CHRIA – Expungements, Convictions, License Applications

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

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

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

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

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

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

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

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Pennsylvania Attorneys and their Disciplinary Process

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

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

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

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

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

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

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

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

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

Disclosing a Criminal Conviction on a Licensure Application — Part 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Immediate Temporary Suspension — Are Temporary for 180 Days Only

Board prosecutors file a petition called an Immediate Temporary Suspension (“ITS”) petition that allows licensing boards to temporarily and immediately suspend licensees’ ability to practice their profession.  These petitions are typically reserved against licensee involved in a Drug Act investigation or sexual assault case.  The ITS suspension lasts, at the most, for 180 days.
The ITS petition must be followed up with a preliminary hearing to address the probable cause alleged in the petition.  A hearing must be scheduled and conducted within 30 days from the date of issuance of the suspension order. These preliminary hearings are limited to evidence on the issue of whether it is more likely than not a licensee engaged in any type of inappropriate criminal behavior supporting a temporary but emergent, suspension. Licensees are entitled to be present at the preliminary hearing, with or without an attorney, cross-examine witnesses, inspect evidence, call witnesses, and offer evidence and testimony.
If the hearing examiner does not find the prosecutor met their burden of proof, the licensee’s license and other authorizations to practice are immediately restored. If the prosecutor met their burden of proof, the temporary suspension remains in effect until vacated, but in no event longer than 180 days, unless otherwise ordered or agreed.
Orders for temporary suspension cases still require prosecutors to commence a separate disciplinary action seeking to suspend, revoke or otherwise restrict a licensee.  This separate action is filed through of a charging document known as an Order to Show Cause (“OSC”). In the OSC, facts are not limited to those alleged in the ITS petition.  The order to show cause is typically filed within the 180 day time, while the immediate temporary suspension is pending.
If a prosecutor does not file any disciplinary action after 180 days, the licensee is able to file a petition for the administrative reinstatement of the license. There is no hearing required and the board shall reinstate the licensee’s license. License reinstatement will issue even if there is a pending disciplinary action.

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.

License reinstatement is independent of any criminal prosecution or terms of a criminal sentence. Criminal prosecution can not include in a guilty plea agreement provisions that preclude a licensee from practicing your profession.  Call me to discuss your case.

Pennsylvania’s Professional License Disciplinary Environment

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.

A Constitutional Right to Work

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.

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.

Drug Act, Automatic Suspensions, and the Time Period for Reinstatement

In November, I wrote a blog about  McGrath v. Bureau of Prof’l & Occupational Affairs, No. 5 WAP 2017, 2017 Pa. LEXIS 3109, at *12-13 (Nov. 22, 2017). Felony Convictions and License Reinstatement This case has now been interpreted in a second license revocation appeal. Joseph Thomas Acri, D.O., Petitioner v. Bureau of Professional…, — A.3d —- (2018). Acri, a D.O., medical license was suspended due to prescription fraud.   The State Board of Osteopathic Medicine (Board), automatically suspended his license to practice osteopathic medicine and surgery pursuant to section 14(b) of the Osteopathic Medical Practice Act (Act) based upon his felony convictions under The Controlled Substance, Drug, Device and Cosmetic Act (CSA), 35 P.S. §§ 780-101—780-144.   He appealed his 10 year ineligibility for license reissuance.

In McGrath, the key holding focuses on the 10 year license ineligibility after a Drug Act felony conviction.  The Court there ruled that the statute evidenced irreconcilable ambiguities regarding whether an individual must wait ten years before applying for reinstatement after having his or her license suspended for violating the CSA. In so holding, the Court noted that a general provision in the Law granted the licensing board with authority to reissue a suspended license, irrespective of a time frame; the section providing for a ten-year waiting period applied to “applicants;” the section dealing with a five-year waiting period concerned the “revocation” and not the “suspension” of a license; and the provisos relating to the “restoration” or “reissuance” of a license made it unclear through which provision the licensing board should consider an application for reinstatement.

After applying the general rules of statutory construction, the Court in McGrath determined that the statutory language remained ambiguous, and because the Law was penal in nature, the court construed it strictly and in favor of the individual. Therefore, the court reversed the licensing board’s order to the extent it imposed a license suspension for a mandatory period of not less than ten years and concluded that the licensing board should process any application for reissuance in accordance with the general, discretionary provision of the Law granting it the power to reissue a suspended license.

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McGrath’s nursing license was automatically suspended – not revoked – when she was convicted of violating the Drug Act (it seems a felony).  McGrath petitioned for reinstatement of her nursing sometime shorter than 10 years.  McGrath argued the Nursing Act’s provision for reinstatement allowed for the Board to grant such application within its discretion at any time, not earlier then 10 years stated under a separate provision of the Nursing Act.  The Court agreed, stating it is within the Board’s discretionary provision of the Law granting it the power to reissue a suspended license.

 

Acri argued the same logic and reasoning applied to the statutes and Board regulations applicable to license doctors under the Osteopathic Act, 63 P.S. § 271..2 and 14a.  Acri maintained the Board’s order automatically suspending his licenses for a period of not less than ten years was in error.  The Court agreed!   Importantly, at oral argument before the appellate court, the Board conceded that there were no statutory time constraints placed upon Petitioner and that he could apply for reinstatement or reissuance when he so desires.  This is the ruling of McGrath!

 

The Acri Court, however,  admonishes the Osteopathic Board and all other licensing Boards to implement this procedure.  “However, this concession does not alter the fact that the Board’s order strongly suggests otherwise, or is at least ambiguous. Although we have no doubt that, in the future, the Board will fulfill its promise to interpret and apply its order in the way that it said it would, this Court nevertheless has an obligation to address the legal issue presented to it.”

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Here the court is saying to the licensing boards, fix your Board disciplinary orders and remove the time period of disqualification for petitions for reinstatement.   The Court’s language is very instructive. “Therefore, pursuant to our decision in McGrath, we modify the Board’s order insofar as it imposed a mandatory five or ten year suspension on Petitioner’s license. In accordance with this memorandum opinion, any reissuance request from a suspension for violating the CSA shall be processed and reviewed under section 15(c)(6) of the Act.”

These two decisions continue in the process of allowing for license reinstatement or reissuance sooner, and not under and specific time period of preclusion.  The difficult legal issue now will be that an appeal of any board order denying license reinstatement for felony Drug Act conviction will be based upon an abuse of discretion standard and not an error of law standard.  The abuse of discretion standard is viewed in light of the general rule that all licensing boards are charged with the responsibility and authority to oversee the profession and to regulate and license professionals to protect the public health and safety. Barran v. State Board of Medicine, 670 A.2d 765, 767 (Pa .Cmwlth.1996), appeal denied 679 A.2d 230 (Pa.1996).

An abuse of discretion is generally defined as a misapplication of the law, a manifestly unreasonable exercise in judgment, or a final result that evidences partiality, prejudice, bias, or ill-will. Allegheny County v. Golf Resort, Inc., 974 A.2d 1242 (Pa.Cmwlth.2009); Pastorius v. State Real Estate Commission, 466 A.2d 780 (Pa.Cmwlth.1983). When reviewing the exercise of discretion by an administrative agency, the Court may not, in the absence of bad faith, fraud, capricious action or abuse of power, inquire into the wisdom of the agency’s action or into the details or manner of executing agency action. Slawek v. State Board of Medical Education and Licensure, 526 Pa. 316, 586 A.2d 362 (1990); Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 109 A .2d 331 (1954). Appellate courts may interfere in an agency decision only when there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions.  Although the Commonwealth Court is required to correct abuses of discretion involving penalties and sanctions imposed by a licensing board, the appeal court may not substitute its discretion for that of the board, which is an administrative body endowed with expertise in matters subject to its jurisdiction. Burnworth v. State Board of Vehicle Manufacturers, Dealers, and Salespersons, 589 A.2d 294 (Pa . Cmwlth.1991).

Call me to discuss your case on appeal.

 

 

 

A Drug Act Conviction – An Automatic License Suspension – Not Revocation – with A Right of Reinstatement.

Pennsylvania’s Nursing Law has existed since 1951.  Between 1951 and May 1985 the Nursing Law did not include a provision automatically suspending a license upon conviction of a Controlled Substance Act felony.  In 1985, the Legislature revised the statute by adding Section 16.1 which states:

A license issued under this act shall automatically be suspended upon . . . conviction of a felony under the [Controlled Substance Act] . . .. As used in this section the term “conviction” shall include a judgment, an admission of guilt or a plea of nolo contendere. . . . Restoration of such license shall be made as in the case of revocation or suspension of such license.

McGrath v. Bureau of Prof’l & Occupational Affairs, No. 5 WAP 2017, 2017 Pa. LEXIS 3109, at *12-13 (Nov. 22, 2017).  Once issued, nursing licenses may be suspended or revoked by the Board. As set forth in Section 14 of the Law, the Board may suspend or revoke a license if it makes certain findings. See 63 P.S. § 224(a), (b)(3). Additionally, the Board may refuse to issue an initial license for these same reasons.

McGrath’s nursing license was automatically suspended – not revoked – when she was convicted of violating the Drug Act (it seems a felony).  McGrath petitioned for reinstatement of her nursing sometime shorter than 10 years.  McGrath argued the Nursing Act’s provision for reinstatement allowed for the Board to grant such application within its discetion at any time, not earlier then 10 years stated under a separate provision of the Nursing Act.

She won in the Commonwealth Court and the Nursing Board took an appeal to the Supreme Count. The issue is “In view of the absence of an explicit directive for restoration of an automatically-suspended license which has not been revoked, should the court follow the 10 year reinstatement period or shorter.

I have written about the consequences of a Drug Act conviction many times.  The automatic suspension and delayed eligibility for either reinstatement or revocation present substantial impediments to practicing licensee.

The Pennsylvania Supreme Court in McGrath determines that after the Nursing Board has suspended a license, it may restore or reissue the license in its discretion (less than 10 years) subject to any disciplinary or corrective measure it could have originally imposed. § 224(b)(6). The process for doing so is reflected in Section 15 of the Nursing Law, which states, in pertinent part:

All suspensions and revocations shall be made only in accordance with the regulations of the Board, and only by majority vote of the members of the Board after a full and fair hearing before the Board…. The Board, by majority action and in accordance with its regulations, may reissue any license which has been suspended. If a license has been revoked, the Board can reissue a license only in accordance with section 15.2.
63 P.S. § 225. There are distinct procedures for the restoration of suspended versus revoked licenses, and it imposes a more restrictive regimen in relation to revoked licenses. In addition to the discretionary suspension of licenses under Sections 14 and 15, the Nursing Law contains a provision, added in 1985, for automatic suspension due to a felony conviction under the Controlled Substance, Drug, Device and Cosmetic Act.  63 P.S. § 225.1(b).  In particular, Section 15.1(b) of the Law states:
A license issued under this act shall automatically be suspended upon … conviction of a felony under the [Controlled Substance Act] …. As used in this section the term “conviction” shall include a judgment, an admission of guilt or a plea of nolo contendere…. Restoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license.
(emphasis added). In terms of the “hereinafter provided” clause of the above text, Section 15.2 indicates:
Unless ordered to do so by Commonwealth Court or an appeal therefrom, the Board shall not reinstate the license of a person to practice nursing … which has been revoked. Any person whose license has been revoked may reapply for a license, after a period of at least five (5) years, but must meet all of the licensing qualifications of this act for the license applied for, to include the examination requirement, if he or she desires to practice at any time after such revocation.
Finally, Section 6(c) of the Nursing Law, which relates to the qualifications for licensure, specifies that if a nursing license applicant has been convicted of a felony under the Controlled Substance Act, the Board may not issue a nursing license to that person unless: ten years have passed since the date of the conviction; the applicant demonstrates significant progress in rehabilitation so that licensure is not expected to create a substantial risk to patients or the public; and the applicant otherwise satisfies the licensure qualifications set forth in the Law. See63 P.S. § 216(c).
The McGrath Supreme Court specific states a professional nurse who has been licensed but whose license has been suspended is not similarly situated to an individual who has never been licensed—or, for that, matter, a person who was once licensed but whose license has been revoked. See generally Brown v. State Bd. of Pharmacy, 129 Pa. Cmwlth. 642, 646, 566 A.2d 913, 915 (1989) (acknowledging that a person holding a professional license still possesses a property right in that license even where it has been suspended (but not revoked), as a suspended license is “susceptible to revival”); Pittenger v. Bureau of Prof’l & Occupational Affairs, 142 Pa. Cmwlth. 57, 61–62, 596 A.2d 1227, 1229–30 (1991) (same, and expressing further that “when a license … is revoked, it is extinguished and the former possessor is returned to the same position he occupied had the license or privilege never been issued” (quoting Keeley v. State Real Estate Comm’n, 93 Pa. Cmwlth. 291, 296, 501 A.2d 1155, 1158 (1985))).
Having conclude that reinstatement is eligible in less that ten years, such is still within the discretion of the Board.  More importantly, the Court affirmed the proposition that

Section 15.1(b) reflects a clear legislative policy judgment that a felony violation of the Controlled Substances Act is an especially serious infraction warranting an automatic license suspension.  “The Board [still possesses] … discretion to restore such a license in the manner applicable to other license suspensions after conducting an appropriate administrative review.”
This huge legal victory, is however, probably short lived.  The McGrath Court simply counsel’s the Board to seeking revocation of a license, in accordance with the procedures outlined in the Nursing Law, following a conviction under the Controlled Substances Act. See63 P.S. § 224(a)(8) (authorizing the Board to impose discipline, up to and including revocation, based on the acquisition, possession, distribution, or use of a controlled substance for other than acceptable medical purposes).  (“The Board could have sought revocation of Ms. McGrath’s license [under Section 14] … but it did not.” (emphasis omitted)). If an automatically-suspended license is ultimately revoked, reinstatement would then be governed by Section 15.2.
The McGrath lesson is two fold.  The case reveals very poor legislative drafting that creates a loop-hole, for suspended licensees convicted of Drug Act violations, which allows them to seek to seek license reinstatement under ten years when they have a good reason.  However, either the General Assembly will fix this statutory construction problem or the Board will change its policy and start revoking licenses of those professionals convicted of Drug Act violations.
Call me to discuss your criminal matter and the status of your license.

 

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