Northampton County’s 1861 Court Room!!

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

Pennsylvania’s Accepts the Interstate Medical Licensure Compact Act

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

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

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

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

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

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

 

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

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

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

 

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

Pennsylvania’s New DUI Case Law

Since Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016), Pennsylvania’s DUI statute as applied to blood draws and refusals to submit to blood draws has because unenforceable.  The illegal escalation of criminal penalties for refusing to submit to a blood draw, or even being told of the enhanced penalties, has created an untenable situation for every police department in the Commonwealth.  They are still doing it wrong. Do not plead guilty.  Fight these cases.

Some departments are still reading the old refusal warnings.  Some are still taking people to the hospital when a simple breath test will work.  Some are making up new refusal warnings.  Some are trying to get people to freely consent to a blood draw without telling them of the consequences.  These, I think are all illegal procedures.  The cases are coming down every week limiting how the Commonwealth can gather evidence and what evidence can be used to prosecute the cases under the post-Birchfield paradigm.

It is the Commonwealth’s burden of proof to establish a DUI suspect’s consent to give blood is the product of essentially free and unconstrained choice—not the result of duress, coercion, expressed or applied. Commonwealth v. Gaetano, 2017 Pa. Super. Unpub. LEXIS 1241 (April 4, 2017); Commonwealth v. Evans, 153 A.3d 323, 2016 PA Super 293 (Pa. Super. filed December 20, 2016). The standard for measuring the scope of a person’s consent is based upon an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave such consent.

Gaetano and Evans  in applying Birchfield hold that the Commonwealth may not impose criminal penalties on the refusal to submit to a warrantless blood test.  Reading a person the now illegal O’Connell warning’s, or any other fabricated, constructed, newly designed version thereof, threat of enhanced criminal prosecution and incarceration vitiate consensual submission to a blood draw absent a warrant. Gaetano and Evans state it is the Commonwealth’s burden of proof to establish that a defendant’s consent is freely given and not the product of coercion.

It is not the a defendant’s burden of proof to establish or place in the record his subjective feelings of coercion. Commonwealth v. Fink, 2016 Pa. Super. Unpub. LEXIS 4704, *13 (Pa. Super. Ct. 2016).  The mere language of the O’Connell warning, or any other fabricated, constructed, newly designed version thereof, include a threat of enhanced criminal prosecution are coercive and the Commonwealth cannot establish coercive free consent.   Objective evidence of duress that is the basis for Gaetano and Evans will be present in almost every defendant’s arrest record, thus vitiating alleged voluntary consent to give blood draw.

Upon deciding a Motion to Suppress the blood evidence, trial courts cannot, and it is irrelevant to the constitutional evaluation under the Supreme Court precedent, put the burden on the defendant, as to what their objective state of mind was upon giving consent for a blood draw.

As for the specific refusal statute, 75 Pa.C.S.A. § 1547, Superior Court has concluded that it or police departments newly fabricated, constructed threat of enhanced criminal prosecution vitiates any consent given to a warrantless blood draw.  Gaetano and Evans maintain that subjecting defendants to warrantless blood draws based upon the illegal O’Connell warning consent provisions (or any other fabricated, constructed, newly designed but improper version thereof, threat of enhanced criminal prosecution) is illegal and unconstitutional under US Supreme Court and Pennsylvania appellate court jurisprudence.

In looking at the totality of the circumstances the court must determine that any consent is not voluntary and coerced. Birchfield’s review of the Supreme Court’s jurisprudence on blood testing compels a review of Missouri v. McNeely, 566 U.S ___ (2012),  where the Court refused to adopt a per se rule that “whenever an officer has probable cause to believe that an individual has been driving under the influence of alcohol, circumstances will necessary exist because blood alcohol content evidence is inheritably evanescent.”  Id. at ____, (slip op., at 8).

McNeely is applicable in Pennsylvania DUI cases because officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search.  The Fourth Amendment mandates that they do so.  They are no doing so.  The court has held that it is not enough to claim that “circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency.” This is to be decided in each case on its facts.  The Court did not create a general rule based upon “considerable over generalization” that a per se rule would reflect.

Pennsylvania has said the same thing.  “The Fourth Amendment to the [United States] Constitution and Article I, Section 8 of [the Pennsylvania] Constitution protects Pennsylvania’s citizens from unreasonable searches and seizures.” Commonwealth v. McAdoo, 2012 PA Super 118, 46 A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies.” Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 888 (Pa. 2000).  “Exceptions to the warrant requirement include the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception . . . , the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. Dunnavant, 2013 PA Super 38, 63 A.3d 1252, 1257 n.3 (Pa. Super. 2013).

As for blood, the “administration of a blood test . . . performed by an agent of, or at the direction of the government” constitutes a search under both the United States and Pennsylvania Constitutions. Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308, 315 (Pa. 1992); Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).  Since the DUI blood tests are typically performed without a warrant, the search is preemptively unreasonable “and therefore constitutionally impermissible, unless an established exception applies.”

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

I think the DUI case law requires that the police tell the arrestee of the consequences of a refusal to take the test so that he can make a knowing and conscious choice.  When requested to take a breathalyzer or blood test, the court insists that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test. An arrestee is entitled to this information so that his choice to take a breathalyzer test can be knowing and conscious and we believe that requiring the police to qualify the extent of the right to counsel is neither onerous nor will it unnecessarily delay the taking of the test.  Commonwealth v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989).

In many cases, the police claim a defendant allegedly consents to the warrantless blood draw during a custodial interrogation after the police inform him of some fabricated, constructed, newly designed informed consent language not court or legislatively approved. This is not proper.  Currently, the only available law requires the police to advise a defendant that: “if you refuse to submit to chemical test and you are convicted or plead to violating § 3802(a)(1) related to impaired driving under the vehicle code, because of your refusal, you will be subject to more severe penalties set forth in § 3804(c)[,] relating to penalties, the same as if you were — if you would be convicted at the highest rate of alcohol.”

This makes the verbal consent to a warrantless blood draw  during a non-mirandized, custodial interrogation in illegal statement subject to suppression.  Absent verbal consent, there is none.  Further, since Birchfield held that  a state may not “impose criminal penalties on the refusal to submit to [a warrantless blood] test,” the police officer’s advisory to any defendant on the non-legislatively permitted language illegal. Birchfield, 136 S.Ct. at 2186. This then requires a court to conclude that the search incident to arrest doctrine does not justify  warrantless blood testing compelled through enhanced criminal sentencing provisions for refusing to take that blood test.  This in turn means that the enhanced criminal offense, both in charges filed and potential sentencing scheme set forth in 75 Pa. C.S.A. § 3802(b)(1)(2), compels this County Courts of Common Pleas to hold that “motorists cannot be deemed to of consent to submit to a blood test on fate of committing a criminal offense.”

Call me to discuss you DUI and blood draw evidence.

Another Really Nice Client Review with my Response

Here is another really nice and very accurate client review and my response. I can write blogs about this stuff. But, client testimonial about how aggressive and direct my representation is becomes the best blog.

I received a “letter of concern” from Pa nursing board after a charge of public intoxication.I unwittingly responded to the Board before contacting Richard.What a mistake!!!!The Board is not your ally-quite the opposite.Their job is to destroy you both financially and mentally.
Fortunately,Richard was able to expertly win our court case.Unfortunately,unbeknownst to me,I had been suffering from Bipolar disorder all the while,and the relentless emotional stresses caused by the Board caused me to suffer deep depression and a resulting manic swing where I had 2 DUI’s in a span of less than 2 weeks. Richard was right there for me and had my charges lessened significantly.Despite that,the Board required that I participate in their onerous,soul and money sucking program.I chose to voluntarily suspend my RN license rather than go through with that.I would not be able to work in my specialty during the 3+ years in the program,be out of thousands of dollars,and may not be employable when all is said and done.32 years as a nurse is enough for my lifetime anyway.
Richard Hark is an expert in protecting licenses of health care professionals and will work tirelessly to win your case.He is also very understanding and helpful with your anxieties at such a stressful and unsure time.I recommend him 100%.

Richard Quinton Hark’s response: “Thank you. I am so happy to help. I aggressively support every client’s need to take their medication without VRP and PHMP interjection in you, the professional’s, course of medical care and treatment. The one size fits all, regulatory approach does not work for everyone. We live in the best time of medical care and lawful prescription medication management of many medical conditions. Do not be ashamed or scared of your medical care as it pertains to your license. Anxiety, depression, ADHD are commonly diagnosed medical conditions for which properly administered and dosed medication management is no one’s business but the patient. Do not tell your job, your manager, the D.O.N., or any police officer in a DUI investigation. Do not respond to any letter of concern or sign medical authorizations releasing your medical care and treatment history to a social worker. Call me. This client and the others who have reviewed me attest to my aggressive defense of you, your privacy, and your license. I couldn’t be happier for this client who trusted my professional experience to help them, and won!!!!!!!”

Pennsylvania’s DUI Statute and Warrantless Blood Draws — No Proof of Intoxication

Several months ago I wrote about the June 23, 2016, the United States Supreme Court decision in three companion cases — Birchfield v. N. Dakota, 136 S.Ct. 2160, 2173, 2185, 195 L. Ed. 2d 560 (2016).  Pennsylvania’s appellate courts have finally reviewed and decided a case addressing, in the context of a warrantless blood draw in a DUI, what is consent in Pennsylvania.

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

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

Birchfield  focuses on the legality of motorists lawfully arrested for drunk driving subject to enhanced criminal penalties for refusing to allow a warrantless blood draw to measure the level of alcohol in their blood stream. The Supreme Court rejects North Dakota’s asserted need to obtain blood alcohol readings absent a warrant in light of the fact that its motor vehicle code implied consent laws, similarly to Pennsylvania’s, provide for separate and enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.

Birchfield approves of implied consent laws such as 75 Pa.C.S.A. § 1547 that impose civil penalties and evidentiary consequences on motorists who refused to comply breath tests. However, Birchfield then rules it is unconstitutional for a state to insist upon an intrusive blood test and then to impose criminal penalties on those who refuse to submit to those same tests. “There must be a limit to the consequences to which motorists may have deemed to consent by virtue of a decision to drive on a public road.”

Birchfield makes clear the Pennsylvania’s Motor Vehicle Law, 75 Pa.C.S.A. §3802, et. seq., is unconstitutional because it provides for enhanced criminal penalties of those accused of operating a motor vehicle under the influence of drugs or alcohol when, during a search incident to a lawful arrest, the defendant who refuses to submit a warrantless blood draw pursuant to 75 Pa. C.S.A. §1547 and/or § 3802 is subject to enhanced criminal penalties.

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

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

Call me to discuss your DUI, the warrantless search of your blood, whether you consented or not, and the professional license issues as a result of the DUI.

Professional License Indefinite Suspensions for Missing the Mental and Physical Evaluation

Board authority to  compel a mental and physical examination(“MPE”)  is pursuant to 63 P. S. § 2205(D)(1).  The purpose of the evaluation is to determine whether, under 63 P. S. 224(a)(2) for nurses, a licensee is unable to practice their profession with reasonable skill and safety by reason of mental or physical illness or condition or psychological or physiological dependence on alcohol, hallucinogenic on narcotic or other drugs that impair judgment and coordination.  Similar impairment evaluation provisions are contained in each of the twenty six different Pennsylvania licensing schemes.

A formal board order compelling attendance always accompanies these Petitions.  The Board signs the order to compel both attendance and compliance with document production requirements.  Typically, these petitions are filed, licensees show up at the expert’s office for the examination compliant with the terms and conditions of the MPE order.  It is the unique case where a licensee does not show up and their license is summarily suspended.

License suspension is based upon the Pennsylvania Code provisions that states,  if a licensee fails to attend the MPE,  the allegations of impairment are deemed true.  The admissions of fact and law allow the Board to conclude impairment and formal suspension is ordered.   License reinstatement after this step requires attending a PHMP expert evaluation (at the licensee’s expense) and complying with all other aspects of the suspension order.
Why or how would a licensee not go to the Mental and Physical Evaluation?  Failure to maintain an up-to-date address with one’s Pennsylvania licensing board, resulting in missed notices is the first way. Secondly, thinking these appointments can be unilaterally changed or failing to properly communicate scheduling conflicts create huge problems.  Minor inconveniences though do not warrant not attending the procedure.  The last way is the simplest; a licensee simply does not attend the evaluation for fear of the result.
Case law discussing these provisions specifically requires proper Board notification of the MPE and suspension to the licensee’s address of record.  The address on record is the address to which the Board is required to provide notice of a disciplinary action in order to honor its constitutional due process obligations.  The Board only needs to provide proof of service via regular and certified mail.  It is licensees burden to attend or reschedule the evaluation.
Why do licensees have to go to these evaluations?  Section 224(a)(2) of the Nursing law, for example, is the standard provision in every regulatory board scheme.  Board prosecutors receive information suggesting an impairment.   In seeking licensure, licensees agree to be regulated by the State.  Licensees agree to honor the provisions of Pennsylvania code and case law interpreting the code.

The MPE is just such a provision in an over arching regulatory scheme the Commonwealth has erected to protect its citizens from errant and high licensees (realtors, doctors, pharmacists, nurses and the like).  My blogs deal with my role in preparing each licensee for the MPE. However, I cannot accept mail for each licensee. Once we are retained, I am able to re-scheduled the MPE with consent of either the doctor, Board counsel or prosecuting counsel.  This allows me time to assist the licensee organize their documents and prepare for this expert examination.  I cannot receive the mail.

The consequence on the licensee of not attending the evaluation is significant. While not immediate, eventual license suspension for failure to honor a Board order will occur. Reinstatement will only take place upon attendance of that MPE.  Additional requirements include providing a criminal background check, proof of compliance with all continuing education burdens, proof of no practice during the term of suspension, and payment of investigatory costs.
As well, included in the typical MPE order is the Board paying for the evaluation.  Once a licensee refuses or fails to attend the MPE, the MPE expert evaluation expense must be borne by the licensees.   Please call me to discuss your recent mail compelling you to attend a mental and physical examination.or suspending your license for missing one.

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.

Hearsay, The Pharmacy Board, and Due Process

A recent client sought reinstatement of her pharmacy license after a period of suspension for failing out of the SARPH, Pennsylvania pharmacists’ drug monitoring program. The Pharmacy Board rejected her petition. I represented the pharmacist only in her appeal to the Commonwealth Court.

Prior counsel cost her her license and Markowitz did not utilize an attorney during her petition for reinstatement process, including the hearing before the Pharmacy Board.  She represented herself very poorly at that hearing.  As a result, the Commonwealth Court affirmed the Pharmacy Board’s denial of reinstatement. Carol Markowitz should have won her appeal because at the Pharmacy Board hearing the Board accepted inadmissible expert report evidence that tainted the Board’s consideration of the case.  Markowitz v. Bureau of Prof’l & Occupational Affairs, State Bd. of Pharm., 2016 Pa. Commw. Unpub. LEXIS 594, at *16 (Commw. Ct. Aug. 25, 2016).

With every SARPH or PHMP approved monitoring program, following all terms and conditions of the case worker’s demands establishes compliance with a professional board order. Lack of compliance results in prosecutors filing motion to kick licensees out of the monitoring programs and retroactively suspend their license. Thereafter, before reinstatement should be sought and can be approved by the board, licensees must prove compliance with the terms and conditions of the monitoring program as mandated by the disciplinary order suspending the license.

In  Markowitz’ circumstance, she remained drug-free, did not work, and was otherwise compliant with all terms and conditions of the SARPH program. However, during the term of her suspension, she was not enrolled in the SARPH. No SARPH case worker appeared for her at her petition for reinstatement, did not approve of her medications, and did not perform the perfunctory supervised tests to confirm her  drug-free condition.

As part of the reinstatement process, Markowitz contacted SARPH, which sent her to a fitness to return to work evaluation by Drs. Heran and Garbely. These two doctors wrote a report, which the Board utilized against Markowtiz.  Neither appeared nor and testified at the reinstatement hearing.  The prosecutor moved Drs. Heran and Garbely‘s unqualified experts report into evidence.  The Board relied upon these two individuals’ hearsay report to find Markowitz was not eligible for reinstatement.
On appeal Markowitz complained about the Board’s due process violation in considering the expert reports for which Markowitz was unable to cross examine and question the author(s) of the report. Markowitz also complained about Drs. Heran and Garbely’s competence, prior histories of license suspensions, and their own drug addiction issues that ultimately lead to their becoming drug counselors and experts.

“Hearsay is defined as an out-of-court statement, either oral or written, offered in court for the purpose of proving the truth of the matter contained in the statement.” Bailey v. Unemployment Compensation Board of Review, 142 Pa. Commw. 294, 597 A.2d 241, 243 n. 3 (Pa. Cmwlth. 1991). “Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding[ ],” but “[h]earsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding[ ], [i]f it is corroborated by any competent evidence in the record….” Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). “[A] finding of fact based [s]olely on hearsay will not stand.” Id.

Surprisingly, the Court ruled “It is clear that the joint report is hearsay and not corroborated by other evidence of record. We agree with Markowitz that the report of Drs. Heran and Garbely should not have been considered by the Pharmacy Board.”  Markowitz v. Bureau of Prof’l & Occupational Affairs, State Bd. of Pharm., 2016 Pa. Commw. Unpub. LEXIS 594, at *16 (Commw. Ct. Aug. 25, 2016).

Please call me to discuss your contact with these two doctors, their handling of your licensing case, and any case in which they were involved.

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.

Non-Pennsylvania Disciplinary Process’ Affect on your Inactive Pennsylvania Professional License

On September 27, 2016 Commonwealth Court addressed a consistent issue regarding inactive professional licenses and licensees who fail to appear at hearings to defend these disciplinary process. The case is McLeish v. Bureau of Prof’l & Occupational Affairs, 2016 Pa. Commw. Unpub. LEXIS 687 (September 27, 2016).  Sometime prior to 2014 Fred McLeish was discipline by the New Jersey State Board of Pharmacy.  He voluntarily surrendered his license and enrolled in its pharmacist drug monitoring program. McLeish had been caught diverting IV Morphine, Fentanyl and Hydroxizine tablets for personal use.

McLeish’s New Jersey monitoring program enrollment and voluntary surrender of his NJ license triggered Pennsylvania’s Pharmacy Board to commence revocation proceedings consistent with 63 P.S. § 390-5(a)(10).  In a 2014 Order to Show Cause Pennsylvania moved against McLeish’s inactive Pennsylvania pharmacist license.

McLeish did have a history with the Pennsylvania Pharmacy Board. In 2003 his license was suspended for failing to comply with continuing education requirements and providing false documents. In 2006 his pharmacist license was reinstated, to then be placed on inactive status.  In December 2006 McLeish’s Pennsylvania pharmacist license was placed on three years probation when he enrolled in Pennsylvania’s drug monitoring program due to prior New Jersey Pharmacy Board monitoring agreement. In 2008 McLeish completed both PA and NJ’s monitoring programs, securing reinstatement of both New Jersey and Pennsylvania licenses. McLeish’s Pennsylvania pharmacist license remained inactive since 2008.

Many of my clients think that because they practice in another jurisdiction and their Pennsylvania professional license is inactive they are not subject to Pennsylvania disciplinary process or it’s not worth responding. This is wrong. Inactive status still allows licensees to seek reactivation of their licenses so they may recommence practicing their profession in Pennsylvania. Consequently, inactive status allows licensing boards to commence disciplinary process against that licensee.

Importantly, Pennsylvania disciplinary process on inactive licenses will result in a disciplinary decision reportable to the National Practitioner Data Bank. This in turn will result in a reportable decision to your current home state licensing board and employers conducting annual background searches.  My blog last week discussed Pennsylvania’s enrollment in the judicial net fingerprinting and crime reporting network (JNET).  Now criminal charges from other  jurisdictions are automatically noticed to your Pennsylvania licensing board. These charges will trigger disciplinary processes on an inactive Pennsylvania license.

McLeish originally responded to the 2014 Pennsylvania disciplinary action. He asked for a dismissal due to inactive status. This request was denied. McLeish did not appear at the disciplinary hearing. The record did not contain evidence supporting mitigation to impose a lesser sanction than license revocation.  The only evidence in the record was the New Jersey Pharmacy Board suspension of McLeish’ license based upon the factual drug diversion allegations contained in the petition.

McLeish did not have an attorney file an appeal for him. Upon review, the Commonwealth Court affirmed the Pharmacy Board’s public safety need to impose a harsh sanction predicated upon a reciprocal discipline involving the diversion of drugs by a member of the pharmacy profession. Maintaining the integrity of the profession and protecting public safety were deemed to be sufficient basis for revocation.

“In order to fulfill its duty as protectorate of the public and to the integrity of the profession it needs to send a clear message about the severity of [McLeish’s] violations – both to the citizens of the Commonwealth and to [McLeish] himself. Therefore, it is necessary to impose a more stringent sanction than the one recommended by the hearing examiner in her proposed report. Great trust is placed in pharmacists as healthcare providers. Pharmacists have the responsibility to ensure that prescription drugs are legally distributed. Drug diversion has led to numerous overdose deaths within this Commonwealth and throughout the country. [McLeish’s] actions in failing to conform to the prevailing standards of practice in New Jersey were not only a violation of this Act but they exhibit a complete lack of professionalism and responsibility to the public when dealing with powerful narcotics.”

Commonwealth Court affirms the Pharmacy Board’s public policy concerns in this age of prescription opiate addiction and overdose propensities. This case is another example of the courts being pushed by current events to stem the tide of opiate addiction and drug overdoses. Whether the drugs are legally secured by medically unnecessary prescriptions, pharmacists not engaging in their corresponding responsibility, or drugs on the street, the courts and the professional licensing boards are stepping up their enforcement protocols, disciplinary processes, and sanctions.  McLeish’s ongoing fight with his drug addiction and extensive steps he affirmatively took to fight his addiction did not matter.

Please call to discuss your pending non-Pennsylvania disciplinary process and it’s effect on your current inactive Pennsylvania license.

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