Your Medical Practice and DEA Investigations

A federal criminal target letter from a local United States Attorney notifies a potential defendant that they are the “target of” an FBI, DEA, or other governmental agency criminal investigation. Target letters say “you are the target” and place the recipient on notice to hire an attorney.

Recently, a medical practitioner brought me a new letter.  This letter notified him that his practice was now under federal criminal investigation. It was not a target letter, per se, but a letter asking him to meet.  I was amazed.

The letter stemmed from a 2017 DHS administrative subpoena for medical records for a small subset of that physician’s patient files. The DEA subpoenaed specific patient files based upon patient’s DEA records indicating they had received a substantial number of controlled substance prescriptions. The DEA learned this information through a computer search of this physician’s prescribing patterns, pharmacy dispensing patterns, and actual patient received controlled substance prescriptions.  The DEA then subpoenaed the medical records to see if the doctor had a medical basis to write the prescriptions the database revealed.  Doctors have become the targets of the opioid crisis.

After the physician produced his records the DEA submitted the medical records to their expert physician. This is when something unusual happened.  The US Attorney took the time to notify the physician the expert concluded the physician’s prescribing pattern, quantity, and frequency of controlled substance prescriptions served no legitimate medical purpose in the usual course of professional practice. His medical practice for that small set of patients was criminal in nature.

The US Attorney did not simply indict the doctor.  The government identified to the doctor the numerous deficiencies and violations of standards in the physician’s prescribing practice:

  1. The physician was prescribing high-dose opioids frequently with benzodiazepines;
  2. The medical records did not identify a medical condition justifying the prescribing;
  3. The physician failed to document changes in prescribing patterns between patients with changing medical conditions;
  4. The physician failed to document increase in benefit to the patient from the opioid treatment and failed to provide alternate treatments;
  5. The physician failed to stop prescribing Opioids after proof of failed drug screens:
  6. The physician failed to stop prescribing opioids when no drug screens were performed;
  7. The physician failed to stop prescribing opioids to patients with positive drug test for alcohol, other opiates and benzodiazepines;
  8. The physician prescribed controlled substances without performing any physical examination;
  9. The physician prescribed controlled substances without a patient treatment plan, or inadequate treatment plans;
  10. The physician prescribed controlled substances to patients with no confirmed diagnosis of a medical condition;
  11. Patient records were inadequate, missing, or unreadable or did not have current medication or diagnosis notated in the file;
  12. Many files did not possess updated Pennsylvania prescription drug monitoring program reports

Amazingly this United States Attorney told the physician his medical records reflected in extraordinary pattern of distributing controlled substances while failing to satisfy relevant standards under the Controlled Substances Act and the False Claims Act. The physician was put on notice that the Controlled Substances Act and it’s implementing regulations require prescriptions be issued for legitimate medical purposes by any individual practitioner acting in the usual course of his profession. 21 CFR 1306.04(A).

If a prescription is issued but fails to satisfy those standards to prescription, it is not valid under 21 USC § 842(a)(1), 21 USC § 829(a). These violations provide for a civil penalty under 21 USC § 842C1A of not more than $25,000 per prescription or no more than a total of $64,820 for all violations after November 2, 2015. The physician was also notified that if Medicare paid for any of the prescriptions under a federal healthcare program, the physician was subject to False Claims Act triple damages under 31 USC § 3729.

This doctor was invited him to come and talk to the United States attorney and the Department of Justice about this letter and the 12 files in question.  Most importantly:

  1. the doctor was not yet indicted;
  2. his entire office files were not seized;
  3. his personal and business assets were not subject to civil forfeiture claims
  4. his personal and business assets were not frozen
  5. he was not forced to surrender his DEA prescribing Authority as a bail condition over a holiday weekend;
  6. he was not emergently charged by the Pennsylvania Medical Board;
  7. and he not in jail.

My other clients have not been as fortunate to receive, while intimidating, such an explicit letter.  This doctor was invited to talk to the United States Attorney and the Department of Justice about this letter.  If you have received a letter similar to this please call me to discuss your options.

Recreational Marijuana is NOT Legal in Pennsylvania

“Over the past several years, nearly half of our Sister States and this Commonwealth have legalized medical marijuana. Some States have also repealed their prohibitions against recreational use; Pennsylvania has not.  A recent case emphasizes this point.

In this appeal, John Batista makes the novel argument that, because marijuana is now medically available in Pennsylvania, police officers may no longer rely upon its smell as a factor for developing probable cause. Like the trial court, we reject this theory. In certain instances, the smell of marijuana may still indicate that a crime is afoot, because the growth, distribution, possession, and use of marijuana without a state-issued permit remains illegal. Thus, the magistrate had a substantial basis to issue a search warrant for Batista’s garage, and we affirm the order denying suppression.”

Commonwealth v. Batista, No. 1130 EDA 2018 (PA. Super. September 27, 2019).

http://www.pacourts.us/assets/opinions/Superior/out/J-S42023-19o%20-%2010415891078797439.pdf?cb=1

CHRIA – Expungements, Convictions, License Applications

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

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

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

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

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

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

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

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

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

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

Immediate Temporary Suspension — Are Temporary for 180 Days Only

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

The post-180 day period is the time after which licenses can get their license back pending disciplinary action. I am currently handling several ITS cases with disciplinary action pending and not pending.  In one case disciplinary action was not filed for over a year. The licensee did not file a petition to reinstate her license and did not engage in the practice of her profession. This was a foolish mistake because absent disciplinary action, her license was subject to reinstatement without restriction after 180 days.  A little bit of research and hiring counsel would have properly notified the licensee of the lack of basis to continue her suspension.

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

A Good Lawyer is Money Well Spent – Protect Your License

A February 28, 2019 Commonwealth Court issued a decision reversing a Pennsylvania Medical Board order reprimanding a physician. The order reprimanding the physician stems from a medical malpractice case.  The patient died and the Medical Board accused the physician of practicing below the standard of care. The physician objected to the public reprimand placed on his license. The Commonwealth Court agreed, striking the discipline.
The Court concluded the physician’s objections at the hearing to certain evidence were proper.  The hearing officer and Medical Board should not have relied on inadmissible evidence when disciplining the physician. The evidence is hearsay statements in the form of a hospital-based peer review evaluation of the surgical procedure in which the patient died.  At the hearing, before the Medical Board, and on appeal the prosecutors argued the peer-review report was admissible. The doctor objected as he was not permitted to cross examine the report’s author at the hearing or before the medical board.
Both the Board and the doctor agreed the peer review is hearsay — a statement that ‘(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.’ In administrative hearings, the rules of evidence are relaxed and “all relevant evidence of reasonably probative value may be received.” 2 Pa. C.S. § 505.
With regard to the use of hearsay in administrative proceedings, it has long been established as follows:  (1) Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding of the Board[;] (2) Hearsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding  of the Board, if it is corroborated by any competent evidence in the record, but a finding of fact based [s]olely on hearsay will not stand. This is known as the “Walker rule.”
The prosecutors tried to argue the peer review report was a standard medical record upon which experts ordinarily rely in rendering their opinions and conclusions. This is a very standard practice in medical malpractice and other civil litigation cases in which experts are involved. Experts are allowed to review medical records that contain hearsay statements upon which their expert opinions and reports may be based. Through appropriate cross-examination with experience trial counsel before the hearing officer, the physician established that the board expert did not review, read, or rely upon the peer review report to base his conclusion.
The Commonwealth Court ruled the prosecutor did not satisfy the evidentiary predicates allowing the medical board to consider the peer review report as admissible hearsay. Stated another way, the physician had a good attorney who protected the physician at the hearing and the prosecuting attorney messed up.
The prosecutor tried to argue the Peer Review Officers were unavailable witnesses.  The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:  (1) Former Testimony. Testimony that:  (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had–or, in a civil case, whose predecessor in interest had–an opportunity and similar motive to develop it by direct, cross-, or redirect examination. PA. R.E. 804(b)(1) (emphasis added).
The former testimony exception applies when the declarant is unavailable. The Board acknowledged this limitation in its adjudication but dismissed the “unavailability of a declarant” requirement as serving “no useful purpose in an administrative proceeding where the objective is to adjudicate issues in an expeditious  manner.”  The lapse of six years between the incident and the Board’s adjudication belies this rationalization. The record offers no support for the position that any of the witnesses who appeared in the peer review hearing were unavailable to testify at the Board hearing or to provide a deposition.
The prosecutors then tried to argue the peer review report was a business record. The prosecutors did not properly lay the foundation to allow the hearing officer or medical board to consider the peer review report as a formal business record. For a record to be “certified” requires the custodian of the records to sign a certification before a notary public. 42 Pa. C.S. § 6152(d). 10 Assuming, arguendo, that the Peer Review Transcript is a “medical chart” or a “medical record,” it lacks a certification from the custodian of records for the hospital. Because the Peer Review Transcript was not authenticated or certified, it does not pass the threshold for having a document admitted under 42 Pa. C.S. § 6151.
This is a great case affirming a fundamental part of my professional licensing advocacy. Every licensee should have competent counsel both who knows the administrative regulations, procedures, and has been a civil or criminal litigating attorney who is fully competent and versed in the Pennsylvania Rules of Evidence. Counsel that stipulates or does not object to certain evidence coming into these licensing hearing is engaging in malpractice. They are not properly representing their licensee client to the fullest extent of the law. Even minor admissions or stipulations of certain evidence could become the linchpin upon which a hearing officer, licensing board, or the Commonwealth Court will rely to allow discipline.
In hiring counsel, licensees must make sure the attorney is experienced in both trying cases, the rules of evidence, and the licensing board regulations. This trial and appellate attorney who handled Dr. Ives his case did a great job. Congratulations. Call me to discuss your case and let me protect your license.

Getting out of the PHMP

How do you get out of Pennsylvania’s Professional Health Monitoring Program (“PHMP”). The PHMP administers both the Voluntary Recovery Program “VRP” and the Disciplinary Monitoring Program (“DMU”)? As a licensed professional voluntarily enrolled in the PHMP – VRP – or forced into the DMU, you agreed to PHMP terms to keep working. You have been compliant for over three years. Now you think the program time is up!

But what you think is “compliant” may not be what your PHMP case worker thinks is compliant. Compliance does mean no positive drug tests and attendance and proper participation in all medical evaluations. Compliance includes AA or NA weekly meeting, daily telephone call-in, and/or random drug testing for at least three-years. Also, it is mandatory to provide three years or more of employer quarterly work evaluations.

Compliance also means alcohol and drug free for: 1) the first 3-6 months before the licensing board formally enters the Consent Agreement. This is the time period after signing the contract and filing out the personal data sheet when you accepted VRP DMU terms. Case workers do not tell you that it will take 3-6 months for a board to approve the contract. Also, they do not tell you to stop the drug testing after three years in the PHMP. They do not tell you when the three years clock starts to run.

There is one more requirement that is the most important part of compliance; paying all associated costs of the program. Many professionals ignore or forget to pay these expenses. Unless paid, the PHMP term will not end.

Recently I have fielded several calls from PHMP participants who have satisfied all of the above compliance requirements but did not finish paying 100% of the PHMP program costs. Each thought they were “done the program”. Licensees even receive eligibility letters from their PHMP case worker suggesting that they are poised to be satisfactorily dismissed in thirty days from the PHMP.

That thirty day period ran out with no case worker activity. Then, a positive alcohol test is claimed. Case workers then argued the licensee violated the program and requested a 12-18 month extension. These licensees were super angry.

Because a licensee did not pay the monetary expense, PHMP case workers do not file the termination petition with the board administrator. It is only this form, and only filed by the PHMP case worker, that will allow a board to terminate the licensee from the PHMP and reinstate the license to non-probationary status. Case workers continue to expect drug testing and abstinence. Licensees must remain compliant until the board discharges them from the program. This includes drug testing phone calls, testing, travel requirements, medical records, and employment restrictions.

An extension of a PHMP agreement after it natural conclusion, solely because a license failed to pay the costs is an abusive practice. It is an example of the PNAP Trap of which I write extensively. Don’t let PHMP PNAP/SARPH/PHP pencil pushing caseworkers harass you and your professional career merely because you didn’t pay program costs. After 3 to 4 years of continued employment, maintaining financial responsibility should be much easier. You should fit this expense in your budget and pay monthly PHMP costs so that when you are eligible for termination from the program, PHMP caseworkers can not subject you any more torture. Call me to discuss.

Petitions to Suspend a Professional License While on Probation

A Petition for Appropriate Relief (“PAR”) is a licensing board prosecution motion, presented to a licensing board committee, alleging an emergent need to suspend a licensee’s license.  PARs target licensees currently on PHMP disciplinary probation, whether a voluntary agreements and involuntary, licensing board order.  This is the TRAP I reference throughout my website, blogs, and PNAP Trap articles.

Licensees placed in the disciplinary monitoring unit (“DMU”) or the Voluntary Recovery Program (“VRP”) administered by the Professional Health Monitoring Program (“PHMP”) are subject to extensive board orders imposing mandatory drug or alcohol abstinence.  The bait and switch of provision in every PHMP agreement is that for a licensee to maintain or be re-licensed they agree to automatic license suspension if they violate the terms and conditions of PHMP probation.
The Petition for Appropriate Relief or PAR is the prosecutor’s mechanism advising the board of licensees’ probationary order violations. Immediate license suspension is the initial board remedy.  Thereafter, in order to secure licensure reinstatement, a licensee must file an answer to the PAR within 20 days.  If the licensee does not seek a hearing or continue to honor the terms and conditions of the probation, their license will be indefinitely suspension.

It is through the PAR  that board prosecutors apply a heavy-handed approach to compelling compliance with PHMP’s drug abstinence programs.  In agreeing to the DMU, VRP agreement administered through the PHMP agreement, the licensee consents to this automatic suspension process. Each licensee waves a pre-suspension due process hearing.
PHMP, PNAP, and PHP caseworkers can raise any number of issues in a PAR.  I have extensively written about the overbearing trap into which these programs invite licensees.  PHMP uses the carrot and stick approach to licensees who seek reinstatement of or continuance of licensure.  Missed or failed drug test is the number 1 basis for a PAR filing.  PHMP case worker allegations of positive drug tests are routinely wrong, false, mixed up.
Unfortunately, PHMP cases workers claim improper violations two years after licensee’s participation in the programs. Prosecutors, tasked with keeping their jobs and honoring their clients’ (PHMP – through their respective Board)  demands, follow instruction and file PARs for any number of suspicious reasons. Unfortunately, the challenges to address a PAR while a license is suspended are very limited. Typically, extensions agreements or time periods within the programs is the only result that is accepted in order to secure license reinstatement.  Call me to discuss your case.

Pennsylvania’s Professional License Disciplinary Environment

The Professional Compliance Office within BPOA’s Legal Office, receives an average of 16,000 complaints per year. The office reviews these complaints to establish whether the complaint alleges conduct which is a violation of a practice act, whether a Board has jurisdiction, and whether there is sufficient evidence to merit further investigation. Complaints can be initiated by consumers, licensees, board or commission members, board or commission staff, competitor complaints, other state licensing boards, media information, and law enforcement.

When a complaint requires investigation, the Department’s Bureau of Enforcement and Investigation (BEI) interviews witnesses and obtains documents and collects evidence related to the allegation made in the complaint. Subsequently, a prosecuting attorney determines whether to close the complaint or to initiate a disciplinary action before the administrative licensing board.

Prosecution for violations of standards of practice are initiated through the filing of an Order to Show Cause.  The prosecutor who proceeds with the disciplinary action then bears the burden of proving misconduct before the board. Licensees are provided due process and the board adjudicates the case to either dismiss or sanction. Depending on the severity of the conduct proven, sanctions can range from probation and discretionary suspension, to revocation or automatic suspension as required by statute. Licensees have the right to appeal any sanctions to the Commonwealth Court for review.

Sanctions include: revocations, suspensions, stayed suspensions, voluntary surrenders, probations, reprimands, civil penalties. As of May 16, 2018, there had been 2,494 sanctions issued in fiscal year 2017-2018. This is the highest on record.  Nursing Board sanctions doubled between 2012 and 2018, from 436 to 840. Nursing Board actions account for 31% of all disciplinary cases.   Medical and Osteopathic Board sanctions remained the same at 190 and doubled from 27 to 46, respectively.  Pharmacy and Social Workers Board actions have both dropped by 50%.

Each board and commission is authorized to take disciplinary action based on the commission of a crime. Among these disciplinary actions taken:

• 29 % resulted in suspension;

• 17% resulted in stayed suspension (usually with probationary terms);

 

• 13.5% resulted in automatic suspension due to the Drug Act;

• 12.6% resulted in voluntary surrender of license;

• 12% resulted in revocation;

• 6.5% resulted in reprimands;

• 4.7% resulted in immediate temporary suspensions based on danger to health/safety of public;

• The remaining roughly 5% resulted in probation, a civil penalty (regular or Act 48), a stayed revocation, or other sanction such as remedial education, etc.

Call me to discuss your case.

A Constitutional Right to Work

On October 4, 2018 Commonwealth Court issued a significant decision in King v. BPOA discussing the Criminal History Record Information Act (“CHRIA”).This statute gives licensing boards a discretionary authority to discipline, suspend, revoke, grant, or deny licensure based upon a criminal conviction related to the practice of a license. CHRIA’s general purpose, however, is to control the collection, maintenance, dissemination or receive a criminal history record information.

Recently,licensing boards use CHRIA to discipline licensees for criminal conduct NOT related to the practice of license. King reiterates CHRIA does not provide standards for Boards to exercise their discretion. Boards must look at their specific and more relevant enabling statutes, the specific board licensing laws. CHRIA does not authorize discipline for a criminal convictions not related to the practice of the profession.

This is why in CHRIA disciplinary cases, those solely based upon a criminal conviction, licensee’s mitigation and rehabilitation evidence is critical. In 1998 King was convicted of indecent assault. He was sentenced to 5-10 years in jail, 10 years probation and supervision under Megan’s law. After parole and King satisfied all terms of his sentence, did not violate probation or parole, properly secured his barber license, and practiced his profession in an unblemished manner. He properly notified the Board of his conviction.

The Barber Board, after a hearing, revoked King’s license based upon the misdemeanor conviction and probationary sentences. King appealed. Commonwealth Court ruled the Barber Board abuses its discretion in revoking the license based upon CHRIA. As the licensee did not violate the Barber licensing statute, there was no other basis to discipline him.

This case is significant because Commonwealth Court relies upon Article 1, Section 1 of Pennsylvania’s Constitution. This Article guarantees Pennsylvania residents the right to engage in any of the occupations of life. By referencing a state constitutional guarantee the court effectively holds this rights outweighs CHRIA’s general purpose, non-mandatory discretionary license disciplinary.

King emphasizes Boards’ general statements of public safety concerns of a future occurrence is not proper evidence upon which it may base a discretionary disciplinary action. The Board abuses its description when it revokes licensure based on supposition that the licensee could potentially be an instructor for female students under the age of 18 or have contact with minor clients. Such speculative reasoning is flawed.

King rejects Board member perceptions that criminal convictions scar licensees’ character forever, with no possibility of rehabilitation. King instructs licensing Board to consider and properly allow for rehabilitation. King follows a line of 2018 Commonwealth Court cases instructing Pennsylvania licensing Boards that CHRIA is a not a proper basis to suspend or revoke a constitutionally secured property right. https://www.phila-criminal-lawyer.com/blog/2018/05/another-appeals-court-reverses-a-pennsylvania-licensing-board-disciplinary-decision.shtml

Fully employment and hard work is the rule. This is in contrast to many recent cases of which I have written. Commonwealth court is telling the boards as a matter of policy, “let these people work”. Rehabilitation is part and parcel with employment, which is part and parcel with members being productive people in society.

Call me to discuss your case.

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