The Drug Act — Pa Doctors’ Reporting Responsibilities for Arrest, Conviction, and Automatic Suspensions

Every day I read appellate cases that review disciplinary decisions of Pennsylvania’s licensing boards. A recent case discusses physicians’ unique arrest and conviction reporting responsibility to the State Board of Medicine.  Physician’s reporting of arrests versus convictions depends on the crime involved.

Pennsylvania’s MCare’s law regarding malpractice insurance coverage, 40 P.S. § 1303. 903(4), identifies physician’s reporting responsibilities if a professional liability claim is asserted them, disciplinary action taken against them from another jurisdiction, criminal sentencing for any case, and the arrest of a physician in four very limited classes of crimes. These offenses are:

  • following offenses in this Commonwealth or another state:
    • (i)  18 Pa.C.S. Ch. 25 (relating to criminal homicide);
    • (iii)  18 Pa.C.S. Ch. 31 (relating to sexual offenses).
    • (iv)  A violation of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act.
Physicians’ limited reporting responsibilities means arrests for following offenses does not trigger reporting to the state: domestic violence offenses, DUI’s offenses, theft offenses, or a string of federal related non-drug criminal arrest offenses.   Physicians do have to report arrests alleging a sex offense, homicide, aggravated assault, and a violation under the Drug Act.
Understanding what offenses are Drug Act offenses, not just possession or selling drugs, under The Act that are important.  Drug Act charges include patient record keeping, charting issues, and properly recording and dispensing medications.  Section 780-111 of the Drug Act focuses  on professional prescription, administration, and dispensing of drugs.  Here, the Act states:
  • (a)  Except when dispensed or administered directly to the patient by a practitioner or his authorized agent, other than a pharmacist, to an ultimate user, no controlled substance in Schedule II, may be dispensed without the written prescription of a practitioner, except in emergency situations, as prescribed by the secretary by regulation. No prescription for a controlled substance in Schedule II may be refilled.
  • (b)  Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in Schedule III or IV, may be dispensed without a written or oral prescription. Such prescriptions shall not be filled or refilled more than six months after the date thereof or be refilled more than five times after the date of the prescription unless renewed by the practitioner.
  • (c)  No controlled substance in Schedule V may be distributed or dispensed for other than a medicinal purpose.
  • (d)  A practitioner may prescribe, administer, or dispense a controlled substance or other drug or device only (i) in good faith in the course of his professional practice, (ii) within the scope of the patient relationship, and (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession. A practitioner may cause a controlled substance, other drug or device or drug to be administered by a professional assistant under his direction and supervision.
  • (d.1)  A practitioner shall not prescribe, administer or dispense any anabolic steroid for the purpose of enhancing a person’s performance in an exercise, sport or game. A practitioner may not prescribe, administer or dispense any anabolic steroid for the purpose of hormonal manipulation intended to increase muscle mass, strength or weight except when medically necessary.
  • (e)  A veterinarian may prescribe, administer, or dispense a controlled substance, other drug or device only (i) in good faith in the course of his professional practice, and (ii) not for use by a human being. He may cause a controlled substance, other drug or device to be administered by a professional assistant under his direction and supervision.
  • (f)  Any drug or device dispensed by a pharmacist pursuant to a prescription order shall bear a label showing (i) the name and address of the pharmacy and any registration number obtained pursuant to any applicable Federal laws, (ii) the name of the patient, or, if the patient is an animal, the name of the owner of the animal and the species of the animal, (iii) the name of the practitioner by whom the prescription order was written, and (iv) the serial number and date of filing of the prescription order. In addition, the following statement shall be required on the label of a controlled substance: “Transfer of this drug to anyone other than the patient for whom it was prescribed is illegal.”

§ 780-112 focuses on records of distribution of controlled substances

  • (a)  Every person who sells or otherwise distributes controlled substances, shall keep records of all purchases or other receipt and sales or other distribution of such substances for two years from the date of purchase or sale. Such records shall include the name and address of the person from whom purchased or otherwise received or to whom sold or otherwise distributed, the date of purchase or receipt or sale or distribution, and the quantity involved: Provided, however, That this subsection shall not apply to a practitioner who dispenses controlled substances to his patients, unless the practitioner is regularly engaged in charging his patients, whether separately or together with charges for other professional services, for substances so dispensed.
  • (b)  Every practitioner licensed by law to administer, dispense or distribute controlled substances shall keep a record of all such substances administered, dispensed or distributed by him, showing the amount administered, dispensed or distributed, the date, the name and address of the patient, and in the case of a veterinarian, the name and address of the owners of the animal to whom such substances are dispensed or distributed. Such record shall be kept for two years from the date of administering, dispensing or distributing such substance and shall be open for inspection by the proper authorities.
  • (c)  Persons registered or licensed to manufacture or distribute or dispense a controlled substance, other drug or device under this act shall keep records and maintain inventories in conformity with the record-keeping, order form and inventory requirements of Federal law and with any additional regulations the secretary issues. Controlled substances in Schedules I and II shall be distributed by a registrant to another registrant only pursuant to an order form.
Violations of either of these two subsections and their itemized list, by either doctors or other health care nurses is dealt with under section § 780-123, revocation of licenses of practitioners.
  • (a)  Any license or registration heretofore issued to any practitioner may either be revoked or suspended by the proper officers or boards having power to issue licenses or registration to any of the foregoing, upon proof that the licensee or registrant is a drug dependent person on the use of any controlled substance, after giving such licensee or registrant reasonable notice and opportunity to be heard.
  • (b)  The appropriate licensing boards in the Department of State are hereby authorized to revoke or suspend the registration or license of any practitioner when such person has pleaded guilty or nolo contendere or has been convicted of a felony under this act or any similar State or Federal law. Before any such revocation or suspension, the licensee or registrant shall be given a hearing before the appropriate board. At such hearing the accused may be represented by counsel and shall be entitled to compulsory attendance of witnesses.
  • (c)  The appropriate licensing boards in the Department of State shall automatically suspend, for a period not to exceed one year, the registration or license of any practitioner when the person has pleaded guilty or nolo contendere or has been convicted of a misdemeanor under this act. The district attorney of each county shall immediately notify the appropriate State licensing board of practitioners subject to the provisions of this section. However, the provisions of such automatic suspension may be stayed by the appropriate State licensing board in those cases where a practitioner has violated the provisions of this act only for the personal use of controlled substances by the practitioner and the practitioner participates in the impaired professional program approved by the appropriate State licensing board for a period of between three and five years, as directed by the appropriate licensing board. If the practitioner fails to comply in all respects with the standards of such a program, the appropriate licensing board shall immediately vacate the stay of the enforcement of the suspension provided for herein. Automatic suspension shall not be stayed pending any appeal of a conviction. Restoration of such license shall be made as in the case of a suspension of license.

35 Pa. Stat. Ann. § 780-123

Case law addressing practitioner’s objections to the emergent and disparate impact Drug Act convictions and their automatic suspensions have on doctors is very clear.   Board discretion and legislative prerogative regarding public safety out weight a physician’s property right in their license.  “Licensed medical practitioners’ unique access to controlled drugs and a physician’s appropriation of this access for illegal purposes presents a danger to the Commonwealth, for which the General Assembly has legitimately and rationally adopted a separate policing device.”  Call me to discuss your case.
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New Registration Requirement Rules

I write  frequently about the Pennsylvania General Assembly routinely adding criminal and civil consequences to convicted sex offenders ‘s sentences after judicial pronouncement of the sentence. Modifying Megan’s Law registration requirements for convicted sex offenders is the most prominent of these tough-on-crime fighting, constituent-appeasing measures. Megan’s Law V is called the Sex Offender Registration and Notification Act. (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41.
 
The Pennsylvania General Assembly has modified and/or extended Pennsylvania’s Megan’s Law so many times that our Commonwealth now has five different Megan’s Law registration statutes. Parts of Megan’s Law, II-IV were declared unconstitutional. Megan’s Law V’s December 20, 2012 reclassification and extension of registration scheme for sex offenders – whether under supervision or not as of December 20, 2012- is now being attacked.  Defendants who complied with all terms and conditions of their criminal sentences and originally imposed registration requirements object to their reclassification. Successful legal arguments have focused on this provision.

On September 28, 2016 the Pennsylvania Supreme Court finally decided several consolidated cases addressing this issue.  In Commonwealth v. Martinez,  2016 Pa. LEXIS 2183 (Sep. 28, 2016), the Court resolved the legality of the 2012 reclassification scheme against otherwise compliant registrants. Three combined cases present the question of whether the state police can extend or re-enroll in the sexual registry defendants who satisfied all terms and conditions of an original guilty plea agreement and were not under probation or parole supervision as of December 20, 2012. The individuals may still have had to register under Megan’s law I-V.  These cases do not apply to open plea agreements or sentences handed down after a jury or bench trial.

Factually, after December 20, 2012 the state police sent letters out to Megan’s Law registrants compelling re-enrollment or extension of their registration requirements.  Registration requirements were extended from 10 to 25 years and 25 years to life depending on the criminal conviction. If registration had been completed but the convicted offense registration was changed to 25 years instead of 10 years, re-enrollment was demanded.  Martinez and other individuals around the Commonwealth contested reclassification because they complied with all aspects of their criminal plea agreement, may have concluded probation/parole supervision before December 2012, and may have even completed their registration responsibilities.

Some Cases were filed against the state police as injunctions, writs of mandamus, or a petitions to enforce guilty plea agreements. Many of these cases failed for any number of reasons. Case rulings allow reclassification against defendants who violated any term or condition of their guilty plea agreement.  Another basis for allowing reclassification is being charged with violating the registration requirements of their original sentence.  Even being charged for a reporting violation after 2012 became a reason for further reclassification.

The Martinez defendants (as well as several of my clients) satisfied their terms of incarceration with no violations or write ups, honored all probation or parole obligations, and were fully compliant with (or completed) all registration requirements. The state police still contacted them to either re-initiate or extend registration under Megan’s Law V.
 
I, like Martinez’ counsel, filed motions to enforce their guilty plea in various Common Pleas courts around the state.  I sought, like Martinez, to enforce the terms of their pre-2012 plea agreements.  Martinez focuses exclusively on the sanctity pleas agreement as a contract into which the government entered with these defendant.  Focusing defendants’ compliance with their side of the bargain, Martinez, and one other case, Commonwealth v. Hainesworth, 2013 PA Super 318, 82 A.3d 444 (Pa. Super. 2013),  present similar situated defendants.  In those cases the Superior Court of Pennsylvania held that the Contract Clauses of the Pennsylvania, Pa. Const. art. I, § 17, and United States Constitutions, U.S. Const. art. I, § 10, cl. 1, prohibit the Pennsylvania Legislature from enacting laws that retroactively impair contract rights.
The Martinez case question was whether Hainesworth’s ruling, baring reclassification for defendants who complete the terms of the guilty plea contract before December 20, 2012, is proper.  The court said yes and affirms Hainesworth.  The court states “convicted criminals must fulfill the promises they make in connection with plea agreements. See Commonwealth v. Wallace, 582 Pa. 234, 870 A.2d 838, 843 n.6 (Pa. 2005) (“The defendant, on the other hand, accepts this benefit with the implicit promise that he will abide by the terms of the agreement and behave in accordance with the legal punishment imposed by the court.”).  For these defendants, the Court rules, the legislature must  honor the guilty plea agreement/contract its District Attorneys entered and the court approved. 
The issue now is does the guilty plea colloquy adequately set forth with particularity the registration requirements that are part of the guilty plea agreement.  Martinez may not apply to a cases in which the Megan’s Law terms are not stated in the record or were not negotiated.  If there is an open plea, these cases may not apply.  In the late 1990 and early 2000’s in many cases the Commonwealth simply did not negotiate terms of Megan’s Law in the guilty plea agreement or state it was negotiated on the record. 
Some experienced counsel tried to have the record reflect the plea negotiations to lower criminal charges were engaged to reduce the registration time (from a Tier II – 25 year offense to a Tier I – 10 year offense).  In those cases registration terms were reduced in guilty plea agreement by pleas to lower criminal charges.  Martinez find such stipulations in the three consolidated cases.  In Philadelphia and the local counties,  registration notification provisions were always placed in the plea agreement, with a separate signed Megan’s Law Registration form, and in colloquy at a sentencing. 
In the less sophisticated courts sometimes registration terms were not discussed in either the plea or sentencing hearings.  Importantly, counsel must secure both of these transcripts to determine in Martinez applies to the case.  Also, Martinez only applies to guilty pleas (not open pleas) for which a defendant was not under any jail, parole, or probation supervision as of December 2012.   Call me to discuss your case.
 
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Professional Licensing Board’s Discretion and Appellate Case Review

The discretionary decision making process of Pennsylvania’s twenty six professional boards is a huge appellate issue many cases confront.  In a recent case, board discretion is discussed in the context of non-criminal conduct and the Medical Board’s authority to police its own licensees.  The case is Mosuro v. Bureau of Prof’l & Occupational Affairs, 2016 Pa. Commw. Unpub. LEXIS 717 (Commw. Ct. Oct. 13, 2016).

Dr. Mosuro was disciplined in the state of Texas as a result of a medical relationship with a pain management clinic.  Dr. Mosuro was compensated by the owner of the clinic, an Advanced Practical Nurse (“APN”) licensed under Texas law, with a flat fee for each prescription he wrote for a clinic patient. In turn, the APN referred patients to Dr. Mosuro for other treatment.  Upon being investigated by the Texas Medical Board, but with no criminal charges being filed, the doctor enter into a consent agreement acknowledging violations State of Texas  Medical Board laws, rules, codes, and regulations due to his failure to supervise the APN and allowed her to prescribe medications that were non-therapeutic while acting under his prescriptive delegation. Charts were also not adequately documented and prescriptions were not supported by objective medical findings and data.  In sum, he allow his prescriptions to be used in a pill mill.

The Texas Board of Medicine issue the public reprimand and a $10,000 fine. He was also given a prescription prohibition on ordering, prescribing, or dispensing scheduled medication services.  The licensing authorities of Maryland, Tennessee, Alabama, and Virginia imposed similar discipline on Dr. Mosuro ‘s license.

The Commonwealth of Pennsylvania commenced disciplinary proceedings based upon Texas’ disciplinary action, accusing the doctor under 63 P. S. § 422.41 of improper prescribing of controlled substance through his involvement with the pill mill and his failure to properly supervise a nurse practitioner as required under Texas law. Standard of care violations, documentation of medical record violations, and unprofessional conduct were perceived by the Pennsylvania Medical Board as very serious.

After hearing in Pennsylvania, the hearing examiner proposed an Order and Adjudication of a $500 civil penalty and indefinitely suspended Doctor Mosuro license to practice medicine in the Commonwealth of Pennsylvania. Upon review, the Pennsylvania Medical Board excepted the hearing examiner’s Findings of Fact and Conclusions of Law but rejected the recommended order. Rather, the Medical Board ordered a public reprimand on Dr. Mosuro ‘s permanent licensing record, a $5000 civil penalty, and an indefinite suspension of his license to practice medicine and surgery in the Commonwealth of Pennsylvania. Reinstatement may be sought upon compliance with the Texas Board order and his Texas medical license being reinstated to unrestricted status.  This totaled over $15,000 in fine for a doctor unable to practice medicine.  This Board issued this order even though Dr. Mosuro did not have an active Pennsylvania medical license, was not practicing in the Commonwealth of Pennsylvania, and was disciplined by many other jurisdictions as a result of the same conduct.  PENNSYLVANIA’S DISCIPLINE WAS THE HARSHEST OF ALL JURISDICTIONS.
Dr. Mosuro appealed to the Commonwealth Court.  The scope of the Commonwealth Court appeal is limited to determining whether the findings of fact are supported by substantial evidence and whether the board committed errors of law or constitutional violations.” Blair v. Bureau of Prof’l & Occupational Affairs, State Bd. of Nursing, 72 A.3d 742, 750 (Pa. Cmwlth. 2013).  In review of the record, the appellate court concludes  the Medical Board’s extensive discipline based solely upon the opioid prescription drug abuse crisis is proper. The Board restates with approval the Pennsylvania Medical Board citation to recent Pennsylvania legislative findings regarding human suffering associated with addiction and how its epidemic has reached families throughout the Commonwealth.
The Medical Board and the Commonwealth Court use this case as a example of how to ensure public safety from medical practitioners who use their medical licenses to create “rogue pain management clinics” in Pennsylvania. Citing statistics that Pennsylvania ranks seventh in the nation for drug overdoses from prescription pain killers and the role of pill mills in the overdose epidemic, the Court approves the Medical Board utilizing these facts to “engage in its purpose under the medical practices act of safe guarding the public health and welfare”.

The Court did not address the Board’s role of insuring individual penalties to individual licensees be based upon their case facts. The Court affirms Board citation to broad policy language that the prescription overdose epidemic cannot be ignored. The Commonwealth Court concludes that when as now there is a “current threat to public health and welfare when assessing whether a Board carries out its statutory mandate in a purely arbitrary and capricious manner”, the Medical Board is properly carrying out its broader policy mandate of stopping pill mills during this great opioid epidemic.  Such is sufficient factual and legal reasoning to discipline even an in-active medical licensee.

 The Commonwealth Court limited its inquiry into the “wisdom of the board,” not reviewing the administrative decision of the Medical Board with an eye towards substituting it’s judgment of what is reasonable for that of the agency whose decision is being reviewed. The court let stand the Pennsylvania Medical Board’s perceptions of the seriousness of the doctor’s Texas discipline, how such is also a violation of Pennsylvania’s medical licensing scheme, and the Board’s broad policy reasons for its discipline.
In sum, Commonwealth Court concludes that “the board did not abuse its discretion by taking strong action to protect the safety and welfare of citizens by suspending Dr. Mosuro’s license instead of imposing conditions on his license similar to those of the Texas Board.” Dr. Mosuro’s violation is very serious. In determining that the Board did not abuse its discretion, the Court states “even if we disagreed with the severity of the sanction and thought the Texas Board’s decision was more appropriate, the sanction must be upheld because proper review is not whether it’s order is reasonable, but whether it was made in accordance with law.”  Facilitating and conspiring to engage in operation of a “pill mill”, the Court and the Medical Board conclude, is not in accordance with law and, therefore, the suspension of the medical license is within the confines of the Board’s regulatory authority.

Call me to discuss your out of state disciplinary action and Pennsylvania’s pending disciplinary action.

JNET, Criminal Charges, and What to Do Next

The summer is over. All the fun in the sun in done. Now, back to work. But for professional licensees who had some criminal justice interactions over the summer that have been put off, ignored, or quietly resolved, these issues need attention again. This is because by now, or soon to your mailbox, you will receive notice from your professional licensing board of their knowledge of your criminal charges.

Fifteen months ago, when the Nursing Board changed its regulations to require 30-day reporting of criminal charges (not conviction), the Board needed to begin the process of making sure its licensees were timely reporting criminal charges. While the Nursing Board may have already been a subscriber to JNET, it stepped up surveillance of every licensee. What does this mean?

The Nursing Board, and every other Board, became a daily recipients of JNET computer searches results of its licensees’ criminal interactions. JNET is now an integral part of every licensing Board’s investigatory process. The Boards are subscribers to JNET to receive daily notice of any positive hit of licensee’s criminal charges through a computer algorithm search of its queried database.  AND BELIEVE ME, THE BOARDS ARE GETTING NOTICES EVERY DAY.  IN TURN, THIS MEANS THAT THE BOARDS ARE ASSIGNING THE NEW CASES TO THE PHMP, VRP, AND/OR PROSECUTORS, TO INVESTIGATE AND IF NECESSARY, FILE ORDERS TO SHOW CAUSE, PETITIONS FOR MENTAL AND PHYSICAL EVALUATIONS, OR FILE DISCIPLINARY CHARGES.

What is JNET – From the JNET WEBSITE it reads

JNET is the Pennsylvania Justice Network. The Pennsylvania Justice Network (JNET) is an integrated, secure justice portal providing an online environment for authorized users and systems to access public safety and criminal justice information. JNET is the Commonwealth’s primary public safety integration service provider. JNET is a result of a collaborative effort of municipal, county, state, bordering states and federal justice agencies to build a secure integrated justice system. While each agency maintains ownership and control of their data, JNET allows authorized criminal justice and public safety professionals to securely and safely access information from multiple providers through one interface.

The Pennsylvania Justice Network (JNET) is the Commonwealth’s primary public safety and criminal justice information broker. JNET’s integrated justice portal provides a common online environment for authorized users to access public safety and criminal justice information. This critical information comes from various contributing municipal, county, state, and federal agencies. One-time data entry has improved the effectiveness of participating agencies, and has significantly improved data accuracy throughout the Commonwealth’s criminal justice system. Information entered into a records management system at the onset of an investigation can now follow the offender throughout their criminal justice tract. As offenders pass through the gateway of justice all the way to post-sentencing supervision, offender information flows in concert with the offender’s progression.

JNET allows users to subscribe to real-time event messages for comparison against offender watch-lists. When an event message is published, it is compared against watch-list records and the subscriber is automatically notified via email. When a significant event such as an arrest, disposition, want, warrant, state parole violation, PennDOT change of address or death occurs, users are alerted to check secure JNET for detailed event information.

The licensing boards know of any criminal charge, public drunkenness, disorderly conduct , DUI, drug charges, and more withing 24-48 hours of fingerprinting and processing in ANY STATE IN THE COUNTRY. Reporting your criminal interaction timely and completely is important. Failing to report is a separate disciplinary event from the criminal offense.

Responding to “Letters of Concern”, VRP enrollment letter, understanding what VRP, PNAP, PHMP case workers can and will do once you begin talking with them is pivotal to saving your license. Read my web site and other blogs. Attorneys handling criminal cases do not understand this professional licensing scheme, the evaluation consequences, and the prosecution attorney’s role is to protect the public .

Call me to discuss the letter in your hand, the petition sitting on your desk, or ask the questions you have after speaking to a VRP case worker who just told you to have your boss call them so you can keep working!!!!

Felony Convictions — Pennsylvania Drug Act Cases — Professional License Revocation, Suspension, and Reinstatementts

A series of recent cases have just been decided that address automatic suspensions and revocations of health care professional’s licenses (and thus the time period after which reinstatement is possible). These are very important decisions effecting every professional confronted with criminal charges, to what charges they should not plead guilty, and the collateral consequences of a felony conviction.

The first case was decided in 2014. That case is Packer v. Bureau of Professional and Occupational Affairs, Department of State, State Board of Nursing, 99 A.3d 965 (Pa. Cmwlth. 2014), petition for allowance of appeal denied, 109 A.3d 680 (Pa. 2015). The second case is McGrath v. Bureau of Prof’l & Occupational Affairs, 2016 Pa. Commw. LEXIS 367 (Commw. Ct. Aug. 24, 2016). McGrath reverses Packer, discussing more in depth the 1985 law that amended the Nursing Act to provide for automatic license suspensions and 10 year reinstatement periods based upon felony Drug Act convictions. The drug Act is found 35 P.S. § 780-113(a)(1-32).

Only felony criminal charges under the Drug Act, 35 P.S. 780-113(a)(1-32), trigger these cases. If a professional is convicted of a felony under the Drug Act, Section 14 of the Nursing Act (the “Act”) becomes effective, thereby allowing the Board to institute an automatic license suspension and/or revocations.  Section 14 of the Act states the Board has the discretion to refuse, suspend, or revoke any license if the Nurse is, among other things, convicted of a Drug Act violation. Section 15 of the Law addresses the procedures for suspensions, revocations, and reinstatement of licenses following a hearing before the Board:

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. All actions of the Board shall be taken subject to the right of notice, hearing and adjudication, and the right of appeal therefrom . . . . 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. (Emphasis added.)

Section 15.1(b) of the Law, however, which was added in 1985, mandates that the Board automatically suspend licenses under certain circumstances prior to a hearing. Of relevance to the circumstance now before the Court, Section 15.1(b) of the Law provides, in part:

(b) A license issued under this act shall automatically be suspended upon the legal commitment to an institution because of mental incompetency from any cause . . . , conviction of a felony under the [Drug Act,] or conviction of an offense under the laws of another jurisdiction, which, if committed in Pennsylvania, would be a felony under [the Drug Act]. . . . Automatic suspension under this subsection shall not be stayed pending any appeal of a conviction. Restoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license.(Emphasis added.)

Section 15.2 of the Law, which follows immediately after Section 15.1(b), provides:

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.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. All actions of the Board shall be taken subject to the right of notice, hearing and adjudication, and the right of appeal therefrom . . . . 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.

These cases typically involve nurses convicted of drug offenses or prescription fraud matter.  While in jail or out of a job, the Board prosecutors (through either annual renewal, self-reporting, or automatic fingerprint notification upon arrest) learn of the drug charges and file a Rule to Show Cause with the Board seeking an automatic suspension without prior notice to the licensee. I typically see the Motion and the Order of Suspension that allows the licensee to respond to the Petition after the Board issues the automatic suspension and issues with Order with a right to a hearing on limited basis.

The final Order of Suspension language is the issue in these cases.  The suspension order states the licensee is ineligible for reinstatement for a 10 year time period. The Packer and McGrath claim that because there are no administrative regulations addressing implementation of the new automatic suspension law that the Board did not have the authority to institute in effective a mandatory 10 year license suspension. More importantly, the nurses objected to the Board action instituting a 10 year mandatory suspension versus consent agreements that offered a reduced reinstatement time period to 3 years. After reviewing much of the arguments, the court in Packer, which affirmed that new interpretation stating:

The Law is structured in a manner that affords the Board discretion (through decision making or regulation) to suspend or revoke a license under certain circumstances (Section 14 of the Law) and removes discretion from the Board in other circumstances by mandating that the Board suspend a license if certain circumstances exist (Section 15.1(b) of the Law). It would appear that the General Assembly, in mandating license suspensions under Section 15.1(b) for certain drug convictions and legal commitments based on mental incompetency, viewed those circumstances to be sufficiently serious such that it removed from the Board its discretion not to suspend or revoke a license. In other words, the General Assembly viewed those circumstances to be so serious that suspension is mandatory and automatic. Given that the General Assembly took measures to remove discretion from the Board by legislating automatic suspension, it would seem unlikely that the General Assembly would then allow the Board to exercise discretion and lift an automatic suspension at any time. Rather, it is much more likely that the General Assembly contemplated that an automatic suspension would remain in effect for at least some minimal period of time, which is consistent with the Board’s interpretation of the Law.

However, in McGrath the entire Commonwealth Court reviews Packer and the legislative process, overruling Packer, stating:

Because we conclude that Packer’s punitive interpretation of the ambiguous statutory provisions of the Nursing Law violates the principle that ambiguities in penal statutes must be strictly construed against the government, Section 1928(b)(1) of the Statutory Construction Act of 1972 (Statutory Construction Act), 1 Pa. C.S. § 1928(b)(1); Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596, 600 (Pa. Cmwlth. 2011) (en banc) (discussing the common law rule of lenity), we overrule Packer. Therefore, we reverse the Board’s Order to the extent that it mandates a 10-year suspension of Ms. McGrath’s license and requires, based on Packer, Ms. McGrath to reapply for a new license under Section 6(c)(1) of the Nursing Law, rather than request reissuance of her suspended license pursuant to Section 15 of the Nursing Law, 63 P.S. §§ 216(c)(1), 225.

This effectively eliminates 7 years of an automatic suspension that became a revocation requiring 10 years prior to becoming eligible for reinstatement of a nursing license. This is huge.  Importantly, the court sets forth a statutory history of the Board’s apparent interpretation and use of its automatic license suspicion process as

Previously, the Board interpreted this statutory language as permitting it to consider each automatic license suspension on a case-by-case basis to determine the length of the suspension and to approve consent decrees setting forth the term of the suspension. Packer, 99 A.3d at 967, 970. The Board’s interpretation relied on Section 15, which gives the Board discretion in imposing and reviewing license suspensions under the Nursing Law. 63 P.S. § 225. However, in 2013, the Board changed its interpretation of these provisions without, as observed in Packer, engaging in either formal interpretation, i.e., promulgating regulations, or informal interpretation, i.e., issuing policy guidelines, regarding its new interpretation. Packer, 99 A.3d at 969-71. Rather, the Board “altered its application of the [Nursing] Law based upon a directive from its parent agency, the Department of State [(Department)], Bureau of Professional and Occupational Affairs [(Bureau)].” Id. at 970. According to the Board, “the [Bureau] made the determination that the language in all the acts with automatic suspension provisions authorized the boards to impose a year automatic suspension and that all healthcare providers should be treated equally.” Id. at 970 n.10 (internal quotation omitted). Thus, “until . . . the Bureau or the Department issued an unidentified directive in 2013 to all health profession boards” indicating that “the Board (and apparently prosecutors in the Bureau)” had to apply Sections 15.1 and 15.2 in a non-discretionary manner, the Board and the Bureau’s prosecutors interpreted the statutory language as authorizing the exercise of discretion in determining the length of a suspension issued pursuant to Section 15.1(b). Packer, 99 A.3d at 970.

After discussing the legal and legislative process the McGrath Court makes the following remarkable statement,

The impact of Packer on the individuals affected is to preclude them from engaging in their profession for 10 years before the Board has the authority to even review their requests to reissue their suspended licenses. It prevents the Board from exercising its discretion, as it does in all other suspensions, to determine whether the Commonwealth’s citizens will be harmed by the reinstatement of a particular nurse. Such a result prevents individuals from earning their livelihood during that time period, which is particularly important because, based on the ambiguousness of Section 15.1(b) and 15.2 of the Nursing Law, licensed individuals have no guidance regarding what actions result in what punishment under the Nursing Law. We believe that our continuing reliance on Packer, therefore, creates [35] a “great injustice or injury” to those individuals.

This is the first time I have read a court case worried about a convicted felon professional’s ability to secure employment. This Commonwealth Court decision is finally taking a step to curtailing the conservative legislature from stopping hard working professionals who secured a license from every practicing their profession again. The court does not state suspension or revocation of the license is improper. It does state, however, that these individuals should be allowed to try to get their licenses back sooner, through hard work, and become working members of society again.  The Board has the discretion and the legislature can not take that away from them.

This is a momentous decision pushing back the General Assembly from issuing mandates to Pennsylvania’s  licensing boards. The legislature has previously given the Boards extensive discretion in deciding cases. The courts have routinely enforced this discretionary authority. The en banc Commonwealth Court is now telling the legislature these mandatory pronouncements are unnecessary and constitute legislative overreach. As well, the Court is telling the legislature in these hard economic times, let the professionals go back to work.

The import of these cases can not be understated. First and foremost, have proper counsel in any criminal matter involving the Drug Act violation so that your professional license is able to be reinstated at the appropriate time. Thereafter, make sure you properly respond to all license disciplinary action petitions. The Boards attempt to unilaterally interpret its governing law and regulations is many times wrong. Appellate review is proper. Courts really do objectively look at the evidence below and the legal actions taken by the Board. These cases involved convicted felons who were professionals and they still won their case. Call me to discuss these important cases and their affect on you license.

Network Investigative Techniques, Federal Criminal Search Tools, and Your 4Th Amendment Rights

My involvement for twenty five years in federal criminal matters has resulted in me handing many different Motions to Suppress. Recently, in the context of Federal internet criminal investigations, I have gained extensive experience fighting the new federal investigative techniques, (“NIT”) that reveal personal identity and location data.

Once such case involves the Government’s use of an NIT or Network Investigative Technique. The NIT is a malware program placed on a computer server that launches itself into each computer accessing that server to engage in alleged criminal activity.  The accessing computers utilize the TOR network for anonymity purposes.  Upon accessing specific areas of the server, the malware on the server then sends to the activating computer (in another state typically inside a person’s home) a code instruction to search, secure, and transmit back to the server the user’s IP address. Thereafter, search warrants secure the personal identification and location information of the accessing computer owner.

I have filed motions to suppress this search technique.  The Government bears the burden of showing, under the Fourth Amendment, the reasonableness of each individual act constituting a search or seizure. The burden of proof is by a preponderance of the evidence. The court is presented with the choice of two tracks of analysis. Does the court choose to evaluate these defendants’ constitutional rights affected by the NIT Warrant under the:
1) Reasonable expectation of privacy test set forth in United States v. Katz, 389 U.S. 347 (1967); or
2) The property-based Fourth Amendment test set forth in United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012). There, the court exclusively applied the property-based approach to determine whether a search occurs when the Government physically occupies private property of another for the purposes obtaining information. This approach keeps easy cases easy.

  1. PROPERTY-BASED FOURTH AMENDMENT PROTECTIONS

The court must choose the property-based search analysis set forth in JonesJones holds that surveillance on a person through electronic means without a warrant constitutes a trespass and may be an unconstitutional invasion of privacy. 132 S.Ct. at 953–54. Even though Jones involved warrantless global positioning system (“GPS”) searching, the analysis applies because the NIT warrant is illegal. Jones makes clear the constitutional nature of computer searches, especially in the privacy of one’s home.

Florida v. Jardines, 569 U.S. 1 (2013), follows Jones’ property – based Fourth Amendment jurisprudence.  The Jardines court held that a warrantless dog sniffing through the front door of Jardines’ home constitutes an unconstitutional search of a constitutionally protected area.  In Jardines, as here, “the officers learn what they learned only by physically intruding on Jardines’ property to gather evidence.”  This search activity is enough to establish that a search occurred. These cases stand for the proposition that the “Fourth Amendment, at its very core, stands for the right of a man to retreat into his home and there be free from unreasonable Government intrusion.” Jardines, supra.

There is no evaluation or discussion of an expectation of privacy under the property-based Fourth Amendment jurisprudence after JonesJardines, 569 U.S. at *9.  The court recognizes a simplistic procedure.  If the Government goes on the property of another, (trespassing or not) it needs a warrant due to Fourth Amendment’s constitutional property rights. These NIT cases, the Government understood this legal necessity and secured the NIT warrant. However, the NIT warrant was illegal.

  1. The Constitutional Character of the NIT Search is Per Se Prejudicial

In today’s society, disclosing an Internet Protocol (“IP”) address is, in essence, disclosing protected location privacy. Similar to Jones‘ GPS coordinates in tracking devices or cellular telephones, location data reveals a great deal about a person.  As such, cases discussing governmental activity and search techniques that reveal a defendant/target’s location are relevant to the court’s analysis of prejudice and the constitutional level of protections in these motions to suppress.

United States v. Maynard, 615 F.3d 544, 562 (D. C. Cir. 2010), affirmed, United States v. Jones, supra, stands for this proposition. Analogizing IP address location data to cellular telephones, Justice Alito writes that “society’s expectations have been that police agency and others will not secretly monitor and catalog every single movement of an individual’s car for a very long period of time.” Jones at 945.

Thereafter, in Riley v. California, ___ U.S. ___, 134 S. Ct. 2473 (2014), the Supreme Court following Jones, specifically references location privacy as a reason to limit police searches of cellular telephones incident to arrest.  The Riley Court determines that due to the wealth of information electronic devices “contain and all they may reveal, they hold for many Americans the privacies of life.” Riley at 2494–95.

Riley even states, “The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search “is acceptable solely because a person is in custody.” Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 26). To the contrary, when “privacy-related concerns are weighty enough” a “search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” Ibid. One such example, of course, is Chimel. Chimel refused to “characteriz[e] the invasion of privacy that results from a top-to-bottom search of a man’s house as ‘minor.’” 395 U. S., at 766–767, n. 12. Because a search of the arrestee’s entire house was a substantial invasion beyond the arrest itself, the Court concluded that a warrant was required.” Riley, supra.  Cellular telephones and home computers are simultaneously offices and personal diaries containing the most intimate details of our lives. United States v. Cotterman, 709 F. 3d. 952, 964 (9th Cir.. 2013).  Several circuits recognize these facts, uniformly requiring a warrant prior to searching a computer. United States v. Paton, 573F.3-D 859 (9th Cir. 2009); United States v. Andrus, 483 F.3d 711, 718 (10th Cir. 2007).

The Eastern District of Pennsylvania addresses surveillance issues of GPS warrants in United States v. Ortiz, 878 F. Supp. 2d. 515 (E.D.Pa. 2012). In the Court’s discussion of location data and the privacy issues, it concludes that the Government’s warrantless surveillance technique “produces location data while inside the garage of a home or other Fourth Amendment protected place”, potentially yielding information that the Supreme Court specifically found in United States v. Karo, 468 U.S. 705 (1984), is protected by the Fourth Amendment.

An unreasonable search within the meaning of the Fourth Amendment occurs where, without a warrant, the Government surreptitiously employs an electronic device to obtain information it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually    located at a specific time in the private residence and is in the possession of the person or persons whose residence is being watched.  Even if visual surveillance has revealed that the article to which the beeper is attached  has entered the house, the later monitoring not only verifies the officers about observations but also establishes that the article remains on the premises. United States v. Karo 468 US at 715.

Ortiz at ___.

Review of these controlling Supreme Court cases and their emphasis on the data produced through cutting edge surveillance techniques (including an NIT) on electronic mediums (cellular telephones and home computers) render’s applicable the Fourth Amendment privacy protections afforded to Jones, Jardines, and Riley.

  1. Expectation of Privacy in an IP address

An expectation of privacy in location data that IP addresses reveal is both objectively and subjectively reasonable based upon people using the TOR network and how the Government secures those person’s IP address.  The Government typically argues that because these defendants may have initially disseminated their IP address through an internet service provider (“ISP”), they have no expectation of privacy in an IP address.  This is factually wrong.

  1. Third Party Doctrine

The case of Smith v. Maryland, 442 U.S. 735 (1979), addresses warrantless access to information possessed by a third-party. This is the third-party doctrine set forth in United States v. Jones, 132 S. Ct. at 957.  Third party dissemination and reduced expectation of privacy has no applicability here because of the NIT’s mechanism of search and how Government secures that defendant’s IP address from his computer, not a third-party ISP. The court requires factual testimony on this issue.

United States v. Stanley, 753 F.3d 114 (3d. Cir. 2014), specifically addresses the no expectation of privacy of IP addresses when a defendant uses his neighbor’s wireless router without permission. The Government found Stanley’s computer’s wireless signal piggy backing illegally on his neighbor’s unsecured wireless router. Such unauthorized use of the neighbor’s IP address through which a third-party provider secures individual media access control (“MAC”) addresses of moochers of other people’s wireless routers. The Court found this fact alone reveals that Stanley had no expectation of privacy in his IP or MAC address. Stanley‘s finding that there is not an expectation of privacy in an IP address is not binding here as such is not the basis of the Government’s investigation in this case.

These defendants’ IP addresses are not disclosed anywhere throughout the use of the TOR or his third party ISP.  Declaration, Special Agent Daniel Alfin, document no. 74-1, filed June 1, 2016, U.S. v. Matish, 4:16-cr-00016, attached hereto at Exhibit 3.  This declaration makes clear that the NIT did not secure any other defendant’s, IP address from a third-party ISP or through the TOR network. Rather, the NIT searched for and secured the accessor’s IP address SOLELY from their own computer programming.

The NIT transferred directly to the Government from that defendant’s computer, his IP address not through the ISP.  The Government must acknowledge this fact in response to court’s inquiry of how the NIT worked in Matish. The Government bluntly concedes that but for the IP address, it could not locate these defendants.  These IP address would have been unknown.  The accessing defendants’ personal location data is collected from the accessing computer. See Exhibit 3, Alfins’ declaration, ¶¶ 22 and 25; Exhibit 2, Alfin’s May 19, 2016 Testimony, page 13-17, 21–26.  Alfin makes clear this factual point.

Once put to the test in a Motion to Compel Discovery, Alfin’s testimony is in stark contrast to the NIT Affiant Special Agent Douglas Macfarlane’s affidavit stating that the NIT instructions “are designed to cause the user’s ‘activating’ computer to transmit certain information to a computer controlled by or known to the government,” including the “activating” computer’s actual IP address. See Affidavit in Support of Application for Search Warrant, at ¶ 33.   The NIT would deploy “each time that any user or administrator log[ged] into Playpen by entering a username and password.” (Id., Ex. 1 ¶ 36.) The FBI could then link a username and its corresponding activity on the site with an IP address. (Id., Ex. 1 ¶ 37.)  This is factually wrong when compared to Alfin’s declaration and testimony regarding how the NIT worked its search functions performed when an accessing computer logged onto the Playpen Website.

The Government was less than candid with the tribunal by not advising it that the NIT would send a computer search and seizure program to the user’s home computer and then send back to the FBI computer an IP address.  The FBI was not linking a username and corresponding activity to an IP address. Further, the record is unclear if the Government told  the Magistrate that it was concurrently filing a Title III warrant.  This would have disclosed both its strategic use of a magistrate to issue the NIT Warrant and its seizure gathering mechanism of electronic information for which it required Article III judicial authorization.

The NIT that accessed these defendants’ computers operates in the computer memory locations, retrieved information, and then leaves the computer. The same situation is presented when the Government comes into your house, searches your house, and then leaves. The Government is required to advise you of the search (giving you the search warrant) and then leaves you an inventory of items seized. None of that was done in this occasion.  Jones, Riley, Jardines affirm this constitutional requirement to which Rule 41(B) codifies into a procedure implementing the Fourth Amendment’s warrant provision.

As such, the question is not whether there’s a reasonable expectation of privacy in an Internet IP address (as Werdene concluded there was not), but does a person have a reasonable expectation of privacy in the area where the search (his home) occurred and in the information seized (his location).   Rakas v. Illinois, 439 U.S. 128 (1978). Darby and Matish conclude yes.  This court must choose the property-based Fourth Amendment analysis and afford these deendants the constitutional protections because the NIT searches a home-based computer.

Call me to discuss your NIT, Playpen based federal government internet criminal matter.

Major US Supreme Court DUI Decision and Pennsylvania Licensees

On June 23 the United States Supreme Court decided  BIRCHFIELD v. NORTH DAKOTA, three consolidated cases addressing important substantive and procedural legal issues regarding driving under the influence (“DUI”) cases.  In each case, the North Dakota motorist, lawfully arrested or under investigation for drunk driving, was convicted of a separate crime or otherwise received an enhanced criminal penalty for refusing to submit to a warrantless blood test measuring the alcohol in their bloodstream.

All three state court cases results depended upon the proposition that criminal laws ordi­narily may not compel a motorist to give evidence against themselves in the form a blood sample or breath test unless a warrant authorizing such testing is issued by a magistrate.  The specific issue considered was how the search-incident-to-arrest doctrine applies to breath and blood tests incident to DUI arrests. The court ruled while compelled evidence from breath tests are constitutional based upon the limited inconvenience and invasion of privacy to the motorist, compelled blood tests are unconstitutional for those same reasons.

In Pennsylvania, 75 Pa C.S.A. § 1547 of the motor vehicle laws addresses motorists’ civil license suspension consequences for refusing to submit to a DUI investigation breath or blood test. Depending on how many refusals the operator of the car has previously engaged, a driver’s license suspension based upon a breath or blood test refusal starts at one year and may escalate. The court ruled that these civil collateral consequence license suspension for refusing the test remains constitutional. “Our prior opinions have referred approvingly to the gen­eral concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.”The Birchfield case did not question the constitutionality of those civil collateral consequence refusal laws, and the Supreme Court limited its ruling stating that “nothing should be read to cast doubt on them.”

In 2015 the Supreme Court ruled that the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the warrantless taking of a blood sample. That was the holding of Missouri v. McNeely, 569 U. S. ___, where the State of Mis­souri was seeking a per se rule that “whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circum­stances will necessarily exist because BAC evidence is inherently evanescent.”  This case set the stage for Birchfield, where the individual defendant’s objected to being criminally penalized for not submitting to the warrantless blood draw or were criminally penalized when the warrantless blood draw produced evidence that was used against them in trial.

Pennsylvania’s DUI statute, 75 Pa.C.S.A.§3802D, provides for enhanced criminal penalties for refusing to submit to a breath or blood test stemming from a DUI investigation. DUI offenders with multiple prior DUI convictions faced enhanced license suspensions and jail sentences based upon the same refusal. In Birchfield, after reviewing all of the prior case law regarding car stops, privacy concerns, and search incident to arrest case law, the court held that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.  Motorists can not be compelled criminally to give evidence against themselves without a warrant signed by an independent magistrate.
The court has finally drawn a constitutional line in the sand limiting the extent to which a state may utilize driving-on-our-roads informed consent laws to compel motorists to give evidence against themselves so the state may investigate and prosecute them for criminal conduct. In Pennsylvania, this will mean enhanced criminal penalties associated with refusing a blood test, not breathalyzer, in any criminal DUI prosecution may no longer be constitutionally permissible.  Please call to discuss your DUI charge, your medical or professional license issue and potential discipline on your license from stemming from your first or subsequent DUI.

Pennsylvania Criminal Expungement and the Pennsylvania Licensee

Expungements are major issue with every professional licensee.  Many licensees are involved in some type of criminal conduct that result in enrollment into Pennsylvania’s pretrial probation – Accelerated Rehabilitative Disposition –  program (ARD).  Some cases also involve Drug Court or Section 17 dismissals under Pennsylvania’s Drug Act. I field many telephone and Internet inquiries regarding criminal convictions and ARD results that require reporting to Pennsylvania licensing boards.  Reporting is either within 30 days of arrest (Nursing Board), 30 days of conviction, or enrollment in the ARD or Drug Court programs.

An issue has arisen regarding expunging dismissed criminal records from one’s Pennsylvania administrative licensing board record.  Typically, licensees who win their criminal cases seek to have those criminal records expunged at the earliest possible date. The expungement process is found under 18 Pa. C.S. § 9122. This Chapter is known as the Criminal History Record Information Act (“CHIRA”). This provision is part of the same statutory chapter, 18 Pa. C.S. § 9161(3), that renders admissible criminal convictions in administrative licensing proceedings. As such, the necessity of expunging criminal arrests that result in not guilty, dismissals or ARD is of key value to every Pennsylvania licensee. But for the criminal charges, there is no administrative disciplinary basis under CHIRA to commence a disciplinary process.
The problem, however, unlike other states, for example Ohio, is that Pennsylvania expungement rules do not specifically provide for an expungement of a criminal arrest record subsequently dismissed that became the basis for an administrative licensing disciplinary proceeding. Pennsylvania’s expungement process allows only for specific administrative licensing expungements in drivers license matters. This is in contrast to Ohio law at section Ohio revised code 2953. 32 and 2953. 52.  This conclusion is drawn because one provision of Pennsylvania’s expungement law, § 9122(a)(3), specifically states “the court shall order the expungement of all criminal history record information and all administrative records of the Department of Transportation.” Leaving absent all other administrative licensing boards allows these Boards to not expunge their Board proceedings that rely upon criminal charges that were eventually dismissed or expunged.
This is a complex reporting issue for Pennsylvania’s nurses.  In October 2015 Pennsylvania Nursing Board regulations changed, requiring reporting of criminal arrests within 30 days of the arrest.  Other licensees who receives ARD or other pretrial probationary dismissal of offenses under the Drug Act only have to report upon the conclusion of the offense.   I am now finding that nursing license prosecutions are commencing soon after the initial reporting of the criminal arrest and not upon its conclusion.  This creates important 5th Amendment self-incrimination questions for the licensee trying to maintain their profession and their license in the midst of a criminal case.

Other cases affected by this expungement rule include enrollees of Pennsylvania Drug Act, Section 17 drug use dismissal cases, and county Drug Court programs for felony drug sale or possessory offenses. Typically, satisfactorily completing these county-based criminal court diversion programs result in dismissal of criminal charges. Thereafter, the licensee is eligible for the expungement in criminal court of those dismissed criminal allegations. Nonetheless, the licensee will have already reported on their annual renewal or initial licensure application their involvement in these criminal cases. Reporting of Drug Act or pretrial ARD or Drug Court involvement automatically results in licensure disciplinary action even though the charges are eventually dismissed and expunged.

Pennsylvania’s expungement rules do not waiver on this issue.  As well, CHIRA and the Drug Act specifically provides for automatic Licensing Board disciplinary action of any licensee enrollment in any Drug Act pre-trial probation program that eventually results in dismissal and expungement eligibility.  It is the old fashion Blue Law, religious based abstinence theory of the Pennsylvania laws that have not progressed with the rest of the country.  Kicking people out of their jobs and taking their licenses, rather than treatment and keeping them productive members of society, like in OHIO, is how Pennsylvania currently functions.

The VRP and the “Letter of Concern” — They Are Not Concerned!

I have written about this issue many times.  I, though, continue my one attorney crusade against the PHMP improperly offering a drug and alcohol treatment-abstinence program to vulnerable licensees who neither suffer from drug or alcohol addiction nor are incapable of safely practicing their profession.  By this I mean offering any professional enrollment in the Voluntary Recovery Program “VRP” whether or not they suffer from an addiction or impairment.

The VRP does this by targeting professionals charged for the first time with a DUI or other minor alcohol or drug related summary offenses.  These professionals received the VRP “letter of concern” at a very vulnerable time.  Especially nurses who must report criminal charges with in thirty (30) days of arrest, not conviction. However, first time DUI offenders are typically eligible for Pennsylvania’s ARD pre-trial diversion program.   As such, there will be no conviction.  Professionals receiving the “letter of concern” while the DUI prosecution is just starting are terrified of losing their license. Many unilaterally, without consultation of licensing counsel like me, go to the VRP assessment and then sign a PHMP consent agreement thinking it saves their license while the prosecution is pending. It only makes the problems worse.
The 2006 case Wittorf v. State Board of Nursing, 913 A.2d 956 (Pa. Cmwlth. 2006) is on point. Wittorf voluntarily entered the VRP to save his license after a first time DUI offense.  (If he had competent counsel he would not have entered the VRP to start and his license would never have been affected.) Soon after, however, the rigors of the abstinence-based PNAP administered PHMP became clear.  Work and life affected Wittorf’s ability to comply with every condition of the program.  He sought to exit the program.  Wittorf claimed he did not suffer from a drug or alcohol addiction that rendered him an impaired nurse. Wittorf presented numerous witnesses at the hearing supporting his lack of addiction and any professional impairment. Wittorf lost his petition to exit the VRP and have his license returned to non-probationary status.
Wittorf forgot he signed the standard PHMP agreement/contract and Board Consent Agreement.  Each document contains admissions that the signatory is an alcoholic (or drug addict) and such impairs their ability to practice their professional safely. This is the only legal fact upon which the Court needed to rely in denying Wittorf’s motion.  By signing the agreements Wittorf (and every other licensee in the same position) stipulates to both their addiction and impairment when asking to voluntarily enter the VRP.  One must do so to be eligible for the VRP.  Its the worst thing to do.
Every VRP “letter of concern” includes the personal data information sheet and medical authorization releases. Do not sign any of these documents if you wish to retain your medical, nursing for other professional  license.  Do not go to the requested assessment as one is not legally required. If you are reading this blog or column, you should call me immediately.
If you are reading this blog after being charged with a DUI and compelled to go to a COAD (Council on Addictive Diseases) assessment, hire competent counsel to handle your licensing issue along with the DUI. This is because typically the mandatory ARD DUI COAD assessors are the local PHMP referred VRP assessors. Once that assessor learns that DUI ARD applicant sitting in front of them is also a professional licensee – especially nurses and doctors – the assessment turns into a VRP assessment that I advise my clients to avoid.  Being prepared for this assessment, similar to be prepared for the Mental and Physical Evaluations (see my other blogs int he archives), is just as important.
The only way I can fight against the unfair tactics of the VRP is by representing as many professionals as I can.  These are trained but incompetent unlicensed case workers implements are highly structured regulatory process.  They have no authority to deviate from any condition of the program.
The PHMP, PMP, VRP, PNAP case workers deal with these issues every day and have honed their trapping skills over the years.  I read the same case workers names on every VRP and PHMP “letters of concern”.  This is the first time you have read this letter.  You need experienced counsel who has honed his skills to battle these experienced case workers.  Call me.

Criminal Charges – Nursing Board Petitions for Mental and Physical Evaluations – Remaining Silent

Effective October 2015 Pennsylvania nurses became responsible for reporting to the State Board of Nursing any criminal arrest/charge (not just conviction). The practical impact of this new reporting regulation is now being felt.

Typically, criminal charges lodged against nurses relate to drug use or diversion and driving under the influence (DUI) of alcohol. These criminal charges, once reported, result in “Letters of Concern” from the Voluntary Recovery Program (VRP), PHMP demands for enrollment, and possible Board action.  Nurses who do not enroll in the VRP and PHMP (which they should not – see my other blogs), typically end up having filed against them a Petition for a Mental and Physical Evaluation. This is OK and not the problem, though, because now an expert will do the evaluation, not a PHMP social worker.  My many archived blogs address all aspects of the PHMP and why not to enroll.

The new wrinkle in the Petition for Mental and Physical Evaluation process, compelled via an Order to Show Cause (OSC),  is that many professionals will not have completed the criminal process involving the drug or DUI related offense. The criminal matter has yet to reach the County Common Pleas Court in which the charges originate. In some cases, the nurse has yet to be approved for ARD or even had their preliminary hearing. This is significant for the professional who is ineligible for ARD.

Professionals with prior criminal records (yes, you still can get a license or not loose one and incur a second offense) are ineligible for ARD. They must fight the DUI charge. In this context, every professional has a right to remain silent.  The Commonwealth must prove each element of each criminal offense without using the professional’s own words to secure a conviction. The professional has no obligation to make a statement in any criminal prosecution.  In Pennsylvania the professional does not have to help the prosecution prove any element of any offense lodged against them. This is the professional’s Fifth Amendment Constitutional right to remain silent.

The criminal offense reporting regulation ignores this constitutional protection.  Expedited OSC petitions compel professionals to talk. In the Mental and Physical Evaluation, the professional is extensively queried about the criminal conduct, historical criminal activity, and recreational non-prescribed drug use. These statements are not confidential.  The Petition for Mental and Physical is authorized by the Probable Cause Screening Committee and not the entire Professional Board. The expert who conducts the evaluation and authors a report to the Commonwealth eventually testifies in a formal disciplinary hearing.

Statements to the expert are now public, subject to discovery by the criminal court prosecutor.  Routine reciprocal discovery requests in criminal cases include whether the defendant has made any prior statement, admission, or testified under oath in another proceeding regarding the facts are allegations contained in the criminal matter. The expedited disciplinary process now raises the question in civil disciplinary prosecutions whether or not the professional, contesting disciplinary action, should speak and waive their constitutional right to remain silent in the criminal context.

Courts in Pennsylvania have addressed this issue in administrative driver’s license actions.  In Pennsylvania driver’s license suspension proceedings civil trial courts routinely continue the civil license suspension trial stemming from a DUI.  These twin civil/criminal prosecutions originate from the same DUI arrest investigations when the defendant refuses to submit to a breath or drugs or alcohol test.
Practically and legally, my legal advice in these representations includes advising the DUI defendant to continue the civil matter until the DUI case is closed. The nursing board, it’s infinite wisdom, either is unaware of this process or chose to ignore professionals’ Fifth Amendment right against self-incrimination.
All professionals should be aware of this conflict created by the Nursing Board in these expedited OSC petitions seeking Mental and Physical evaluations when a related DUI or other criminal matter is pending.  Please call me to discuss how to resolve this conflict and your professional license disciplinary matter.
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