Professional License Applications – Convictions – The Cover Up is Worse than the Crime
April 1, 2019 Leave a comment
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April 1, 2019 Leave a comment
March 6, 2019 Leave a comment
The post-180 day period is the time after which licenses can get their license back pending disciplinary action. I am currently handling several ITS cases with disciplinary action pending and not pending. In one case disciplinary action was not filed for over a year. The licensee did not file a petition to reinstate her license and did not engage in the practice of her profession. This was a foolish mistake because absent disciplinary action, her license was subject to reinstatement without restriction after 180 days. A little bit of research and hiring counsel would have properly notified the licensee of the lack of basis to continue her suspension.
December 19, 2018 Leave a comment
The Professional Compliance Office within BPOA’s Legal Office, receives an average of 16,000 complaints per year. The office reviews these complaints to establish whether the complaint alleges conduct which is a violation of a practice act, whether a Board has jurisdiction, and whether there is sufficient evidence to merit further investigation. Complaints can be initiated by consumers, licensees, board or commission members, board or commission staff, competitor complaints, other state licensing boards, media information, and law enforcement.
When a complaint requires investigation, the Department’s Bureau of Enforcement and Investigation (BEI) interviews witnesses and obtains documents and collects evidence related to the allegation made in the complaint. Subsequently, a prosecuting attorney determines whether to close the complaint or to initiate a disciplinary action before the administrative licensing board.
Prosecution for violations of standards of practice are initiated through the filing of an Order to Show Cause. The prosecutor who proceeds with the disciplinary action then bears the burden of proving misconduct before the board. Licensees are provided due process and the board adjudicates the case to either dismiss or sanction. Depending on the severity of the conduct proven, sanctions can range from probation and discretionary suspension, to revocation or automatic suspension as required by statute. Licensees have the right to appeal any sanctions to the Commonwealth Court for review.
Sanctions include: revocations, suspensions, stayed suspensions, voluntary surrenders, probations, reprimands, civil penalties. As of May 16, 2018, there had been 2,494 sanctions issued in fiscal year 2017-2018. This is the highest on record. Nursing Board sanctions doubled between 2012 and 2018, from 436 to 840. Nursing Board actions account for 31% of all disciplinary cases. Medical and Osteopathic Board sanctions remained the same at 190 and doubled from 27 to 46, respectively. Pharmacy and Social Workers Board actions have both dropped by 50%.
Each board and commission is authorized to take disciplinary action based on the commission of a crime. Among these disciplinary actions taken:
• 29 % resulted in suspension;
• 17% resulted in stayed suspension (usually with probationary terms);
• 13.5% resulted in automatic suspension due to the Drug Act;
• 12.6% resulted in voluntary surrender of license;
• 12% resulted in revocation;
• 6.5% resulted in reprimands;
• 4.7% resulted in immediate temporary suspensions based on danger to health/safety of public;
• The remaining roughly 5% resulted in probation, a civil penalty (regular or Act 48), a stayed revocation, or other sanction such as remedial education, etc.
Call me to discuss your case.
December 17, 2018 Leave a comment
Artifice and fraud schemes are rampant in healthcare and insurance. Typical insurance fraud criminal charges will result in licensee disciplinary action. By typical I mean submitting claims for unemployment benefits while working another job or failing to report accurately income amounts to qualify for child and other state Medicare/ Medicaid benefits.
Healthcare professionals also engage in insurance billings fraud schemes. Submitting health insurance claims for medical services not therapeutically necessary is fraud. This is typical a conspiracy. It is perpetuated knowingly by the physician but unknowingly by an entire medical office or hospital medical practice. Another scheme is a billing for every individual procedure code associated with a patient’s surgical procedure, whether the patient received the service or product. This fraud is very hard to find without computers.
In September 2018 the Social Workers and Professional Counselors Board issued a disciplinary decision against a sole practitioner who billed an insurance company for her services. This case sheds light on a new scheme involving an old type of fraud. The professional counselor would see a patient four or five times. Thereafter, her husband, who was running the office, billed the patient’s insurance company for 400 or 500 visits. The scheme stretched between 2011-2015. The licensee allowed her husband to engage in this $600,000 billing fraud with her license.
After several years the insurance company’s fraud detection service was alerted. Fraud detection techniques include computer algorithms searching for outlier billing codes, procedures, excessive procedures, highest payee, or excessive patient visits. The insurance company referred the case to the Attorney General’s Insurance Fraud Division. After a simple and brief investigation, the licensee was charged with felony insurance fraud, felony theft, felony unlawful use of a computer, and felony receiving stolen property.
The professional was convicted and sentenced 6 to 23 months in jail, 5 years probation, and $600,000 of restitution. She was immediately stripped of her ability to participate in the private health insurance program. After her conviction, discipline was commenced. A 5 count disciplinary action that is based upon the felony conviction engaged in the course utilizing the license. A fraud conviction is a moral turpitude violation.
A fraud perpetrated utilizing a professional license typically results in probation or a brief license suspension. This licensee engaged in fraudulent billing of fabricated office visits of this manner for 22 different patients. This rampant fraud, the Board determined, required license revocation. One patient’s insurance company was billed for 906 office visits where only 56 visits were real. Another patient was charged 806 office visits but only was seen 55 times. One patient visited the office only twice, but was billed for 585 office visits.
This Board emphasizes insurance fraud related to the professional practice is an aggravating factor in disciplinary cases. The Board exclaims the four years of excessive fraud began immediately upon opening her private practice. The Board is disgusted with the licensee’s deceptive statements to her patients who questioned explanation of benefit forms.
Respondent’s mitigation did not move the Board to reduce the license revocation exposure. She claimed spousal abuse, her husband made her do it, their family debts were excessive. The licensee’s husband’s spousal infidelity, and her attempts to stop His fraud were similarly disregarded. Computers are the investigators now. Abnormal billing, patient billing complaints, and engaging in other outlier type behavior is easier to detect. Call me to discuss any criminal investigation or disciplinary action.
December 5, 2018 Leave a comment
October 7, 2018 Leave a comment
On October 4, 2018 Commonwealth Court issued a significant decision in King v. BPOA discussing the Criminal History Record Information Act (“CHRIA”).This statute gives licensing boards a discretionary authority to discipline, suspend, revoke, grant, or deny licensure based upon a criminal conviction related to the practice of a license. CHRIA’s general purpose, however, is to control the collection, maintenance, dissemination or receive a criminal history record information.
Recently,licensing boards use CHRIA to discipline licensees for criminal conduct NOT related to the practice of license. King reiterates CHRIA does not provide standards for Boards to exercise their discretion. Boards must look at their specific and more relevant enabling statutes, the specific board licensing laws. CHRIA does not authorize discipline for a criminal convictions not related to the practice of the profession.
This is why in CHRIA disciplinary cases, those solely based upon a criminal conviction, licensee’s mitigation and rehabilitation evidence is critical. In 1998 King was convicted of indecent assault. He was sentenced to 5-10 years in jail, 10 years probation and supervision under Megan’s law. After parole and King satisfied all terms of his sentence, did not violate probation or parole, properly secured his barber license, and practiced his profession in an unblemished manner. He properly notified the Board of his conviction.
The Barber Board, after a hearing, revoked King’s license based upon the misdemeanor conviction and probationary sentences. King appealed. Commonwealth Court ruled the Barber Board abuses its discretion in revoking the license based upon CHRIA. As the licensee did not violate the Barber licensing statute, there was no other basis to discipline him.
This case is significant because Commonwealth Court relies upon Article 1, Section 1 of Pennsylvania’s Constitution. This Article guarantees Pennsylvania residents the right to engage in any of the occupations of life. By referencing a state constitutional guarantee the court effectively holds this rights outweighs CHRIA’s general purpose, non-mandatory discretionary license disciplinary.
King emphasizes Boards’ general statements of public safety concerns of a future occurrence is not proper evidence upon which it may base a discretionary disciplinary action. The Board abuses its description when it revokes licensure based on supposition that the licensee could potentially be an instructor for female students under the age of 18 or have contact with minor clients. Such speculative reasoning is flawed.
King rejects Board member perceptions that criminal convictions scar licensees’ character forever, with no possibility of rehabilitation. King instructs licensing Board to consider and properly allow for rehabilitation. King follows a line of 2018 Commonwealth Court cases instructing Pennsylvania licensing Boards that CHRIA is a not a proper basis to suspend or revoke a constitutionally secured property right. https://www.phila-criminal-lawyer.com/blog/2018/05/another-appeals-court-reverses-a-pennsylvania-licensing-board-disciplinary-decision.shtml
Fully employment and hard work is the rule. This is in contrast to many recent cases of which I have written. Commonwealth court is telling the boards as a matter of policy, “let these people work”. Rehabilitation is part and parcel with employment, which is part and parcel with members being productive people in society.
Call me to discuss your case.
September 7, 2018 1 Comment
Many professionals consume alcohol in a moderate and temperate manner. Reasonable, social alcohol consumption that results in a driving under the influence criminal charge is an unfortunate event. The criminal consequence and interactions with the justice system are necessary impediments to excessive drinking.
However, reasonable social drinking does not mean licensed professionals suffer from a drug and alcohol addiction or impairment that is both continuing and rendering the professional unsafe to practice their profession. It is these two statutory requirements the PHMP, PAP, and PNAP, ignore when enticing and scaring licensees to enroll in the PHMP monitoring program. PHMP’s threats and intimidation (PHMP Scare Tactics) when combined with licensees’ anxiety and stress from the criminal case create the perfect storm for licensees to make ill-informed and legally incorrect decisions regarding their professional license.
A recent case is a perfect example of why licensees should hire counsel upon receipt of any PHMP paperwork. My client hired me after she had attended a PHMP assessment and, having rejected it, also attended without counsel a Mental and Physical Evaluation. The Board MPE expert concluded she suffered from an alcohol use disorder that required monitoring for her to safely practice. She rejected the DMU/PHMP and fought her case. Luckily for this licensee she hired me.
In all impairment cases, the Practical Nurse Law, 63 P.S. §651-667.8, authorizes discipline if there is sufficient evidence in the record to demonstrate that licensee is addicted to alcohol, that any such dependence is continuing, and any such dependence prevents her from practicing practical nursing with reasonable skill and safety to patients. Absent any one of these factors and the Commonwealth loses its cases. Translated into English, the Commonwealth must prove a professional’s alcohol use condition existed, is continuing, and results in the professional’s inability to practice their profession with care and safety.
During cross-examination of their expert I exposed the inaccuracies and legally deficiencies of his opinion. The expert conceded he did not request, and thus did not review, my client’s medical records, employment records, performance reviews from her current employer, and did not contact reference persons (including probation officer) my client provided. At the hearing the expert disclosed he did not possess any factual information about my client’s work performance, such as employer complaints, or any evidence indicating that her use of alcohol has ever affected her work or resulted in her being requested or directed to submit to alcohol and/or drug testing while at work.
As with many of my cases, prosecutors attempt to satisfy their burden of proof through expert testimony that only says the professional is able to practice practical nursing with reasonable skill and safety to patients as long as she is monitored. The usual language is “I believe she is impaired and that it is unsafe for her to practice nursing with requisite skill and safety without monitoring. As such, experts routinely recommend monitoring based on the need for objective verification of a licensee’s abstinence from alcohol. However, this is not the burden of proof.
A review of the evidence showed this licensee was abstinent for 15 months since the MPE, had eight months of sobriety between the 2016 DUI and the examination, and accumulated years of continuous sobriety between 2008 and 2016. As of the date of the hearing my client was in full sustained remission. As well the expert had no information or documentation suggesting that my client relapsed since the 2016 DUI, given that the testing he ordered for her in February of 2017 came back negative. The Commonwealth could not meet its burden of proof of a continuing dependency element.
Even absent a continuing alcohol dependency, the Commonwealth must still also prove that any illness or dependency, continuing or otherwise, has prevents the licensee from competently practicing nursing with reasonable skill and safety to patients. Here is where the expert testimony was clearly deficient.
The Board’s expert only found Respondent unable to practice nursing safely unless she is monitored. That is not the law. Recommending monitoring as a safety “precautionary measure” must be supported by the evidence. Here the expert did not avail himself of certain sources of information, whose names and contact information my client provided, to corroborate or counter the statements she made by during the examination.
Rather, the expert testified that “when someone gives you a list of people to call, 99 percent of the time they give glowing report, and I can’ t believe what they tell me… and .it may be true, but I can’t base my opinion on that.” Yet, when asked directly, the expert could not cite any evidence that, as of the hearing date, my client was unable to practice nursing with reasonable skill and safety to patients.
Please call me to discuss your case and pending prosecution.
March 2, 2018 Leave a comment
On February 28, 2018 Commonwealth Court decided Bentley vs. BPOA, — A.3d —- (2018). This cases expounds on how a licensing board abuses its discretion when it disciplines a licensee for criminal conduct not related to their license. In 2013 and 2014, Cosmetologist Bentley was convicted in two separate cases of possession with intent to deliver a controlled substance, forgery, aggravated assault, escape, and attempting to allude the police. Wow.
Bentley reported the convictions to her Board, which issued a Rule to Show Cause seeking to discipline her license under CHIRA. At the hearing, the Cosmetology Board prosecutor only presented the certified criminal conviction. This is the typical prosecutor practice. No witness testified as to the underlying criminal conduct.
During her hearing, through counsel, Bentley presented significant and appropriate mitigation evidence. Mitigation evidence included the delay of the prosecution versus the time of the criminal act; new and abundant family support; full and complete responsibility for the criminal act; the unique set of factors leading up to the criminal charges and her association with her then boyfriend and now co-defendant. Most importantly, she described her rehabilitation while in state prison. This rehabilitation included anger management, employment/cosmetology training, and new religious faith. She presented reasonable and appropriate community reputation evidence. This evidence corroborated her claim of being rehabilitated, remorseful for her actions, and turning over a new leaf.
The hearing officer suspended Bentley’s license for the balance of her parole (probably not long). The Cosmetology Board, as all boards do, issued a notice of intent to review the hearing officer’s decision. The Cosmetology Board rejected as modest Bentley’s mitigation evidence. The board suspended Bentley’s cosmetology license for three years based upon the criminal convictions. The Board rejected Bentley’s need for licensure to remain employed, her rehabilitation, and need to support herself.
Bentley appealed to the Commonwealth Court. She claimed the Board abused its discretion when it rejected her mitigation evidence and suspended her license based solely on the criminal convictions. Bentley alleged that the Board summarily ignored all of her uncontested mitigation evidence, which was not contradicted by any evidence the Commonwealth introduced in the certified criminal conviction. Bentley argued the suspension was manifestly unreasonable because the convictions bore no relation to the practice of cosmetology. Arguing the Board’s conduct capriciously disregarded her mitigation evidence absent explanation was an abuse of discretion.
On review the Commonwealth court agreed. Commonwealth Court defines capricious disregard as “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinarily intelligence could not possibly have avoided in reaching a result. When strong evidence contradicts contrary evidence, the adjudicator must explain the basis for its determination.” Absent a proper explanation why the adjudicator is rejecting overwhelming critical evidence, the board abuses its discretion.
As with many of my cases the time delay between criminal event, conviction, and disciplinary action may be five or six years. I argue Board delay which allows the licensee to practice of their profession for three or four years renders mute any board allegation that there is an emergent basis for extensive discipline. Suspension or revocation is not warranted if the board took six years to do it.
This case is an example of licensing boards tightening their belts and implementing a much stiffer enforcement environment. This appellate decision, and several other recent cases, reveal licensing boards routinely abusing their discretion and ignoring the law that guides their decisions. Non-law trained licensing board members shoot from the hip regarding the discipline that they want to impose upon their license fees. Many times, there is no legal basis for the discipline.
January 13, 2018 Leave a comment
On July 17, 2017 Robert Garlick was operating his motor vehicle in Erie County Pennsylvania. A state Trooper investigating his 1 car accident, suspected Mr. Garlick of being under the influence of alcohol. Garlick was arrested for suspicion of DUI. At the barracks the Trooper read verbatim the warnings contained in the July 2016 revised Penn DOT DL-26B form. This form provides the following warnings with regard to a chemical test of blood:
1. You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the Vehicle Code.
2. I am requesting that you submit to a chemical test of blood.
3. If you refuse to submit to the blood test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months.
4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to a blood test, you will have refused the test.
I and many other attorneys have argued that this language in this DL-26B form fails to comply with the statutory version of §1547(b)(2) in effect at the time; that these drivers are not advised that refusing the chemical test would result in enhanced criminal penalties (i.e. the penalties provided in Section 3804(c)) as § 1547(b) requires. While there is no statutory or other requirement that the DL-26 form contain appropriate warnings, or that the form be read verbatim, it is nonetheless the duty of the police officer to inform the petitioner of the statutorily required warnings. In other words, if the police officer recites the appropriate warnings from memory without the use of any form at all that is perfectly acceptable under the law. In this case, however, the Trooper confirmed that the only warnings he provided were those contained on the DL-26B Form which he read verbatim. Those warnings are not consistent with the law.
The law in effect in July of 2016 was 75 Pa.C.S.A. § 1547. Section 1547 of the Vehicle Code in effect on May 24, 2017, provides in pertinent part:
(a) General rule.—Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth 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 if a police Officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle:
(1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance)….
* * *
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the [D]epartment shall suspend the operating privilege of the person as follows:
(i) Except as set forth in subparagraph (ii), for a period of 12 months.
* * *
(2) It shall be the duty of the police Officer to inform the person that:
(i) the person’s operating privilege will be suspended upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical testing, upon conviction or plea for violating section 3802(a)(1), the person will be subject to the penalties provided in section 3804(c) (relating to penalties). 75 Pa. C.S. § 1547(a),(b).
On July 20, 2017, the governor approved Act 30 of 2017 which provides for an amendment to Section 1547(b)(2) removing the language requiring a police officer to provide the warnings relating to enhanced criminal penalties for refusal. This amendment was not effective on the date of Garlick’s incident. The fact that the legislature amended it is indicative of its acknowledgement that such an amendment was necessary to effectuate the change required of the warnings pursuant to Birchfield.
Drivers license attorneys and I argue PennDOT’s amended DL–26B form, created post-Birchfield, removes references to §3804 criminal penalties. This form is not consistent with the statutory framework of the motor vehicle code and not consistent with any legislative authority. Various courts have been confronted with post-Birchfield amended O’Connell warnings that do not contain the mandatory/ statutory language of § 1547(b)(2). These cases do not address the illegality of the DL-26B form and the incorrect recitation of law to the motorists deemed refusing.
Mr. Garlick objected to amended DL 26B reading. The Erie County Court of Common Pleas judge denied his legal argument. On appeal to the Commonwealth Court affirmed the trial judge and found PennDOT correctly altered its DL-26B form after the Birchfield case. As you recall, Birchfield v North Dakota, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), and Commonwealth of Pennsylvania jurisprudence interpreting it hold that 75 Pa.C.S.A. §1547(b) and Pennsylvania’s enhanced criminal penalties for refusing a chemical blood test are unconstitutional.
The complex criminal versus civil application of Birchfield, is born out in the case of Boseman v. Department of Transportation, Bureau of Driver Licensing, 157 A.3d 10 (Pa. Cmwlth. 2017), and Gray v. Commonwealth , Dep’t of Transportation, Bureau of Driver Licensing, No. 1759 C.D. 2016, 2017 WL 2536439, at *7–8 (Pa. Commw. Ct. June 9, 2017), reargument denied (Aug. 7, 2017). These cases maintain arresting officer’s statutory obligation to inform a motorist of the General Assembly’s defined § 1547(b)’s ramifications of a refusal – not PennDOT’s version.
Garlick v. PennDOT is the first case to decide the exact argument I have raised in several cases. Garlick rejects, though without explanation, the argument that the PennDOT revised DL-26 form is illegal. The court opinion adopts much of my and other defense counsel’s reasoning that; “It is true, as Licensee argues, that the language contained in Section 1547(b)(2)(ii) was mandatory at the time Trooper requested that Licensee submit to a blood test. However, while Section 1547(b)(2)(ii) then “command[ed]” that a warning about enhanced criminal penalties be given the purpose behind that provision is to make a licensee aware “of the consequences of a refusal to take the test so that he can make a knowing and conscious choice.” Dep’t of Transp., Bureau of Traffic Safety v. O’Connell, 555 A.2d 873, 877 (Pa. 1989); see Commonwealth v. Myers, 164 A.3d 1162, 1171 n.12 (Pa. 2017) (plurality) (“purpose of [Section 1547(b)(2)] ‘is to entitle arrestees to the information necessary to assess the dire consequences they face if they fail to consent to chemical testing, to ensure their choice in that regard is knowing and conscious, as we described in O’Connell’”
However, the court proceeds to state “Given our review of the current state of the law, Licensee’s argument that his license must be reinstated because he was not warned that he would be subject to no longer constitutionally permissible enhanced criminal penalties for refusing blood testing is unpersuasive. Trooper specifically and accurately warned Licensee about the consequences of refusing a blood test that remain following Birchfield, that is, the suspension of his license. Therefore, common pleas did not err when it denied Licensee’s appeal.”
This conclusion ignores the realty of the legislative dictate that the law as written and authorized by the General Assembly is the only permitted and regally authorized language Penn DOT can read to licensees. More appeal will follow because of this specious and ill-informed decision.
Still on the topic of refusals to submit to a breath or blood test, a new bill introduced into the General assembly in 2018, Senate Bill 553, makes changes to the state’s DUI laws and will take effect Jan. 11. Among them is a new fee for refusing to submit to a blood-alcohol test, after the U.S. Supreme Court ruled in 2016 that police can’t obtain blood samples without a warrant or consent. Under the revised law, drivers who refuse a blood-alcohol test but are convicted and lose their license will have to pay a “restoration fee” for their license of up to $2,000 — $500 for the first time a test is refused, $1,000 for the second time and $2,000 for the third and each time after. The law requires officers to inform suspects of the costs when they’re pulled over.