long routes also mixed it up.  Each day’s returning home trek brought me to the 9th Street Bridge entering Ocean City, NJ.  Gazing upon Ferris’ wheel, the mere slivers of land between the water ways, and 360 degree views takes my breadth away.

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As with life, the important things are the small ones.  Smell the coffee, take that break or picture, and soak up life.  Throughout these long 40-60 mile rides we always stop when coming across nature’s wonders. (Not for the road kill.  It smells so bad.)  Appreciate daily the bikers, joggers, landscapes, or just family that are around you.

See them. Understand them. Embrace them.  They are always orbiting your existence.  Don’t always change their trajectory to mirror yours. Let them continue on their course with you a follower of them.  The Boy Scout principle “Leave No Trace” comes to mind. Appreciate what is there, but do not disturb.  Evaluate, investigate, and gain knowledge.  But, leave it undisturbed for others to do the same.

Ending my ride brings me back towards Longport, NJ with the sun streaking towards its daily zenith. Tired, worn out, but loving each pedal stroke, I am ready for the remainder of the day.  But mostly, I just need a cup of coffee.

Medical Marijuana and the Physician Practitioner

In Pennsylvania medical marijuana is almost here.  Business licenses have been issued, dispensaries are being built, and physicians are getting approved as “Practitioners”.  Who will be their patients and how will dispensaries attract patients are unanswered questions as of yet.
The new regulations do set forth very specific proscriptions about who can certify a patient, which patients can be certified to receive a medical marijuana card, and the extent to which certifying practitioners are allowed to participate in this new business space.  This blog will discuss some of these issues.
Firstly, only physicians registered and approved by the Department of Health (“DOH”) as “Practitioners” may certify a patient to receive medical marijuana.   To qualify, a Practitioner must have an active, unrestricted medical or osteopathic license in the Commonwealth of Pennsylvania issued pursuant to the Medical Practices Act or the Osteopathic Medical Practice Act.  Only the DOH determines if Practitioners are qualified to treat patients with one or more serious medical conditions. These conditioners are not listed in the regulations.
To become a DOH Practitioner pursuant to medical marijuana regulations the physician must take a four hour training course. The training course shall include important responsibilities of Practitioners under the Medical Marijuana Act, general information regarding medical marijuana under federal and state law, the scientific research regarding the risks and benefits of medical marijuana, and recommendations for medical marijuana as it relates to the continuing care of pain management, risk management opiate addiction, palliative care, overdosing on medical marijuana, informed consent, and other areas to be determined by the DOH.  1181.32.  All Practitioners must be familiar and compliant with the Prescription Drug Monitoring Program.  A physician must possess knowledge of best practices regarding medical marijuana dosage based upon a patient’s serious medical condition and the medical professional’s medical training and specialty.  These provisions, while very vague and ambiguous, are extremely extensive.
Once, a physician is approved as a Practitioner (which has not yet happened), what is the process they must follow to issue patient certifications (the medical marijuana card)? The physician patient initial or follow up consultation must be complete, in person, and documented in the patient’s healthcare records contemporaneous to the issuance of a patient certification.  Any medical marijuana certification can only be issued consistent with (AFTER REVIEWING) the patient’s Prescription Drug Monitoring controlled substance use history. That law is found at 35 P. S. 872.1-872.40. A violation of the monitoring law is a Drug Act violation.
These initial evaluations could become the lynch pin of future disciplinary action against rouge physician Practitioners.  Practitioners can not simply meet a patient claiming to suffer from “cancer”  or a “serious” medical condition and issue a patient certification.  The doctor patient consultation must be complete and extensive.  These patients must already have a “serious” medical condition.  Practitioners must secure documentation of such prior to or contemporaneous with the patient certification.  Up to date X-rays, MRI’s, biopsy results, specialist’s reports, prescription drug histories, and/or copies of a complete medical history file should be secured before issuing the patient certification.  The Practitioner who does not initiate a best practices for these initial patient consultations will expose themselves to unhappy patients (who expect their certification at the first consultation) and disciplinary action for practicing below the standard of care and in violation of DOH medical marijuana regulations.
Patient certifications require complete patient identifiers, along with the diagnosis, assumption of continuing care for the patient, and the length of time (not exceeding one year) that the marijuana treatment would be palliative or therapeutic.  1181.27.  The Practitioner must also recommend either a specific dosage or consultation with the dispensary employee to recommend dosage.   Importantly, Practitioners may not receive or provide medical marijuana product samples — suggesting their patients “try this” to “see how it works”.
Patient certifications are easily revoked.  Practitioners SHALL notify the DOH in writing if they know or have reason to know that one of their certified patient has recovered from their “serious” medical condition, the patient has died, or the medical marijuana use would no longer be therapeutic or palliative. 1181.28-29. The regulations allow a Practitioner to withdraw the issuance of a patient certification at any time, without any reason,  upon written to notification to both the patient and DOH. 1181.29.   This will be  interesting in practice how these provisions play out.  Cancelling a certification could generate patient complaints to DOH and subsequent DOH disciplinary action.  Hence, full compliance with all patient contact and documentation requirements to properly answer  a DOH – and possible Medical Board – investigation is paramount and prophylactic.  DOH will be vigilant against any medical Practitioner violating these regulations.
Once a patient receives DOH revocation notification, the same is entered in the electronic tracking system. Any subsequent distribution of medical marijuana to an uncertified patient shall be a violation of the Prescription Drug Monitoring program protocols and, potentially, the criminal laws of the Commonwealth of Pennsylvania.  Here is where the trouble for Practitioners lie.  Any improper certification will become a violation of the Drug Act, possibly a felony, thereby creating automatic license suspension issues.
Department of Health regulations allow for a Practitioner to be removed from the medical marijuana practitioner registry if a Practitioner’s medical license is inactive, expired, suspended, revoked, limited or otherwise restricted by the Pennsylvania appropriate medical board. 1181.26. Any physician subject to professional disciplinary action is subject to immediate or temporary suspension of their medical marijuana participation.  A physician subject to any professional disciplinary action (Pennsylvania of other state) may be removed for the Practitioner list.  Importantly, these provisions only require the initiation of disciplinary action, not any formal conclusion to a disciplinary action.  This is a huge provision allowing for emergent and possible automatic suspension from the program and medical license problems.   Stay ahead of the investigatory curve; document everything, practice with extreme ethical limitations, assume any patient in your medical practice is not really sick or is an undercover DOH officer recording your every word.
There is an anti-kickback provision in the medical marijuana regulations. 1181.31(a). The only fee for service a practitioner can receive is from an actual or prospective patient consultation.  Practitioners cannot accept, solicit or offer any form of remuneration from anybody associated with the dispensary in any manner. (No baseball tickets, diners, college tuition, cars, lunch, Christmas baskets.)  All fee for services must be properly schedule and posted.  As there is no insurance coverage for these medical services, receipt for payment in cash must provided and properly documented. Accepting credit card payments for these services could expose the Practitioner to federal banking violations. Revenues must be reported to avoid any state or federal tax evasion investigations.  Depositing this cash in the bank is a separate issue for a separate blog.
Practitioners are extremely limited to whom they can issue certifications.    Practitioners can not be a designated caregiver for a their own patient to whom the Practitioner issues a certification, may not issue a patient certification for themselves or a family or non family household member.  Practitioners may not advertise their services as a Practitioner who can certify a patient to receive medical marijuana. 1181.31(b)-(f). Practitioners will require continuing, aggressive management of their qualifications to ensure continued compliance with DOH medical marijuana regulations. A Practitioner under the Act cannot hold a direct or economic interest in a medical marijuana organization.
Any physician removed from the practitioner registry may not have asked electronic access to patient certifications, issue or modify a patient certification, or provide a copy of existing patient certifications to any person parentheses including a patient caregiver, or other medical professional, except in accordance with applicable law.
Call me to discuss setting up your practice or any potential disciplinary issues associated with your practice as a practitioner certifying patients to receive medical marijuana.

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A Major Constitutional Decision from the Pennsylvania Supreme Court

In 2011 the General Assembly enacted, consistent with federal mandate, Pennsylvania’s latest version of Megan’s Law.  Entitled SORNA or the Sex Offender Registration and Notification Act, the law became effective on December 12, 2012.

SORNA, 42 Pa.C.S. §§ 9799.10 to 9799.41, classifies offenders and their offenses into three tiers, 42 Pa.C.S. §9799.14. Those convicted of Tier I offenses are subject to registration for a period of 15 years and are required to verify their registration information and be photographed, in person at an approved registration site, annually, 42 Pa.C.S. § 9799.15(a)(1), (e)(1). Those convicted of Tier II offenses are subject to registration for a period of 25 years and are required to verify their registration information and be photographed, in person at an approved registration site, semi-annually, § 9799.15(a)(2), (e)(2).  This registration scheme greatly extended the registration responsibilities for defendants whose criminal acts occurred prior to December 2012.

I have written several blogs on this issue: SORNA’s retroactive registration requirement for those previously convicted of crimes enumerated within the law purview.  The law specifically states that any individual under supervision (probation, parole, or prison – but not registration supervision) on December 12, 2012 was subject to reclassification of their registration scheme.  The reclassification effectively altered every supervised defendant’s SORNA’s registration requirements from 10 years to 15, 25 or life and changed the annual to quarterly registrations.

My blogs focused on the Pennsylvania State Police’s effort to reclassify offenders who were not under supervision, but were still registering consistent with their guilty plea or sentencing scheme.  In these cases the defendants served their sentence, had complied with their guilty plea agreement, but the State Police sought to reclassify and extent their registration requirements.  The Supreme and Superior court decisions in these cases (Nase, Haisworth and Martinez) dealt with these cases, declaring the State Police’s unilateral reclassification of non-supervised defendant a breach of the guilty plea agreement.

Various state court judges not willing to terminate a SORNA registration requirement found every way possible to deny these defendants post-conviction non-PCRA relief.

On July 19, 2017 the Pennsylvania Supreme Court issued the decision in Commonwealth v. Muniz, 2017 Pa Lexis 1682.  The facts are as follows: On February 7, 2007, after a bench trial in Cumberland County, appellant was convicted of two counts of indecent assault arising out of an incident where he touched the breasts of his girlfriend’s twelve-year old daughter.  Sentencing was scheduled for May 8, 2007, at which time appellant would have been ordered to register as a sex offender with the Pennsylvania State Police for a period of ten years pursuant to then-effective Megan’s Law III. See 42 Pa.C.S. §9795.1 (expired).  However, appellant failed to appear for his sentencing hearing and absconded until he was apprehended on unrelated charges in Rhode Island in September 2014. N.T., 10/14/14 at 2. During his absence, the General Assembly [*3] had replaced Megan’s Law III with SORNA. Under SORNA, persons convicted of indecent assault of a person less than thirteen years of age, 18 Pa.C.S. §3126(a)(7), are categorized as Tier III offenders and are required to register as sex offenders for the remainder of their lives.

Appellant Muniz was sentenced to four to fourteen months’ imprisonment and ordered to comply with lifetime registration requirements under SORNA. Appellant filed a post-sentence motion seeking application of the ten-year registration period under Megan’s Law III, which was the law in place at the time of his offense and conviction, instead of lifetime registration under SORNA. The trial court denied Muniz’ motion and he appealed to the Superior Court, claiming retroactive application of SORNA violates the ex post facto clauses of the United States and Pennsylvania Constitutions, and the reputation clause of the Pennsylvania Constitution.

Importantly, the court found that Muniz’ seven year absence from the Commonwealth is of no moment. SORNA applies retroactively to any individual serving a sentence for a sexual offense or any individual who had not completed their registration period under prior registration statutes as of SORNA’s effective date of December 20, 2012. 42 Pa.C.S. §9799.13. Had Muniz been sentenced in 2007 and subject to registration under Megan’s Law III, he would not have completed his ten-year registration period when SORNA became effective and thus his ten-year registration period would have been converted to a term of lifetime registration.  This foot note number 3 applies to every case for which pre-December 2012 defendants may now seek to contest their post-sentencing reclassification!

Appellant filed a petition for allowance of appeal raising two questions regarding SORNA’s “sexual offenses and tier system” provisions set forth at 42 Pa.C.S. §9799.14:
1) Does applying [42 Pa.C.S. § 9799.14]  retroactively violate the Federal Constitution?
2) Does applying [42 Pa.C.S. § 9799.14] retroactively violate the Pennsylvania
Constitution?

The Pennsylvania Supreme Court said YES to both questions:   The retroactive application of SORNA’s new harsh, punitive shaming registration scheme to defendants whose sex related crimes were committed prior to December 12, 2012 is unconstitutional.   The Court rules that SORNA increases punishment for conduct which occurred before its enactment and such retroactive application violates both federal and state constitutional bans on ex post facto laws; in doing so, the court finds that the Pennsylvania Constitution provides greater protection than the United States Constitution, that SORNA is therefore unconstitutional as applied to someone like Muniz whose conviction predated its enactment. The Pennsylvania State Police can not now lawfully retroactive apply SORNA and reclassify defendants (under supervision or not) for criminal conduct occurring prior to December 2012.  This is huge.

Call me to discuss your case.

Northampton County’s 1861 Court Room!!

Finding the diamond in the rough. That describes my recent drive to the Northampton County Courthouse. As my law practice takes me from the Philadelphia’s suburban counties to northeastern Pennsylvania, I routinely travel on the Pennsylvania Turnpike and its Northeast extension.
The drive this July week was rough. The weather forecast proved accurate; rain and fog through the Lehigh Valley. It was raining so hard, I missed my exit off Rt 476E at Rt 22 E. I drove an additional 20 miles each direction, turning around in Jim Thorpe. (I love the Carbon County Courthouse – see my other blogs – but I was not going there today.)
 I was uncharacteristically late, arriving at 9:25 am for a 9:00 am hearing.  I was otherwise safe.  The judge was extremely gracious and polite. The case was handled quickly.  Opposing counsel – a local assistant district attorney – offered a tour of the courthouse as I expressed my appreciation for our hearing taking place in the old courthouse, courtroom 3, as compared to the new 2004 building.
The county website states, “The original court house was built in  1764. Nearly a century later and after the courthouse had experienced a number of historical events, which included being used as a barracks by Revolutionary troops, a group of citizens petitioned for a new County Courthouse at a different location. On August 23, 1860, the County Commissioners decided to accept land offered at a price of $1.00 that was located several blocks west of the original facility.   A new brick structure was later built on a steep hill at a cost of $53,000. The first term of court was held in the new facility on June 18, 1861.  Since then, two additional wings were constructed to accommodate the growth of Northampton County and satisfy the judicial needs of the expanded population.  The second part of the courthouse was built in 1978 and the third in 2004. “
I was interested in the 1861 building and court room 1.  Finished at the out set of the Civil War.   Wow!! A majestic legal theater, refurbished in 1978 to match the import to the community when the courthouse was built. Original woodwork, plaster, and paint are renewed. County Commissioners rightfully chose to not clutter the court room with of a phalanx of computer cables, microphones, and other modern day accoutrements that clutter some other county courtrooms in which I practice.
The pictures below reveal the courtroom’s grand entrance, judicial bench, and the jury box of the times. The remarkable woodwork and attention to detail immediately reveals itself. The artisans of Pennsylvania’s counties knew their work would be on display at every important and public event of the times. The honor and respect they earned working for their local government on the most important building in the county.

Try to Recognize when an Attorney is Needed

When is it important to hire an attorney in a licensing and criminal defense case? When case agent first contacts you!  Do not talk to them.  Just say thank you, I will call you back; can we meet next week; no you can not come into my house!!
Every day licensing board investigators, police detectives, human resource departments, or other government investigators reach out to targets or “individuals of interest” in a wide range of potential investigations. These law enforcement officers (most state investigators are retired police detectives) are trained to secure statements from the subject of the investigation.  They call you, show up at your house, or try to meet with you at work.  This is when you know you need a lawyer.

My blogs generate phone calls from potential clients.  A recent theme of these calls sticks out;  investigators are employing consistent, heightened and aggressive investigative techniques to surreptitiously secure statements and admissions of criminal conduct, unprofessional licensing behavior, or illegal behavior.  This is explained in one sentence; why do an investigation when an admission from the target will solve the case.

Targets give statements for one reason: ignorance and naïve understanding of the law.   Targets  or potential criminal defendants give statements because they think they are obligated to cooperate, should cooperate, or that cooperating is in their best interest.  These reasons are incorrect.
Admitting to engaging in questionable or criminal conduct eliminates investigator’s obligation and duty of proving their case through means other than an admission by the target.  Admissions to detectives and investigators eliminates their need to perform basic investigator police work.  It satisfies  the police officer’s burden of proof in securing evidence of illegal or criminal conduct against you.
Licensees who admit to a Board investigator to practicing outside the scope of their license, stealing from their clients, overcharging for services, or any other offense does the investigator’s job.  In many cases, before the statement is secured, there is only a mere suspicion of inappropriate behavior.  There is no specific evidence of a criminal act. The statement itself becomes the evidence against you. The person giving the statement creates the criminal evidence for the investigator that they did not otherwise have.   (I feel the same way  about licensees who cooperate in the PHMP VRP assessments.  Do not give the Board’s any evidence they do not have.)
Once a criminal admission is given, the police officers don’t do anymore work. The state investigators don’t do anymore work. This is why there is no legal obligation to cooperate.
Giving statements to employers in work place investigations has the same ultimate result. I have written about this many times. Choosing to not give a blood test, write a personal statement, or even provide copies of medical records cannot be held against you. You can be fired, but it can’t be held against you. At times it’s more important to choose to remain silent then to keep your job.  Anything you say in the employment setting is merely turned over to the board investigator or police.
Remaining silent and not cooperating with any investigation  — not disclosing truly damaging information — sometimes is the best defense of your license or against criminal charges.  Do not succumb to the police officer bullying. Suggestions by police that they can secure search or arrest warrants should not persuade you to give up your constitutional rights.
You do not have to give a statement. You do not have to give a DNA test. You do not have to participate in any polygraph evaluation.   If the officer does not believe your word or accept your version of events, agreeing to provide objective forensic evidence will not change their mind. You will just be giving them evidence to accumulate and use against you at a later date.
Hopefully you have the opportunity to read this blog before you have spoken to an investigator about a licensing issue, participated in the workplace related investigation, or cooperated with any police inquiry inquiry about your job or your behavior. If not, call me as soon as possible.
Whether you hire me or any other lawyer, stop stop cooperating with any police investigation.

Pennsylvania’s Accepts the Interstate Medical Licensure Compact Act

Pennsylvania has finalized its membership in the Interstate Medical Licensure Compact Act.  Found at 63 P.S. §395.2, the General Assembly authorizes the Governor to execute the Interstate Compact for Medical Licensure of non-Pennsylvania based physicians.  As I wrote previously last summer, the proposal substantially strips Pennsylvania medical licensees of many due process rights.

Pennsylvania based physicians who seek licensure in member states become subject to those jurisdictions’ criminal and disciplinary process, investigations and actions.  My prior blog addresses the significant pit falls of that process.  Reviewing the definition section of the enabling legislation (which is a nationwide standard set of definitions and procedures) helps understand how and why Commonwealth Pennsylvania physicians seeking multi-state licensure are at substantial exposure to extra jurisdiction disciplinary action without the many protections of Pennsylvania’s administrative due process.

A physician’s medical license, granted by a member state to an eligible physician, is subject to this new law’s legal definitions. First and foremost is the definition of conviction of any type of criminal act. Conviction means: a finding by a court that an individual is guilty of a criminal offense through adjudication, or entry of a plea of guilt or no contest to the charge by the offender. Evidence of an entry of a conviction of a criminal offense by the court shall be considered final for purposes of disciplinary action by a member board.  Potential criminal acts — any “Offense” means: a felony, gross misdemeanor or crime of moral turpitude.

At issue for Pennsylvania and/or New Jersey doctors is the difference in criminal versus administrative matters.  A DUI in Pennsylvania is criminal versus New Jersey it is administrative.  There are many matters in Pennsylvania that result in a summary resolution, not a felony and misdemeanor conviction.  What is a gross misdemeanor?  The Act does not differentiate.  In Pennsylvania, criminal charges are brought after a  preliminary hearing.  Many states proceed by indictment.  The Act does not distinguish enrollment in a non-conviction based diversion program.  How difference states render disciplinary action based upon different standards of conduct (from that of Pennsylvania Medical Board) and resolution – which each member state will now have to unilaterally accept – is significant.

These huge differences apply to all physicians.  Who is a physician.  Physician under the Act means a person who:

1. is a graduate of a medical school accredited by the Liaison Committee on Medical Education, the Commission on Osteopathic College Accreditation or a medical school listed in the International Medical Education Directory or its equivalent;
2. passed each component of the United States Medical Licensing Examination or the Comprehensive Osteopathic Medical Licensing Examination within three attempts or any of its predecessor examinations accepted by a state medical board as an equivalent examination for licensure purposes;
3. successfully completed graduate medical education approved by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association;
4. holds specialty certification or a time-unlimited specialty certificate recognized by the American Board of Medical Specialties or the American Osteopathic Association’s Bureau of Osteopathic Specialists;
5. possesses a full and unrestricted license to engage in the practice of medicine issued by a member board;
6. has never been convicted, received adjudication, deferred adjudication, community supervision or deferred disposition for any offense by a court of appropriate jurisdiction;
7. has never held a license authorizing the practice of medicine subjected to discipline by a licensing agency in a state, federal or foreign jurisdiction, excluding an action related to non-payment of fees related to a license;
8. has never had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration; and
9. is not under active investigation by a licensing agency or law enforcement authority in a state, federal or foreign jurisdiction.

 

Licensees must identify a state of primary licensure.  That state will verify eligibility, conduct background checks, and maintain fingerprint and biometric data. However, these investigations and parameters are set through federal regulations, and not individual state law. Expedited licensure issued by the central processing state makes that interstate commission more powerful than the individual primary state. The interstate license is limited to a specific period of time in the same manner as required for the physicians holding a full unrestricted license within that state. And expedited license obtained through the compact shall be terminated if the physician fails to maintain a license in the state of principle licensure for a non-disciplinary reason, without re-designation of a new state or principle licensure.

Because there’s a coordinated information system, Pennsylvania’s law allows member boards to report to the interstate commission any public action or complaints against a licensed physician who has applied to receive the expedited license through the compact. Member boards report disciplinary or investigation information and determine if it is necessary and proper basis for disciplinary action by the interstate commissions. Member boards may report any non-public complaint, disciplinary or investigative information to the commission. Member boards will share complaint or disciplinary information.. This means even the most minimal initial disciplinary investigatory claims, unfounded, without final disciplinary decision, by a member state is automatically reported to the entire commission. Disciplinary action from the commission, not an individual state jurisdiction, could be the basis for disciplinary action. How does the physician defend himself or herself against this.

The Act specifically says “any disciplinary action taken by any member board against a physician license through the compact shall be deemed unprofessional conduct which may be subject to discipline by other member boards, in addition to any violation of the medical practices act or regulations in that state. Such a disciplinary action by one state may be deemed conclusive as to a matter of law in fact, allowing the member jurisdictions to impose the same or less or sanction or pursue a separate disciplinary action against position under its respective medical practices act, regardless of action taken and other member states.

 

Call me about your license application, conditional approvals, of pending discipline.

Proposed Pennsylvania Law for All Licensee’s Criminal Charge Reporting Responsibilities

In February several Pennsylvania state senators introduced Senate Bill number 354 of 2017. This bill drastically changes licensees reporting responsibilities once they are charged with a crime. Currently, most licensees (Except nurses) must report a criminal charge only upon conviction. Senate Bill 354 as currently written specifically states:

Section 2.1.  Reporting of sanctions and criminal proceedings.

(a)  Duty.–An individual who holds a license, certificate or registration issued by the Bureau of Professional and Occupational Affairs shall, as a condition of licensure, certification or registration, do all of the following:

(1)  Report to the appropriate licensing board or licensing commission a disciplinary action taken against the licensee, certificate holder or registrant by a licensing agency of another jurisdiction.

(2)  Report to the appropriate licensing board or licensing commission an arrest, indictment or conviction of the licensee, certificate holder or registrant.

(b)  Time.–A report under subsection (a) shall be made as follows:

(1)  Within 30 days of the imposition of the sanction described under subsection (a)(1).

(2)  Except as set forth in paragraph (3), within 30 days of the earlier of:

(i)  an arrest under subsection (a)(2); or

(ii)  an indictment under subsection (a)(2).; or

(iii)  a conviction under subsection (a)(2).

(3)  In the case of a criminal action under subsection (a)(2) that is initiated prior to the effective date of this paragraph, within 30 days from the later of:

(i)  the date of conviction; or

(ii)  the effective date of this paragraph.

If a licensee does not report a new arrest within 30 days, the licensee is subject to additional disciplinary action.

All Pennsylvania licensees may soon become subject to disciplinary action as a result of accused, not convicted, criminal conduct.  This is a much different from the current scenario of disciplinary action upon conviction. The remaining subsection identified below is consistent with current procedural due process rights to a licensee whose license is subject to an immediate clear and present danger emergent suspension.

(a)  Temporary suspension.–A licensing board or licensing commission may temporarily suspend a license, certificate or registration under circumstances as determined by the board or commission to be an immediate and clear danger to the public health and safety. The board or commission shall issue an order to that effect without a hearing, but upon due notice, to the licensee or, certificate holder or registrant concerned at his last known address, which shall include a written statement of all allegations against the licensee or, certificate holder or registrant. After issuing the order, the board or commission shall commence formal action to suspend, revoke or restrict the license or, certificate or registration of the person concerned as otherwise provided for by law. All actions shall be taken promptly and without delay.

(b)  Hearing.–Within 30 days following the issuance of an order temporarily suspending a license, certificate or registration, the licensing board or licensing commission shall conduct or cause to be conducted a preliminary hearing to determine whether there is a prima facie case supporting the suspension. The licensee or, certificate holder or registrant whose license or, certificate or registration has been temporarily suspended may be present at the preliminary hearing and may be represented by counsel, cross-examine witnesses, inspect physical evidence, call witnesses, offer evidence and testimony and make a record of the proceedings. If it is determined that there is not a prima facie case, the suspended license, certificate or registration shall be immediately restored. The temporary suspension shall remain in effect until vacated by the board or commission, but in no event longer than 180 days.

(c)  Automatic suspension.–A license or, certificate or registration issued by a licensing board or licensing commission shall automatically be suspended upon:

(1)  the legal commitment to an institution of a licensee or, certificate holder or registrant because of mental incompetency for any cause upon filing with the board or commission a certified copy of the commitment; or

(2)  conviction of a felony under the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or conviction of an offense under the laws of another jurisdiction which, if committed in this Commonwealth, would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act.

(d)  Stay.–Automatic suspension under subsection (c) shall not be stayed pending an appeal of a conviction.

(e)  Restoration.–Restoration of a license or, certificate or registration shall be made as provided by law in the case of revocation or suspension of the license or, certificate or registration.

New to the licensing and regulatory scheme for every licensee is the ability of a licensing board to automatically suspend a license if the licensee is committed to a mental health facility for any reason or a conviction under the Drug Act. Restoration of the licensees license suspended under Senate Bill 354 shall be consistent with any other procedural due process rights.
Please call me to discuss your case
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