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.

Juvenile MEgan’s Law update 2012

On December 20, 2011, Governor Corbett signed into law SB 1183 (1857) as Act 111 of 2011 (Megan’s Law IV). The law makes extensive revisions to Pennsylvania’s classification and registration requirements of adult and juvenile sexual offenders. Juvenile registration responsibilities are now extensive and violation consequences severe. The revised classification and registration matrix can be found on the Pennsylvania Sentencing Commission’s website, http://www.pcs.la.psu.edu, in the About the Commission, Meeting and Materials page, item sixteen.
The revised registration scheme now requires previously adjudicated fourteen year or older juveniles, not subject to Megan’s Law, but whose criminal acts are now classified and fall within Megan’s law, to be subject to Megan’s Law if they are under supervision (jurisdiction) of Juvenile Court on December 21, 2012. Also, after December 20, 2011 any juvenile who admits to, or is adjudicated delinquent for, committing a major sex offense will be subject to Megan’s Law if they are under court supervision after December 21, 2012.
A “Juvenile Offender” is an individual 14 years of age or older after December 21, 2012, who is adjudicated delinquent for committing a major sex offense or any time prior to that date was adjudicated delinquent for committing such an offense, regardless of age at the time the offense was committed, and as of December 21, 2012 is still under court supervision.
Juvenile Offenders must now register for life (with quarterly confirmation), receive lifetime monthly counseling, and are subject to the same community notification requirements as adults. It is a separate, first degree felony offense for the Juvenile Offender to knowingly fail to comply with any post-adjudicatory treatment and/or registration requirement. 18 Pa. C.S.A. § 4915.
Arrest and detention without a warrant is possible if the investigating officer has probable cause to believe a registration violation has occurred. Id. Other registrants subject to either fifteen or twenty-five year registrations commit felonies of the 3nd and 2rd degree, respectively, if they knowingly fail to register. It is a first degree misdemeanor, as well as a violation of court supervision, for lesser registrants who fail to comply with all treatment requirements. Id.
Depending on the supervisory tier classification, mandatory minimum incarceration of between two and five years shall occur for the registrant, adjudicated or convicted, who fails to register for the first time. A second or subsequent conviction for failure to register carries with it a mandatory minimum jail term of twenty five (25) years to life, depending on the underlying criminal offense. 42 Pa.C.S.A. § 9718.4.
If the Commonwealth provides notice of intent to proceed with the mandatory minimum sentence after a conviction or adjudication for failing to register, the court shall impose at least such minimum sentence. 42 Pa.C.S.A. § 9718.4 (C). If the court does not, the Commonwealth has a right of appeal and the appellate court shall vacate any deficient sentence and remand with instructions to impose at least the mandatory minimum sentence. 42 Pa.C.S.A. § 9718.4 (D).
Forfeiture of any personal or real property that the court finds aided or assisted the commission of the major sex or failure to register offenses is now possible. This means houses and cars in addition to computers and other more typical instrumentalities of the crime.
Most significantly, the reclassification scheme fundamentally alters the post-adjudication lifetime supervision compliance requirements of all juveniles, regardless of whether they are in custody or supervision on their 20th birthday. Juvenile Offenders, “sexually violent delinquent children”, and juveniles previously civilly committed are now required to be annually psychologically assessed and are exposed to yearly involuntarily civil commitment. 42 Pa.C.S.A. § 6403. Importantly, sexually violent delinquent children are those children, regardless of what sex offense they were adjudicated of committing, who have been assessed as such by the Sex Offenders Board.
At a civil commitment hearing, the Commonwealth must prove by clear and convincing evidence that “the person has a mental abnormality or personality disorder which results in serious difficulty in controlling sexually violent behavior that makes the person likely to engage in an act of sexual violence.” 42 Pa.C.S.A. § 6404(D). If the court makes such a finding, it shall immediately commit the individual for one year for treatment, with only an annual review.
If the offender is released from involuntary civil commitment, there is an additional year of involuntary outpatient treatment, with extensive supervision restrictions, including polygraph testing, prior to discharge from court supervision. 42 Pa.C.S.A. § 6404.2. A juvenile, or adult by now, who violates any term of the out-patient treatment plan shall be judicially recommitted for a year without a hearing upon presentation of such violations to the court. 42 Pa.C.S.A. § 6404.2(E).