Act 6 of 2018 — All Licensees Must Report Criminal or Disciplinary Charges with in 30 Days

Act 6 of 2018 is a new law in 2018. It represents a fundamental shift in Pennsylvania licensees’ duty to report criminal charges and disciplinary actions filed against them in any jurisdiction in the entire country. The General Assembly passed the new law in anticipation of medical marijuana. The enforcement environment is getting much stricter in Pennsylvania. Every Pennsylvania professional licensee must report the misdemeanor and felony criminal charges to their respective board within 30 days receipt of criminal charges. It is a disciplinary offense for any licensee to not report within 30 days of receipt of criminal charges.

Act 6 of 2018 specifically authorizes the The Bureau of Professional and Occupational Affairs (“BPOA”) to subscribe to JNET. My prior blogs discuss JNET, the criminal reporting database network to which the Nursing Board began subscribing.   JNET now levels the reporting responsibility and Boards learning of its licensees’ criminal conduct.  There was a significant difference between nurses and doctors, pharmacist, realtors, cosmetologists, and funeral directors (and all others) in their criminal charge reporting responsibilities. All licensees are now treated equal. Licensees can not wait to report — thinking at a preliminary hearing charges will be reduced to a summary offense, for which there is a guilty plea. The charging is the reportable event, not the end result.

This all began in 2014.  In late 2014 the General Assembly modified Pennsylvania professional licensing regulations to require nurses to report criminal charges, not conviction, within 30 day days of charges being filing. The BPOA utilized the last several years to create a new enforcement infrastructure and mechanisms to insure disciplinary action is initiated against all nurses who either reported or they learned of criminal conduct or did not report at all.  The reporting responsibility is in addition to reporting criminal charges upon licensee renewal.

Through JNET the Nursing Board became familiar with the criminal reporting subscription service and its information power. Obviously the Board created a flow chart starting at receipt of criminal information through to disciplinary charge initiation for failure to report. The Nursing Board worked out the differences between JNET and nurse reporting of charges. Steps between failure to report, Board investigation, document review, and charges have also been ironed out.

Apparently BPOA had a significantly positive experience with JNET’s notification process, allowing it to better enforce nurses’ reporting responsibility. Expanding 30-day reporting of criminal activity to all other 25 licensing boards will inundate the BPOA with information regarding licensees’ criminal behavior.  This will produce some delays in failure to report and initiation of criminal charges.

The Act also gives the BPOA prosecutor not just the authority but the command to initiate within 30 days an emergent suspension if a licensee’s criminal acts reveal a clear and present danger to the public. The licensee is afforded a preliminary hearing to contest the automatic license suspension. This “automatic suspension process” is not new.

All licensees were spared the obligation to report summary Drug Act violations. By this I mean summary charges for disorderly conduct written by cops giving a break to licensees caught with illegal marijuana. This reporting requirement was in the original versions of the bill but stricken from the final version. The Act includes authority for every Board to institute a schedule of fines for escalating number of failure to report charges.

Act 6 includes a very limited right of expungement. This is only for disciplinary action for failure to comply with continued education requirements. The law explicitly precludes any expungement of any disciplinary order by any board for any other offense. Aside from capping Board fines to $10,000, BPOA can enter a judgment against the licensee if the fine is not paid in 5 years.

Call me to discuss your case.

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Nurse, Doctors, and Intimate Relationships with Patients

Most health care related professional licensing schemes contain a uniform proscription against engaging in sexual intimacies with clients.  This sexual conduct bar does not depend on consensual or non-consensual acts.     Violating this conduct is the first and surest way to lose your professional license.  Prior relationships with current licensee and current relationships with former patients also creates huge problems.

The General Assembly, through the Pennsylvania Code defines  Sexual intimacies as romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include the following:

  • (i) Sexual intercourse, or any touching of the sexual or intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.
  • (ii) Nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature.
  • (iii) Sexual invitations.
  • (iv) Soliciting or accepting a date from a client/patient.
  • (v) Masturbating in the presence of a client/patient or encouraging a client/patient to masturbate in the presence of the licensed marriage and family therapist.
  • (vi) Indecent exposure, kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.  49 Pa. Code § 48.1
Section 49 Pa. Code § 21.146a, is a catch-all Pennsylvania Code provision setting forth as a procedural matter, not even a substantive violation,  a rule stating:
  • (a)  The consent of the patient to any sexual impropriety or violation is not a defense to any disciplinary charge for violation of the act or this subchapter.
  • (b)  Evidence of specific instances, opinion evidence, or reputation evidence of a patient’s past sexual conduct is not admissible in proceedings brought under §  21.148(b)(9) (relating to standards of nursing conduct).  The Board may consider sexual relationships between the nurse and the patient occurring prior to the professional relationship.
  • (c)  A nurse who attempts to raise as a defense an argument that conduct prohibited as a sexual violation or sexual impropriety was necessary or appropriate to the treatment of a patient shall be required to demonstrate competency in practice which relates directly to the treatment of sexual function or dysfunction. This competence may be demonstrated through educational training and supervised clinical experience. Appropriate discussions of sexual matters between a nurse and a patient shall be fully documented in patient records.

Apparently this conduct is prevalent in the psychology, psychiatry, licensed marriage and family therapist, and LSW and professional counselor professions.  I say this because the language in each of these licensing regulatory schemes is exact, precise, and consistently repeated throughout.   The law is very clear about this topic: 49 Pa.Code § 47.61 states: Sexual intimacies between a licensed social worker or licensed clinical social worker and a current client/patient, or an immediate family member of a current client/patient, are prohibited.  More importantly, licensed social workers and licensed clinical social workers may not accept as client/patients individuals with whom they have engaged in sexual intimacies.  For how long you ask?  Sexual intimacies between a licensed social worker or licensed clinical social worker and a former client/patient, or an immediate family member of a former client/patient are prohibited for 7 years following the termination of the professional relationship.

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Violation of these provision will warrant disciplinary action:

  • (a)  A violation of § §  47.61—47.63 (relating to prohibited conduct; former sexual partners as clients/patients; sexual intimacies with a former client/patient or an immediate family member of a former client/patient) will be deemed unprofessional conduct and will subject the licensed social worker or licensed clinical social worker to discipline under section 11(a)(2) of the act (63 P. S. §  1911(a)(2).
  • (b)   The consent of a former client/patient or immediate family member of a former client/patient to engage in sexual intimacies with the licensed social worker or licensed clinical social worker is not a defense in any disciplinary action brought under § §  47.61—47.63.

Pennsylvania does not recognize, along with all other states, that a mental health professional’s conduct in engaging in a sexual affair with a patient is actionable in tort (a medical malpractice action).  Thierfelder v. Wolfert, 617 Pa. 295, 327, 52 A.3d 1251, 1271 (2012).  However, our Commonwealth court routinely concludes the State Board of Medicine properly orders, and it is within their authority, that psychiatrist’s license to practice medicine be revoked on ground that he had engaged in sexual relations with his patients.  (“Revocation of psychiatrist’s license was reasonable sanction in light of his conduct.) Starr v. State Bd. of Med., 720 A.2d 183 (Pa. Commw. Ct. 1998); Morris v. State Bd. of Psychology, 697 A.2d 1034 (Pa. Commw. Ct. 1997).

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In these cases, the court concludes the Board of Medicine, and other boards, are entitled to deference in their determination of what constitutes “unprofessional conduct” as that term is used in Medical Practice Act (or their licensing schemes) section providing that practitioner may be disciplined for “unprofessional conduct.” 63 P.S. § 422.41(8).  As there is no per say rule of revocation, the regulatory language stated above in the counseling fields is overlapped by the Medical Practice Act.
There, sections 41(8) and (9) of the Medical Practices Act state that the Board shall have the authority to impose disciplinary or corrective measures on a board-regulated practitioner for

  • (8) Being guilty of immoral or unprofessional conduct. Unprofessional conduct shall include departure from or failing to conform to an ethical or quality standard of the profession. In proceedings based on this paragraph, actual injury to a patient need not be established.
    • (i) The ethical standards of a profession are those ethical tenets which are embraced by the professional community in this Commonwealth.
    • (ii) A practitioner departs from, or fails to conform to, a quality standard of the profession when the practitioner provides a medical service at a level beneath the accepted standard of care. The board may promulgate regulations which define the accepted standard of care. In the event the board has not promulgated an applicable regulation, the accepted standard of care for a practitioner is that which would be normally exercised by the average professional of the same kind in this Commonwealth under the circumstances, including locality and whether the practitioner is or purports to be a specialist in the area.
  • (9) Acting in such manner as to present an immediate and clear danger to public health or safety.  63 P.S. § 422.41 (8) and (9).

The Boards and the courts consistently determine that having sexual intimacies with clients breaches ethical standards, standards of care, and constitutes immoral or unprofessional conduct.   “Unprofessional conduct” includes “those breaches of trust, confidence and reliance, necessarily attendant upon the intimate relationship of physician and patient, which amount to gross abuses of the standards of professional conduct generally recognized as essential to the proper practice of medicine and surgery.”  As well, the specific regulations above clearly state that it is of no consequence that intimacies occur either before or after a terminated client relationship.  Importantly,

the professional who, during course of therapeutic relationship, engages in sexual intimacies with client may not absolve himself or herself from professional liability by ceasing to provide therapy while sexual relationship continues, or billing for services and masquerading the sex as a therapy. 49 Pa. Code § 41.61. Giddings v. State Bd. of Psychology, 669 A.2d 431 (Pa. Commw. Ct. 1995).
Call me to discuss your legal issues.
 

 

Alcohol Use Disorder and Self-Help Remedies — Licensees Be Careful

My blog topics sometimes originate from media outlets  discussing issues that impact my professional clients. NPR published an article this week discussing a new National Institute of Health (“NIH”) alcohol use disorder online self- help tool.  The attached link presents a significant web presence on alcohol consumption, alcohol use disorders, and other NIH discussion pieces on a national alcohol abuse epidemic. NPR, NIH Alcohol Use Disorder Article

The website reveals a national problem with alcohol consumption and provides a means for self diagnosis of one’s alcohol use disorder (“AUD”) through a DSM questionnaire.  In prior blogs I discuss the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) as the tool mental health professionals utilize to diagnose mental health conditions.  An Alcohol Use Disorder is one such identified mental health disease.  The DSM-V, the latest and current version, identifies any person meeting two of the following 11 criteria during a 12 month period as suffering from an alcohol use disorder.

  • Had times when you ended up drinking more, or longer than you intended?
  • More than once wanted to cut down or stop drinking, or tried to, but couldn’t?
  • Spent a lot of time drinking? Or being sick or getting over the aftereffects?
  • Experienced craving — a strong need, or urge, to drink?
  • Found that drinking — or being sick from drinking — often interfered with taking care of your home or family? Or caused job troubles? Or school problems?
  • Continued to drink even though it was causing trouble with your family or friends?
  • Given up or cut back on activities that were important or interesting to you, or gave you pleasure, in order to drink?
  • More than once gotten into situations while or after drinking that increased your chances of getting hurt (such as driving, swimming, using machinery, walking in a dangerous area, or having unsafe sex)?
  • Continued to drink even though it was making you feel depressed or anxious or adding to another health problem? Or after having had a memory blackout?
  • Had to drink much more than you once did to get the effect you want? Or found that your usual number of drinks had much less effect than before?
  • Found that when the effects of alcohol were wearing off, you had withdrawal symptoms, such as trouble sleeping, shakiness, irritability, anxiety, depression, restlessness, nausea, or sweating? Or sensed things that were not there?

As an an attorney representing medical or other licensed professionals possibly suffering from AUD, or other DSM-V criteria disorders, you’re wondering why I’m writing this blog.  The NIH web page, marketing campaign, and DSM assessment tool are very helpful for life correcting and treatment of a medical condition.

However,  licensed professionals should not seek treatment as a result of a self-help assessment in an on-line article, not conducted by a professional.  Such an endeavor could create significant potential professional license exposure. Obviously your health is a paramount concern.  Seek help if you need it.  But before doing so, understand there could be significant legal and professional ramifications.

Licensed professionals who self diagnose themselves and then seek drug and alcohol treatment through any number or type of treatment facilities opens a Pandora’s box of medical records and mental health disclosure issues and potential employment and license reporting responsibilities.   The wrong treatment facility could seek employment related information. Thereafter, under various state and federal regulations, these drug or alcohol treatment facilities (whom the licensee sought for help and stress reduction) become mandatory reporters to state professional licensing boards – causing huge stress. This creates the scenario where someone seeks inpatient treatment and the treatment provider reports a person’s drug or alcohol use to their professional licensing board. This exposes the professional licensee to a disciplinary process.

Self disclosure to any drug or alcohol treatment facility becomes a medical record subject to mandatory disclosure to a licensing board if a petition for a Mental and Physical Evaluation is ordered. By this I mean, once a treating facility reports a licensed professional as suffering from a drug or alcohol use disorder (without any type of criminal or workplace related event), the licensee’s words become the basis for disciplinary action.  Petitions to Compel Mental and Physical Evaluations require disclosure of the medical records from the self-help treatment facility.  The licensee’s words become the proverbial nail in the coffin of any disciplinary action.

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Before you proceed through an NIH or other self-help drug and alcohol use disorder assessment and then contact an inpatient treatment provider (which really just wants your money) please call to discuss the legal ramifications of your need for medical care. While your health and welfare are paramount, take into consideration the broader range of factors, including the status of your ability to work, maintain gainful employment, and practice your profession.  If your life is already full or stress (from family, marriage, work,  finances, and life), causing professional downfall, legal fees, or disciplinary action will just add to the current stress level. Eliminating additional stress is a huge factor in maintaining sobriety, maintaining confidence, and psychological stability.

PHMP versus RAMP: A Big Difference

I write blogs about Pennsylvania professional licensing legal developments.  I am also licensed to practice law in New Jersey. I routinely counsel Pennsylvania professionals concerned about their NJ licenses.  There is a huge difference between Pennsylvania’s PHMP and New Jersey’s RAMP (“Recovery and Monitoring Program “).  RAMP was established in 2003 as an Alternative to Discipline program, managed by the Institute for Nursing for the New Jersey Board of Nursing. http://njsna.org/ramp/

Pennsylvania medical professionals who live in New Jersey or Pennsylvania residents also licensed in NJ, but only use their PA  licenses, are exposed to RAMP.  (Obviously also are NJ licensees working in NJ.)  Any Pennsylvania medical professional, who is also licensed in NJ – who receives Pennsylvania PHMP letter – must consider how RAMP will respond if Pennsylvania restricts their professional license.  Any Pennsylvania disciplinary action based upon an alleged impairment of alcohol and drugs will come to NJ’s RAMP attention. Also, NJ licensees must carefully respond to RAMP communications.

A recent NJ appellate case reveals just how different RAMP is from Pennsylvania’s PHMP.  On November 16, 2017 a New Jersey appellate court decided In The Matter of the license of Kevin Rafferty, RN.  He was a certified registered nurse anesthetist and an Advanced Practice Nurse.  Mr. McCafferty‘s licensing problems began in 2013 when three co-workers smelled alcohol on his breath during work.  They levied anonymous complaints to the Nursing Board, which contacted RAMP. This was the only evidence against him.

RAMP contacted  Rafferty via letter, setting forth the allegations that he may have problems related to mental health and or substance-abuse that could affect his ability to practice his profession.  RAMP offered him a private letter agreement and enrollment for a minimum of 90 days.  During this time RAMP requires random observed drug tests, monthly self evaluation reports, and regular attendance in peer support meetings.  Post-enrollment, RAMP then requires an initial intake evaluation.  In my experience this evaluation typically  finds the professional needs to be in RAMP for 12 months.  The 90-day initial RAMP invite is a fraud!

It is this context (which the McCaffrey case reveals)  that RAMP’s enrollment process is distinctly different from Pennsylvania’s PHMP.  RAMP’s initial letter of invite is not really an offer, but an order to each licensee.  PHMP’s initial “Letter of Concern” is a non-mandatory offer for help and does not constitute a demand to enroll.

RAMP’s initial 90-day evaluation period is not based upon a medical expert assessment or determination the licensee suffers from a drug or alcohol addiction that renders them an impaired professional. That assessment comes only after RAMP enrollment and signing of the RAMP 90-day contract.  The licensee is then stuck.

The RAMP evaluation takes place after enrollment, when the agreement sign requires compliance with the terms and condition of the program.  Licensee thinking they are just going to get the 90 days meet the expert, who determines more time in RAMP is required. Now they are stuck and can’t break the agreement.

PHMP’s letter of concern offers an assessment and voluntary disclosure to determine in an impairment exists.   PHMP requires either a finding of an impairment or a voluntary admission of such before enrollment in the program.  Pennsylvania Voluntary Recovery Program (“VRP”) questionnaire includes a provision that the licensee admit to suffering from an impairment.  This is the voluntary admission part of the VRP contract.  I counsel against signing this agreement.  NEVER ADMIT you are an impaired professional.Wait for the Board to file a formal petition to Compel and Mental and Physical Evaluation.  (See my other blogs.)

McCaffrey did not respond the the initial 90 day RAMP letter.  He was determined to be “non-compliant“ with RAMP.  RAMP notified the Nursing Board that “it could not insure the board or the public that McCaffrey was safe to practice.”  The Board subpoenaed McCaffrey to appear before a committee of the Board to answer questions about  appearing at work smelling of alcohol.  McCaffrey appeared, denied the allegations, and brought numerous letters of reference.  The Board still concluded he should enroll in RAMP and proposed a 2nd private letter agreement requiring McCaffery participate.  He refused.

The Board issued a provisional order of discipline compelling McCaffrey to submit to an evaluation and monitoring to determine whether his continued practice may jeopardize the safety and welfare of the public.  This is a distinct different legal standard and burden of proof compared to Pennsylvania’s impairment burden of proof.

NJ’s licensing boards and Courts have long recognized a “community care-taking responsibility” as legal justification that allows government license restriction.  The NJ Nursing Board thereafter issued a final order compelling McCaffrey to enroll in RAMP. The Board determined such was required to satisfy its “mandate to protect the public.” McCaffrey‘s failure to comply with this final order was reported to the national practitioner data Bank. Still no medical determination of any impairment!

McCaffery appealed claiming there was no medical or legal basis to compel RAMP and that absent such, a general order requiring such denied him due process of law.   The appellate court reviewed McCaffrey’s objections to the Board’s order. The appellate court determined the Board maintains oversight over professional licensing for nurses pursuant to the Nursing Law.  Because the New Jersey professional nursing law requires an applicant not be a “habitual user of drugs and alcohol”, McCaffrey‘s potential for alcohol and drug abuse rendered him suspect of meeting the legal requirements of both the Nursing Licensing and Nurse Anesthetist laws.  The court found the Board had the authority even absent a medical conclusion of any impairment.

McCaffrey complained that absent an expert determination that he was impaired or suffered from a chemical dependency, he met the requirements for licensure.  The Board rejected this argument. The court determined the Nursing Board was within its statutory authority based upon the factual allegations, even without even an expert evaluation, that the Board was within its authority to compel McCaffrey to participate in the 90 day private letter RAMP program.  The decision was handed down in 2017.  McCaffrey’s work place situation occurred in 2013.

For the many licenses that practice in Pennsylvania, these procedural differences between the PHMP and RAMP are significant and should be respected. Pennsylvania’s regulatory and statutory framework allow for licensee participation in and evaluation by a board chosen medical expert before mandatory enrollment in the PHMP.  NJ does not allow for this pre-enrollment evaluation, compels participation, and then subjects the licensee to a bait and switch disciplinary monitoring program.

Please call me to discuss either of these programs and any letters you receive from your licensing board.

 

Medical Marijuana and the Pitfalls for the Professional

The pitfalls of medical marijuana for the professional are more evident every day. Several weeks ago I wrote a blog on the challenges facing licensees who seek a medical marijuana card due to a medical condition. Prescription Drug History   In another blog I wrote about the complexities facing medical professionals who seek to become medical marijuana authorized prescribers.

 

In Pot Doc Article the Philadelphia Inquirer reveals Pennsylvania’s Medical Board, Health Department, FBI, and DEA investigatory practices in this field.  If you are a medical professional, please read this article.  I represented a peripheral, part time doctor moon lighting for Dr. Nikparavarfard.

Doctors working in a medical practice that includes a “Pot Doc“ – doctors that are authorized to write prescriptions for medical marijuana – are subjecting themselves to unnecessary oversight and inquiry.  When a  “Pot Doc” exposes himself to both criminal and licensing  investigations, they expose all nurses or doctors employed by that practice.  Drug Act violations are routinely found and criminal charges filed!.

The FBI and DEA’s investigation of Dr. Nikparvarfard’s Scranton office – the Pot Doc – necessarily also included  my client’s prescribing patterns.  An invasive, long running investigation turned to her simply because the police were investigating that practice and needed leverage against Dr. Nikparvarfard.  Experienced and accomplished undercover FBI, DEA, Health Department agents then ensnared my client.  Again, only because they were looking at Dr. Nik’s practice.

My client was not the prescribing “Pot Doc.”  However, the overarching Pot Doc investigation expanded to any potential criminal activity discovered within the medical practice.  But for my client working for the Pot doc and his medical practice, my client would not have been under surveillance. Unfortunately she was.

Once my client became known to FBI, her prescription and Medicaid/Medicare billing patterns were easily examined, patients contacted, and medical procedures evaluated.  Undercover patients were sent to the practice.  All because of the attention brought on the practice by Pot Doc Nikparvarfard.

One bad apple spoils the pie; two or three bad apples subject professionals to jail.  These types of investigations render medical professionals (nurses and doctors) unemployed and potentially unemployable.  Thereafter, professionals are the target of multiple investigations by medical boards, DEA,  Health Departments, and potentially the U.S. Department of justice.  But for my client’s employment with a Pot Doc, she would not have come under any surveillance.

This case is but one example of many to come.  Overarching public safety concerns, opiates in the news, and an aggressive enforcement environment of a new regulatory scheme create huge risks for both Pot Docs and those doctors and nurses who work with them.

Please call me to discuss

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.

Road Riding in the Counties

My personal and business travel is taking me to more counties throughout the Commonwealth of Pennsylvania than ever before. The local courthouse houses in the county seats are really interesting for me. The court houses — arenas of legal combat — are throw backs to more glorious days when the local big trial was the event of the year.
In the past I took for granted these architectural gems that are spread throughout the various townships and boroughs within which I practice.   Now, I seek out and explore the courthouses. Whether by car or bike, I am having fun.
This spring I bought myself a road bike. I ride ferociously around the eastern part of Pennsylvania. I have the pleasure of routinely riding through Philadelphia,  Conshohocken, Norristown, and Valley Forge Park. All are within 5-15 miles of my house.  Sometimes I ride from my house to Philadelphia and back.
A recent Saturday took me on a further ride — from West Chester to the City of Lancaster. The road ride began in West Chester and ended in Lancaster County, behind the Court House. We departed West Chester through its southern rolling-hills of Brandywine Township. We followed Brandywine Creek through East Bradford Township, Downingtown  to West Fallowfield Township. One word — marvelous.
After 90 minutes the group ride, with me at the back of the pack, entered Lancaster County. I was greeted by signs for farm fresh brown eggs, personally constructed homes, garages, sheds, and wonderful antique tractors.
Tractors, tractors, tractors. But not your ordinary tractors.  These were green, yellow and red tractors, pulled by horses. The drawn mowing tractors were hard at work, gas free, mowing lawns and fields. Some tractors were too tired to work, gathering rust. There was no worry about rubber tires rotting. Metal wheels needed no repairs.
The morning aromas changed with each turn in the road. Pungent cow, horse, pig dung awoke my sinuses.  Crushed wild blackberries and dripping vines of honeysuckles permeated homesteads. The morning dew clung to grass blades and tree branches through the Brandywine Creek bike route. Entering Lancaster and riding down Duke Street brought with it fresh bakery smells and the Lancaster County brewing Company.
In each county seat, I look for a small coffee shop. Lancaster’s Prince Street Café did not disappoint. The fresh cappuccino after a 50 mile ride awakened all of my exhausted senses. Orange juice and fresh eggs on a croissant made me even happier. The pictures below reflects the quaintness of the café and the wonderful effort the bakers and barista’s gave the Saturday morning breakfast crowd.
An unexpected joy came as I began to get ready for my drive home. Just to the west of the Prince Street Café is the Lancaster County Donuts Shop. Homemade donuts and holes are sold with every conceivable topping — as if I was in an ice cream shop — tantalized my taste buds. The sublime chocolate with vanilla cream cheese frosting carried me through the rest of my day.
I could not have been happier. Content and satisfied by a hard work out, great ride with new friends and a bulging stomach.  Blair and Clearfield counties also did not disappoint. I’ll keep you posted.

A Fringe Benefit of Practicing Law in the Commonwealth of Pennsylvania

There are many benefits to being a licensed, practicing lawyer in this country and Commonwealth.  One fringe benefit (and I mean fringe) of practicing law in the Commonwealth of Pennsylvania is driving through and to the counties in this jurisdiction.  Practicing in Delaware, Chester, York, Lebanon, Dauphin, Luzerne, Montgomery, Lackawanna, Berks, Bucks, Carbon, Lancaster, Northampton, Monroe, Clearfield, Blair, Center counties, I drive throughout the Commonwealth.  The word Commonwealth does not do justice to the beauty of the counties in which I travel and the courthouse in which I practice.

Monroe County Court House Square

 

One recent cool, spring day I had the pleasure of a relaxing drive from my home in the suburbs of Philadelphia to the Monroe County Courthouse in the quaint hamlet of Strousburg, Pa.  I left my home at 7:00 am.  By 7:45 I entered the Lehigh Valley and was approaching the scenic Delaware River Water Gap area.  I left Philadelphia in a heavy fog, arriving in the Lehigh Valley as the fog began dissipating from the  mountain valleys.   Steamy slopes and long shadows were cast as the sun climbed over the hills and heated the morning sky.  Route 78’s mountain passes were freed from their foggy blanket revealing the height of the tree-topped slops.  What a peaceful ride.  The rich majesty of Penn’s Woods (the translation of the word Pennsylvania) became evident.

The coffee shop on the square at the Monroe County Court House, Strousburg, Pa

Home made scones, croissants, and danish.

Upon arriving in Monroe county and the courthouse square, I had the pleasure of stopping for coffee at the café duet. Pictured above, I partook in a croissant and perfect cappuccino in the a sun-lit square.  I could have been in any hamlet or borough in another country.  I, however had the pleasure of attending to my profession, take care of a valued client, and being given the opportunity to enjoy Monroe County.

In between mentally organizing my case, I day dreamed about the incredible mountain bike riding trails that snaked through the various gorges, streams, and mountain passes. Exercising both my mind and body is a wonderful activity I engage in on a daily basis.  I will be in Center, Blair, and Clearfield counties over the next several weeks.  I will cherish my time and my profession while I enjoy the best the Commonwealth has to offer this summer.

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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.
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