What is a “Conviction” – How Important is Drug Court to the Licensed Professional?

In 1999 Tim Kearney was issued his Pennsylvania physician assistant (“PA”) license. In March 2010 he admitted himself into a treatment facility for drug addiction issues.  On August 16, 2011 he plead guilty to the felony Drug Act violation –  securing a prescription by fraud.  At the time of his guilty plea, Kearney acknowledges he understood that by pleading guilty he was  “admitting to committing the criminal charge” as alleged under the Pennsylvania Drug Act.

In December 2011 the Pennsylvania Medical Board automatically suspended Mr. Kearney’s PA license for no less than 10 years pursuant to section 40(B) of the Medical Practices Act of 1985.  This provision requires the Board to suspend any licensee who suffers a felony conviction for violating any provision of Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act (CSA). 35 P.S. § 780–113(a)(12).

In December, 2011, Kearney filed in criminal court a petition to vacate his guilty plea and enroll in the county adult drug court program.  In June 2014, after 2 1/2 years in drug court, Kearney petitioned to vacate his guilty plea and dismiss the criminal case.   His request was based upon compliance with all terms and conditions of the program. On June 20, 2014 the county trial court dismissed all of Kearney’s criminal drug charges.  They were subsequently expunged. (This is really important.)

Six months later, in December, 2014, Kearney filed a Petition to Reinstate his PA license based upon the lack of criminal conviction, the expungement, and his extensive drug and alcohol treatment.  This blog discusses the Commonwealth Court opinion approving his petition and reversing the Medical Board’s refusal to reinstate Kearney’s PA license.  The case is found at Kearney v. Bureau of Professional and Occupational Affairs, — A.3d —- (2017).

The Pennsylvania administrative law hearing examiner denied Kearney’s Petition to Reinstate his PA license. The hearing examiner concluded Kearney’s admission of guilt in the guilty plea colloquy and statement before the presiding judge when the charges were dismissed constitute either a conviction or an admission of guilt pursuant to the Medical Practices Act.  The hearing officer determined Kearney satisfied his burden of proof that he was able to resume his PA practice with reasonable skill and safety to patients, subject to monitoring by the physicians health program.

The Medical Board agreed with the hearing examiner that Mr. Kearney’s PA license remained indefinitely suspended as a result of a “conviction” as defined by the Medical Practices Act.  It did not reach the PHP and monitoring aspect of the decision because it determined Kearney’s license was still suspended.

Kearney appealed to the Commonwealth Court, which reversed. The sole issue on appeal was whether Kearney’s original guilty plea (vacated and now expunged) constituted a conviction and his statements on the record constitute “admissions of guilt“ in accordance with section 40B of the Medical Practices Act.

Commonwealth Court reviewed the Medical Practice Act.  “The Act provides, in pertinent part, that “[a] license or certificate issued under this act shall automatically be suspended upon … conviction of a felony under the act … known as [t]he [CSA] ….” 63 P.S. § 422.40(b). Section 40(b) of the Act clarifies that “[a]s used in this section, the term ‘conviction’ shall include a judgment, an admission of guilt or a plea of nolo contendere.Id.; see also section 2 of the Act, 63 P.S. § 422.2 (defining “conviction” as “[a] judgment of guilt, an admission of guilt or a plea of nolo contendere.

  • Section 43 of the Act further states that “[a]ny person whose license, certificate or registration has been suspended or revoked because of a felony conviction under the [CSA] … may apply for reinstatement after a period of at least ten years has elapsed from the date of conviction.” 63 P.S. § 43.

While the Act provides for automatic suspension of a license for a felony “conviction” under the CSA, the Act incorporates the CSA by express reference. By all reasonable means, this compelled the Court to unify two or more statutes in a cohesive and consistent fashion and avoid interpreting one statute in a manner that repeals or is otherwise incongruous with another statute.

Under section 17 of the CSA, a trial court “may place a person on probation without verdict if the person pleads nolo contendere or guilty to any nonviolent offense under [the CSA] and the person proves he is drug dependent.” 35 P.S. 780–117. (This is a Section 17 plea.)

Importantly, that section also states that “[u]pon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him,” adding that the “dismissal shall be without adjudication of guilt and shall not constitute a conviction for any purpose whatever ….” 35 P.S. § 780–117(3) (emphasis added). Section 19 of the CSA further declares that records of arrest or prosecution under the Act will be expunged. When a court orders expungement, the records “shall not … be regarded as an arrest or prosecution for the purpose of any statute or regulation or license or questionnaire or any civil or criminal proceeding or any other public or private purpose.” 35 P.S. § 780–119(b).

As a surface matter, Commonwealth court observes that a plain reading of the statutes indicates that, while the Act includes an “admission of guilt” as a subpart of the definition of a “conviction,” the CSA commands that a final disposition of “probation without verdict” does not constitute a “conviction.” Under the procedure in section 17 of the CSA for a “probation without verdict,” an individual’s “plea” is, in essence, held in abeyance, or not accepted, until there is a final determination by the court as to whether the individual has satisfactorily completed the terms and conditions of probation; if the individual does so, the trial court dismisses the charges and there is no verdict or finding of guilt in the matter.

Consequently, in order to afford the phrase “for any purpose whatever” in section 17 of the CSA its full linguistic effect, the Court reasonably interpreted it to mean that the oral and written statements made to a trial court in connection with a “probation without verdict” cannot be a considered a “conviction” for purposes of section 40(b) of the Act. To be sure, this construction is the only way in which the term “conviction” in the Act can be harmonized with the same term in the CSA.

Indeed, following dismissal of the underlying charges, the criminal record is expunged pursuant to section 19 of the CSA, and the criminal record cannot be used at all in an administrative licensing matter – not even as proof that the individual  was arrested or prosecuted.  In some statutes, our General Assembly, without using the word “conviction,” has expressly included the phrase “probation without verdict” to describe the basis upon which a licensing board can refuse, suspend, or revoke a professional license.

However, the General Assembly did not insert this or similar language in the Act. Nor did   the General Assembly inject “probation without verdict” alongside “admission of guilt” in the Act’s definition of a “conviction.” Inferentially, the divergence in word usage among the CSA, the Act, and other similar statutes is indicative of the General Assembly’s desire to conceptually separate an “admission of guilt” from a “probation without verdict,” suggesting to courts that the two should not be perceived or linked as being one and the same.

On the whole, Commonwealth Court precedent has clearly concluded as much.   For example, in Carlson, a teacher entered a plea of nolo contendere to charges that he possessed drugs in violation of the CSA, a plea that has “the same legal effect as a plea of guilty in the criminal proceedings in which it is entered.” 418 A.2d at 813. The criminal case proceeded under the provisions of section 17 of the CSA, and the teacher eventually had his criminal record expunged. Although this Court was convinced that the school district properly dismissed the teacher for immorality pursuant to sections 1122 and 1129 of the Public School Code, Act of March 10, 1949, P.L. 30, as amended 24 P.S. §§ 11–1122 and 11–1129, we pointed to the special nature and characteristics of the CSA and the probation without a verdict mechanism.

More specifically, the Court explained that when the charges are dismissed following compliance with probation, “no judgment is entered, notwithstanding the fact that the defendant is placed on probation, an act which normally constitutes a sentence, i.e. a judgment.” 418 A.2d at 813. On this basis, we determined that evidence of the teacher’s plea of nolo contendere was inadmissible, and further reasoned that, as a result of the expungement, there was “no criminal record” upon which the trier of fact could determine that the teacher engaged in conduct of a criminal nature. Id. Accordingly, this Court held that the teacher could not be discharged from his employment with the school district as a matter of law.

The crisp and clean understanding of this case is that in any Medical Board supervised license case, for which disciplinary action is based upon a conviction that has been opened and erased due to Drug Court compliance, there is no conviction.  There is no basis to deny reinstatement of a license.  Whether the PHP gets involved is a different question.  This case merely, but forcefully, allows for eligibility for reinstatement once Drug Court is served, complied with, and all charges are dismissed and expunged.

Call me to discuss your case.

 

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Living Life to the Fullest Every Day

I woke up this October morning thinking “What can I do on an overcast, somewhat drizzly, muggy,  fall Sunday morning?  Mountain bike riding with biking buddies Rob and Caleb couldn’t have been easier decision.  The complicated question was where to ride in southeastern Pennsylvania.

We – six of us usually – have ridden (and gotten hurt and broke bikes) on multiple trails throughout Valley Forge State Park, Marsh Creek State Park, and the Green Lane Park and Reservoir.  Our local favorite, however challenging, was calling our names this morning. The pictures below do little justice to the beautiful, rugged, stream-studded creek gorge of Philadelphia’s 1800 acre Wissahickon Valley Park.

Starting out with wonderful hot coffee at Caleb’s house on near Elbow Lane, just east of McCallum, we dropped in near Climber’s Rock, riding the eastern side down to Rittenhouse.  From there, Forbidden Drive and the Blue Stone Bridge carried us over the creek and into the heart of the trails.  The three of us, lead by local favorite jeweler Caleb Meyer, climbed the western side near Kitchens – on the yellow trail – for over 8 miles of switch backs, hilly rollers, large rocks and steep inclines. Ever cautious and hoping not to get hurt, we made our way through this fabulous Sunday morning ride.

At Bell’s Mills and then Northwestern we saw the horses, forcing us to reckon with our approaching return trip home.  We crossed back over at Dewees Rock and Germantown Pike.  On this last 1/4 of the ride, worn and beaten down, we stopped several times to savor the scenery.  Waterfalls, covered bridges, and my favorite, the Lenape Chief Tedyuscung Statue.

The Indian Chief is always the highlight of my Wissahickon ride.  It is a challenge to get there, a joy to see, and a true testament to what hard work can achieve.  Leaving the Lenape Indian Chief behind, we headed east, picking our way back to Climbers Rock and Livesy Lane.  I have not ridden this part of the trial.  Each pedal stroke after 150 minutes in the saddle felt great, but exhausting.

We were finishing the last up hill climb to Elbow Lane, looking forward to some fine October-fest libation, when we suffered our first and only casualty of the ride.  Rob’s rear tire exploded with a hiss of exhaustion.  The brief walk out could not dampen our spirits or take the air out our awesome Sunday morning ride.  Thanks guys!  13.4 miles and 1500 elevation, 2.5 hours.

Last Shore Ride of the Summer Season

 

Summer is almost gone.  Almost is a relative word.  Summer is gone.  Ok, I understand it better now.  This is why I am getting up at the same time, but the sun has yet to rise.  As seasons change, so should we.

My clients and friends alike know I email, text, and get much worthy work done before or at sunrise.  This is regardless of when such occurs.  When riding my bike at these early times, I learned – almost the hard way – to make sure the light leading the way – sun or man made – was bright enough.

The weekend before 2017 Labor Day found me up early with a  fellow early riser enjoying the sunrise from a concrete perch between Longport, Ocean City, and Somer’s Point, NJ.  The majesty that happens each day, clear or cloudy, brings awe and surprise.  Views and scenery are what get me up on the bike so early.

Three clear, sunny, and increasingly windy mornings made each ride different.  Alternate and longer long routes also mixed it up.  Each day’s returning home trek brought me to the 9th Street Bridge entering Ocean City, NJ.  Gazing upon Ferris’ wheel, the mere slivers of land between the water ways, and 360 degree views takes my breadth away.

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As with life, the important things are the small ones.  Smell the coffee, take that break or picture, and soak up life.  Throughout these long 40-60 mile rides we always stop when coming across nature’s wonders. (Not for the road kill.  It smells so bad.)  Appreciate daily the bikers, joggers, landscapes, or just family that are around you.

See them. Understand them. Embrace them.  They are always orbiting your existence.  Don’t always change their trajectory to mirror yours. Let them continue on their course with you a follower of them.  The Boy Scout principle “Leave No Trace” comes to mind. Appreciate what is there, but do not disturb.  Evaluate, investigate, and gain knowledge.  But, leave it undisturbed for others to do the same.

Ending my ride brings me back towards Longport, NJ with the sun streaking towards its daily zenith. Tired, worn out, but loving each pedal stroke, I am ready for the remainder of the day.  But mostly, I just need a cup of coffee.

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.

Try to Recognize when an Attorney is Needed

When is it important to hire an attorney in a licensing and criminal defense case? When case agent first contacts you!  Do not talk to them.  Just say thank you, I will call you back; can we meet next week; no you can not come into my house!!
Every day licensing board investigators, police detectives, human resource departments, or other government investigators reach out to targets or “individuals of interest” in a wide range of potential investigations. These law enforcement officers (most state investigators are retired police detectives) are trained to secure statements from the subject of the investigation.  They call you, show up at your house, or try to meet with you at work.  This is when you know you need a lawyer.

My blogs generate phone calls from potential clients.  A recent theme of these calls sticks out;  investigators are employing consistent, heightened and aggressive investigative techniques to surreptitiously secure statements and admissions of criminal conduct, unprofessional licensing behavior, or illegal behavior.  This is explained in one sentence; why do an investigation when an admission from the target will solve the case.

Targets give statements for one reason: ignorance and naïve understanding of the law.   Targets  or potential criminal defendants give statements because they think they are obligated to cooperate, should cooperate, or that cooperating is in their best interest.  These reasons are incorrect.
Admitting to engaging in questionable or criminal conduct eliminates investigator’s obligation and duty of proving their case through means other than an admission by the target.  Admissions to detectives and investigators eliminates their need to perform basic investigator police work.  It satisfies  the police officer’s burden of proof in securing evidence of illegal or criminal conduct against you.
Licensees who admit to a Board investigator to practicing outside the scope of their license, stealing from their clients, overcharging for services, or any other offense does the investigator’s job.  In many cases, before the statement is secured, there is only a mere suspicion of inappropriate behavior.  There is no specific evidence of a criminal act. The statement itself becomes the evidence against you. The person giving the statement creates the criminal evidence for the investigator that they did not otherwise have.   (I feel the same way  about licensees who cooperate in the PHMP VRP assessments.  Do not give the Board’s any evidence they do not have.)
Once a criminal admission is given, the police officers don’t do anymore work. The state investigators don’t do anymore work. This is why there is no legal obligation to cooperate.
Giving statements to employers in work place investigations has the same ultimate result. I have written about this many times. Choosing to not give a blood test, write a personal statement, or even provide copies of medical records cannot be held against you. You can be fired, but it can’t be held against you. At times it’s more important to choose to remain silent then to keep your job.  Anything you say in the employment setting is merely turned over to the board investigator or police.
Remaining silent and not cooperating with any investigation  — not disclosing truly damaging information — sometimes is the best defense of your license or against criminal charges.  Do not succumb to the police officer bullying. Suggestions by police that they can secure search or arrest warrants should not persuade you to give up your constitutional rights.
You do not have to give a statement. You do not have to give a DNA test. You do not have to participate in any polygraph evaluation.   If the officer does not believe your word or accept your version of events, agreeing to provide objective forensic evidence will not change their mind. You will just be giving them evidence to accumulate and use against you at a later date.
Hopefully you have the opportunity to read this blog before you have spoken to an investigator about a licensing issue, participated in the workplace related investigation, or cooperated with any police inquiry inquiry about your job or your behavior. If not, call me as soon as possible.
Whether you hire me or any other lawyer, stop stop cooperating with any police investigation.

My County Practice – The Licensee Attorney on the Road

It is a cool, crisp 78° as I gander at the Pennsylvania Turnpike’s Blue Mountain and Kittatinny tunnels cutting through the middle of Pennsylvania. It’s 95° and 100% humidity in Philadelphia. The Blue Mountain Tunnel is one of two tunnels through Blue Mountain in Pennsylvania, located west of Newburg. It is one of seven tunnels completed for the Pennsylvania Turnpike mainline, … The Blue Mountain Tunnel is 600 ft (180 m) to the east of the Kittatinny Mountain Tunnel, separated by the Gunter Valley.

As I drive through these Pennsylvania mountains, including the tunnel at Tuscarora Mountain, I marvel at Pennsylvania’s endless greenery. Towns such as McCalloch, Lynnsburg, Sheepskin Hollow, and Mount Union dot the landscape but are surrounded by majestic trees and forests..

On Route 99 I snake through the mountain passes of Blair County. Smoke screened with early morning fog, panoramic views give way to county towns spread along the Juanita and Little Juanita River valley. Route 99 was carved out of the Lock Mountain. Its rolling hills provide necessary access to the historic railroad town of Holidaysburg. Local roads are named after long since passed farm owners who settled this area. Canoeing ramps, hiking and biking trails shunt off from the many state park.

Driving up Bald Mountain, through Phillipsburg, I left Tyrone behind. I scamper up Bald Mountain, through the pass, on the way to Clearfield County. Route 350 welcomes me with Victorian style homes. Phillipsburg is a brief one  light hamlet. Leaving Phillipsburg, I approach the Upper Susquehanna River and Clearfield Creek. Here the rolling mountains roads are dotted with roadside homes, businesses, and flow slowed by summer road construction.

Arriving in Clearfield County I am surprised by the size of the borough. I am taken aback at the age of the courthouse. Pictured below, its courthouse is regal, sturdy and welcoming.

 

 

 

 

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.

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!!!!!!!”

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.
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