Riding the Bridges of South Jersey And Valley Forge

My administrative law blog followers are eagerly awaiting a new blog. The summer months have been slow with regard to new legal decisions or laws and/or regulations that substantially change my practice.

The various health related professional board’s summer meetings have kept me very busy.  After a licensing board meeting, clients’ matters that are on the agendas – accepting the decision of a hearing officer, approving an consent agreement, or ordering a Mental and Physical Evaluation – generate a lot of work.

Great weather affords me the opportunity to ride my bike a little bit more.  Averaging 125 miles a week takes me across many bridges, rivers, and bike trails, while traversing local county roads. My escapade to the Lancaster County Courthouse via West Chester and the Brandywine Valley was well documented.

Down the Shore, calm winds and little rain allows me to ride throughout the Garden State Parkway’s mainland beach communities. Leaving Margate, Atlantic County, I ride through Somers Point, along the Great Egg Harbor River up to Mays Landing. Turning left on Route 50 (The Pine Barrens Byway), I have had the pleasure of being joined or joining other riders into Cape May County.  We ride to Marmora, or across to Milmay, Estell Manor,  Tuckahoe, Corbin City, Ocean City, and back through Longport New Jersey.

The pictures reveal the geographic flatness of these rides. The hills are man-made and provide a reasonable perch through which one can take in mother nature’s wonders. The artificial elevations are gentle, well paved, and are really fun way to end the ride.

The South Jersey Pine Lands provide a wonderful misty fog, with a crispy pine flavor, in the early morning cool air. This differs from the Schuylkill River Trail, the new pedestrian bridge at Route 422, and riding through Valley Forge Park at sunrise.  It’s a hard choice as to which is a better ride; 50 to 60 miles of flats in just over two hours, or 25 miles of hills and the history of the Valley Forge and Brandywine valley in the same amount of time.

The one constant in all of these rides are the bridges. Large or small, tall or short, long or brief, they allow walkers and riders to go from one place to another without which the rides could not take place. It’s just great to be out there, getting energized and ready for each day.
 Call me to discuss you licensing matter.
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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.

Road Riding in the Counties

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

Proposed Pennsylvania Law for All Licensee’s Criminal Charge Reporting Responsibilities

In February several Pennsylvania state senators introduced Senate Bill number 354 of 2017. This bill drastically changes licensees reporting responsibilities once they are charged with a crime. Currently, most licensees (Except nurses) must report a criminal charge only upon conviction. Senate Bill 354 as currently written specifically states:

Section 2.1.  Reporting of sanctions and criminal proceedings.

(a)  Duty.–An individual who holds a license, certificate or registration issued by the Bureau of Professional and Occupational Affairs shall, as a condition of licensure, certification or registration, do all of the following:

(1)  Report to the appropriate licensing board or licensing commission a disciplinary action taken against the licensee, certificate holder or registrant by a licensing agency of another jurisdiction.

(2)  Report to the appropriate licensing board or licensing commission an arrest, indictment or conviction of the licensee, certificate holder or registrant.

(b)  Time.–A report under subsection (a) shall be made as follows:

(1)  Within 30 days of the imposition of the sanction described under subsection (a)(1).

(2)  Except as set forth in paragraph (3), within 30 days of the earlier of:

(i)  an arrest under subsection (a)(2); or

(ii)  an indictment under subsection (a)(2).; or

(iii)  a conviction under subsection (a)(2).

(3)  In the case of a criminal action under subsection (a)(2) that is initiated prior to the effective date of this paragraph, within 30 days from the later of:

(i)  the date of conviction; or

(ii)  the effective date of this paragraph.

If a licensee does not report a new arrest within 30 days, the licensee is subject to additional disciplinary action.

All Pennsylvania licensees may soon become subject to disciplinary action as a result of accused, not convicted, criminal conduct.  This is a much different from the current scenario of disciplinary action upon conviction. The remaining subsection identified below is consistent with current procedural due process rights to a licensee whose license is subject to an immediate clear and present danger emergent suspension.

(a)  Temporary suspension.–A licensing board or licensing commission may temporarily suspend a license, certificate or registration under circumstances as determined by the board or commission to be an immediate and clear danger to the public health and safety. The board or commission shall issue an order to that effect without a hearing, but upon due notice, to the licensee or, certificate holder or registrant concerned at his last known address, which shall include a written statement of all allegations against the licensee or, certificate holder or registrant. After issuing the order, the board or commission shall commence formal action to suspend, revoke or restrict the license or, certificate or registration of the person concerned as otherwise provided for by law. All actions shall be taken promptly and without delay.

(b)  Hearing.–Within 30 days following the issuance of an order temporarily suspending a license, certificate or registration, the licensing board or licensing commission shall conduct or cause to be conducted a preliminary hearing to determine whether there is a prima facie case supporting the suspension. The licensee or, certificate holder or registrant whose license or, certificate or registration has been temporarily suspended may be present at the preliminary hearing and may be represented by counsel, cross-examine witnesses, inspect physical evidence, call witnesses, offer evidence and testimony and make a record of the proceedings. If it is determined that there is not a prima facie case, the suspended license, certificate or registration shall be immediately restored. The temporary suspension shall remain in effect until vacated by the board or commission, but in no event longer than 180 days.

(c)  Automatic suspension.–A license or, certificate or registration issued by a licensing board or licensing commission shall automatically be suspended upon:

(1)  the legal commitment to an institution of a licensee or, certificate holder or registrant because of mental incompetency for any cause upon filing with the board or commission a certified copy of the commitment; or

(2)  conviction of a felony under the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or conviction of an offense under the laws of another jurisdiction which, if committed in this Commonwealth, would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act.

(d)  Stay.–Automatic suspension under subsection (c) shall not be stayed pending an appeal of a conviction.

(e)  Restoration.–Restoration of a license or, certificate or registration shall be made as provided by law in the case of revocation or suspension of the license or, certificate or registration.

New to the licensing and regulatory scheme for every licensee is the ability of a licensing board to automatically suspend a license if the licensee is committed to a mental health facility for any reason or a conviction under the Drug Act. Restoration of the licensees license suspended under Senate Bill 354 shall be consistent with any other procedural due process rights.
Please call me to discuss your case

More Great Client Reviews

Please read this review if you are in jeopardy of your nursing license. Mr. Richard Hark is hands down absolutely amazing. When I received a letter from the State Board of Nursing I thought my career was over from a DUI. They will try to trick you into pleading guilty over a first offense DUI. I did research and Mr. Hark has amazing blogs and answers which made me call his office immediately. The best part of it all is Richard is 100% dedicated to you as a client. I left a message on his voicemail and he literally called me back in 15 minutes from his cell phone and told me to store his phone number and he will be there for you 100%. At that moment that pit nervous feeling I had in my stomach went away. I gave him info on my DUI and faxed him over information he requested. His secretary Jessica is also amazing you are never waiting they are on top of everything. Mr. Hark and his staff do not judge you and they understand your situation. Needless to say I hired Richard and I was evaluated by a medical doctor not a social worker. Richard stands by you through the whole process. He even set up a payment plan for me. Not only will Richard Hark save your license and career he is very caring and always around. He always responds to you as soon as he can(always within the day). Do not risk losing your career he saved my nursing license and he will do the same for you.

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.

Pennsylvania’s Stregthening Disciplinary Enforcement Environment

My law practice focuses on defending professional licensee disciplinary actions based upon criminal convictions, professional competence, and/or drug and alcohol addiction and professional impairment. I write blogs about Pennsylvania professional licensing disciplinary actions.  Recently, I reviewed all of Pennsylvania’s licensing board disciplinary actions for October and November of 2016. My case load is consistent with the disciplinary orders I reviewed; the cases reflect a stiffening enforcement environment for each of Pennsylvania’s 29 licensing boards.

In November 2016 Bureau of Professional and Occupational Affairs’ 29 professional licensing boards entered 135 different disciplinary orders.  Board orders range from accountancy, real estate, architecture, chiropractic, massage therapy, nursing, the numerous medical fields, social workers, to veterinary medicine. Of the 135 actions, 41 or 30% of the prosecutions were against non-Pennsylvania practicing licensees. Of the remaining 94 actions (70%), 30 cases or 31% were taken against licensees in Philadelphia and its five surrounding counties. The October 2016 statistics are about the same.

The consistency in the prosecutions is staggering. Many licensees are not represented by counsel. Many orders or settlements include significant civil penalty fines. In the dental profession, there is an increase in petitions for immediate temporary suspensions, pending hearings, on the grounds that the licensee’s practice constitute an immediate and clear danger to the public health and safety. Throughout the medical professions, including pharmacy, numerous disciplinary actions are based upon misdemeanor or felony Drug Act convictions.  Accountancy and real estate board prosecutions center on fraud issues.  The statistics suggest one main point; over 60 percent of cases are from the Philadelphia area and out of state but all of which prosecutions are based upon criminal convictions or drug impairment issues.  These types of disciplinary cases can be fought and penalties reduced.  Many licensees do not think so and either do not have any counsel or they hire the wrong, incompetent counsel.  This is a mistake.

A significant aspect of my practice is reflected in the disciplinary orders. Whether a medical doctor, osteopathic doctor, or nurse, almost one half of disciplinary actions are based upon allegations of inability to practice a profession with reasonable skill and safety to patients by reasons of a mental or physical illness or condition stemming from a dependence upon alcohol or drugs that impairs judgment or coordination. Fighting these cases and contesting any allegation of drug or alcohol impairment is mandatory to keep your license.  DO NOT TAKE THESE ALLEGATIONS LIGHTLY.  DO NOT GO TO THESE ASSESSMENTS WITH OUT AN ATTORNEY.  See my other blogs on this issue.  The orders of discipline clearly reflect licensees incompetently fighting their case without counsel.  I have written extensive blogs on the importance of having an attorney.

A significant percentage of enforcement actions are based upon in or out-of state guilty pleas to either misdemeanors or felonies under the Drug Act or felonies (typically sexual assault) involved in the professional practice. The Boards are collaterally prosecuting every licensee convicted of any offense involving drugs, the violations of norms of practice of that specific profession, or crimes of moral turpitude. The criminal offense, whether drugs, DUI, or a practice related sexual offense does not have to occur in Pennsylvania. Having the right criminal attorney fighting the underlying criminal prosecution is paramount to avoiding collateral licensing prosecution.  I handle all of these criminal cases in Pennsylvania and New Jersey.  Call me to discuss the underlying criminal charges.

Out-of-state licensee’s disciplinary actions reveal a pattern of significantly harsher disciplinary outcomes. Apparently many of these licensees’ indefinite or automatic suspensions are based upon decisions to not contest the Pennsylvania disciplinary action or licensees fighting their case without counsel. Either choice is the worst possible way to address a Pennsylvania based disciplinary action. Every out-of-state licensee should fight each and every disciplinary action.

Please call me to discuss the heightened enforcement environment in Pennsylvania and your pending disciplinary action. Do not attempt to handle these cases on your own. Pennsylvania’s licensing board prosecuting attorneys are much more familiar with appropriate potential negotiating positions then the licensee. The number of professionals I represent before the various boards, and my current pending case load with the same prosecutor on your case, uniquely positions me to fight your case.

Expanded Psychology Board Disciplinary Authority

On June 23, 2016 the General assembly approved act 2016–53. This is a new provision in the the Psychology Board Act.  It became effective August 23, 2016.  This an amendment to the Psychology Board’s authority in disciplining it’s licensees. The specific section in bold states:

(b) When the board finds that the license or application for license of any person may be refused, revoked, restricted or suspended under the terms of subsection (a), the board may:

(1) Deny the application for a license.

(2) Administer a public reprimand.

(3) Revoke, suspend, limit or otherwise restrict a license as determined by the board.

(4) Require a licensee to submit to the care, counseling or treatment of a physician or a psychologist designated by the board.

(5) Suspend enforcement of its findings thereof and place a licensee on probation with the right to vacate the probationary order for noncompliance.

(6) Restore a suspended license to practice psychology and impose any disciplinary or corrective measure which it might originally have imposed.

(7) Take other action as the board in the board’s discretion considers proper, including precluding a suspended licensee from engaging in counseling or any other form of mental health practice.

The import of the new (b)(7) provision cannot be under stated. The legislature has given the Board authority to take “other action” within the “Board’s discretion it considers proper”. This is just about anything.  The case law discussing licensing boards authority to discipline their licensees is clear.

Appellate review of a discretionary Board action is limited to determining whether constitutional rights have been violated, an error of law committed, or necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704; Cassella v. Pennsylvania Board of Medicine, Bureau of Professions and Occupations, 119 Pa. Commonwealth Ct. 394, 547 A.2d 506 (1988); DePanfilis v. State Board of Pharmacy, 121 Pa. Commonwealth Ct. 526, 551 A.2d 344 (1988). The State Board of Nursing is the ultimate fact finder and may accept or reject the testimony of any witness in whole or in part.

The proper review of an agency’s action, assuming that it is not defective under the self-explanatory requirements of § 704 of the Administrative Agency Law, 2 Pa. Cons. Stat. § 704, is not whether its order was reasonable, but whether it was made in accordance with law, i.e., whether it was made in bad faith, and whether it was fraudulent or capricious. A reviewing court may interfere in an agency decision only when there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions. Slawek v. Commonwealth, State Bd. of Med. Educ. & Licensure, 526 Pa. 316, 318, 586 A.2d 362, 363 (1991).

Where a full and complete record is made of the proceedings before the State Board of Nursing, a reviewing court must affirm the adjudication unless it is in violation of the constitutional rights of the appellant or not in accordance with the law, the procedural provisions of the local agency law are violated, or a finding of fact of the State Board of Nursing necessary to support its adjudication is not supported by substantial evidence. Section 754 of the Administrative Agency Law, 2 Pa. C.S. § 754. The emphasis here is that is a full and complete record is a necessity.

Substantial evidence means that the evidence required to support the finding of an administrative agency must be “such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.”  Civil Service Com. V. Poles, 132 Pa. Commw. 593, 573 A.2d 1169, 1172 (1990); Gallagher v. Philadelphia State Board of Pharmacy, 16 Pa. Commw. 279, 330 A.2d 287, 289 (Pa. Commw. Ct. 1974).

It is imperative that counsel is present at any hearing to insure the trial evidence objections are properly set forth int he record.  In many cases, Board discretionary action can only be limited by insuring the evidence at the hearing is minimized against the licensee.  Or on Appeal, reviewing the record, to insure the Board decision is made in accordance with the facts presented at the hearing. Any decision based on facts outside of the record is not proper. Please call to discuss you psychology license disciplinary issues.

 

 

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.

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

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

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

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

All suspensions and revocations shall be made only in accordance with the regulations of the Board, and only by majority vote of the members of the Board after a full and fair hearing before the Board. All actions of the Board shall be taken subject to the right of notice, hearing and adjudication, and the right of appeal therefrom . . . . The Board, by majority action and in accordance with its regulations, may reissue any license which has been suspended. If a license has been revoked, the Board can reissue a license only in accordance with section 15.2. (Emphasis added.)

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

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

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

Unless ordered to do so by Commonwealth Court or an appeal therefrom, the Board shall not reinstate the license of a person to practice nursing . . . which has been revoked. Any person whose license has been revoked may reapply for a license, after a period of at least five (5) years, but must meet all of the licensing qualifications of this act for the license applied for, to include the examination requirement, if he or she desires to practice at any time after such revocation.All suspensions and revocations shall be made only in accordance with the regulations of the Board, and only by majority vote of the members of the Board after a full and fair hearing before the Board. All actions of the Board shall be taken subject to the right of notice, hearing and adjudication, and the right of appeal therefrom . . . . The Board, by majority action and in accordance with its regulations, may reissue any license which has been suspended. If a license has been revoked, the Board can reissue a license only in accordance with section 15.2.

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

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

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

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

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

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

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

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

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

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

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

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

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