The Drug Act — Pa Doctors’ Reporting Responsibilities for Arrest, Conviction, and Automatic Suspensions

Every day I read appellate cases that review disciplinary decisions of Pennsylvania’s licensing boards. A recent case discusses physicians’ unique arrest and conviction reporting responsibility to the State Board of Medicine.  Physician’s reporting of arrests versus convictions depends on the crime involved.

Pennsylvania’s MCare’s law regarding malpractice insurance coverage, 40 P.S. § 1303. 903(4), identifies physician’s reporting responsibilities if a professional liability claim is asserted them, disciplinary action taken against them from another jurisdiction, criminal sentencing for any case, and the arrest of a physician in four very limited classes of crimes. These offenses are:

• following offenses in this Commonwealth or another state:
  • (i)  18 Pa.C.S. Ch. 25 (relating to criminal homicide);
  • (ii)  18 Pa.C.S. § 2702 (relating to aggravated assault); or
  • (iii)  18 Pa.C.S. Ch. 31 (relating to sexual offenses).
  • (iv)  A violation of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act.

Physicians’ limited reporting responsibilities means arrests for following offenses does not trigger reporting to the state: domestic violence offenses, DUI’s offenses, theft offenses, or a string of federal related non-drug criminal arrest offenses.   Physicians do have to report arrests alleging a sex offense, homicide, aggravated assault, and a violation under the Drug Act.

Understanding what offenses are Drug Act offenses, not just possession or selling drugs, under The Act that are important.  Drug Act charges include patient record keeping, charting issues, and properly recording and dispensing medications.  Section 780-111 of the Drug Act focuses  on professional prescription, administration, and dispensing of drugs.  Here, the Act states:

• (a)  Except when dispensed or administered directly to the patient by a practitioner or his authorized agent, other than a pharmacist, to an ultimate user, no controlled substance in Schedule II, may be dispensed without the written prescription of a practitioner, except in emergency situations, as prescribed by the secretary by regulation. No prescription for a controlled substance in Schedule II may be refilled.

• (b)  Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in Schedule III or IV, may be dispensed without a written or oral prescription. Such prescriptions shall not be filled or refilled more than six months after the date thereof or be refilled more than five times after the date of the prescription unless renewed by the practitioner.

• (c)  No controlled substance in Schedule V may be distributed or dispensed for other than a medicinal purpose.

• (d)  A practitioner may prescribe, administer, or dispense a controlled substance or other drug or device only (i) in good faith in the course of his professional practice, (ii) within the scope of the patient relationship, and (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession. A practitioner may cause a controlled substance, other drug or device or drug to be administered by a professional assistant under his direction and supervision.

• (d.1)  A practitioner shall not prescribe, administer or dispense any anabolic steroid for the purpose of enhancing a person’s performance in an exercise, sport or game. A practitioner may not prescribe, administer or dispense any anabolic steroid for the purpose of hormonal manipulation intended to increase muscle mass, strength or weight except when medically necessary.

• (e)  A veterinarian may prescribe, administer, or dispense a controlled substance, other drug or device only (i) in good faith in the course of his professional practice, and (ii) not for use by a human being. He may cause a controlled substance, other drug or device to be administered by a professional assistant under his direction and supervision.

• (f)  Any drug or device dispensed by a pharmacist pursuant to a prescription order shall bear a label showing (i) the name and address of the pharmacy and any registration number obtained pursuant to any applicable Federal laws, (ii) the name of the patient, or, if the patient is an animal, the name of the owner of the animal and the species of the animal, (iii) the name of the practitioner by whom the prescription order was written, and (iv) the serial number and date of filing of the prescription order. In addition, the following statement shall be required on the label of a controlled substance: “Transfer of this drug to anyone other than the patient for whom it was prescribed is illegal.”

§ 780-112 focuses on records of distribution of controlled substances

• (a)  Every person who sells or otherwise distributes controlled substances, shall keep records of all purchases or other receipt and sales or other distribution of such substances for two years from the date of purchase or sale. Such records shall include the name and address of the person from whom purchased or otherwise received or to whom sold or otherwise distributed, the date of purchase or receipt or sale or distribution, and the quantity involved: Provided, however, That this subsection shall not apply to a practitioner who dispenses controlled substances to his patients, unless the practitioner is regularly engaged in charging his patients, whether separately or together with charges for other professional services, for substances so dispensed.

• (b)  Every practitioner licensed by law to administer, dispense or distribute controlled substances shall keep a record of all such substances administered, dispensed or distributed by him, showing the amount administered, dispensed or distributed, the date, the name and address of the patient, and in the case of a veterinarian, the name and address of the owners of the animal to whom such substances are dispensed or distributed. Such record shall be kept for two years from the date of administering, dispensing or distributing such substance and shall be open for inspection by the proper authorities.

• (c)  Persons registered or licensed to manufacture or distribute or dispense a controlled substance, other drug or device under this act shall keep records and maintain inventories in conformity with the record-keeping, order form and inventory requirements of Federal law and with any additional regulations the secretary issues. Controlled substances in Schedules I and II shall be distributed by a registrant to another registrant only pursuant to an order form.

Violations of either of these two subsections and their itemized list, by either doctors or other health care nurses is dealt with under section § 780-123, revocation of licenses of practitioners.

• (a)  Any license or registration heretofore issued to any practitioner may either be revoked or suspended by the proper officers or boards having power to issue licenses or registration to any of the foregoing, upon proof that the licensee or registrant is a drug dependent person on the use of any controlled substance, after giving such licensee or registrant reasonable notice and opportunity to be heard.

• (b)  The appropriate licensing boards in the Department of State are hereby authorized to revoke or suspend the registration or license of any practitioner when such person has pleaded guilty or nolo contendere or has been convicted of a felony under this act or any similar State or Federal law. Before any such revocation or suspension, the licensee or registrant shall be given a hearing before the appropriate board. At such hearing the accused may be represented by counsel and shall be entitled to compulsory attendance of witnesses.

• (c)  The appropriate licensing boards in the Department of State shall automatically suspend, for a period not to exceed one year, the registration or license of any practitioner when the person has pleaded guilty or nolo contendere or has been convicted of a misdemeanor under this act. The district attorney of each county shall immediately notify the appropriate State licensing board of practitioners subject to the provisions of this section. However, the provisions of such automatic suspension may be stayed by the appropriate State licensing board in those cases where a practitioner has violated the provisions of this act only for the personal use of controlled substances by the practitioner and the practitioner participates in the impaired professional program approved by the appropriate State licensing board for a period of between three and five years, as directed by the appropriate licensing board. If the practitioner fails to comply in all respects with the standards of such a program, the appropriate licensing board shall immediately vacate the stay of the enforcement of the suspension provided for herein. Automatic suspension shall not be stayed pending any appeal of a conviction. Restoration of such license shall be made as in the case of a suspension of license.

35 Pa. Stat. Ann. § 780-123

Case law addressing practitioner’s objections to the emergent and disparate impact Drug Act convictions and their automatic suspensions have on doctors is very clear.   Board discretion and legislative prerogative regarding public safety out weight a physician’s property right in their license.  “Licensed medical practitioners’ unique access to controlled drugs and a physician’s appropriation of this access for illegal purposes presents a danger to the Commonwealth, for which the General Assembly has legitimately and rationally adopted a separate policing device.”  Call me to discuss your case.

Criminal Contact and the Licensee’s Mandatory Reporting Reesponsibility

Every day brings new licensing reporting requirements that affect each licensee’s renewal responsibilities.  I reported in October 2015 of the Pennsylvania Nursing Board’s new mandatory reporting of just an arrest, not a conviction, for any misdemeanor or felony.  The questions that have arisen since then range from how long will the renewal time period take to what disciplinary action can I expect.

Every Board is different with regard to how long it will respond to either renew a license or advise of the potential consequence. Each board website contains general admonishments on what documents to attached and the variety of reasons for their dilatory response. One consistent response is to always blame the applicant, licensee for improper or unclear documentation.

 Statements such as “If you have previous criminal conviction(s) and/or discipline on another health license it will take longer to review your application. ” None the less, every licensee can assist in the enforcement review by submitting the following so that a letter does not have to be mailed out requesting these items.

• letter of explanation
• certified arrest and court records or out of state discipline documents
• letters of reference
• current work performance evaluation

Many state board websites include definitions that help explain the reporting requirements.  New Jersey’s states :

Conviction” includes a plea of no contest and any conviction that has been set aside or deferred pursuant to Sections 1000 or 1203.4 of the Penal Code, including infractions, misdemeanor, and felonies. It is not necessary to report a conviction for an infraction with a fine of less than $1,000 unless the infraction involved alcohol or controlled substances. However, any convictions in which a plea of no contest was entered and any convictions that were subsequently set aside pursuant or deferred pursuant to Sections 1000 or 1203.4 of the Penal Code must be disclosed. “License” includes permits, registrations, and certificates. “Discipline” includes, but is not limited to, suspension, revocation, voluntary surrender, probation, or any other restriction.

The following information must be provided for each license discipline or conviction sustained:

1. A detailed written explanation describing the circumstances and events that led to your arrest(s) and conviction(s), including: date and place of arrest; arresting agency; court where case was heard; and sentencing information, including fines, courses, counseling, restitution, probation, parole, community service, and jail or prison time.
2. Documents relating to the arrest, such as: police report, arrest report, booking report, complaint, citation or ticket.
3. Documents from the court, such as: Notice of Charges, Complaint, or Indictment; Plea Agreement, Sentencing Order, Probation Order, or Judgment; Dismissal, Probation Release, or Court Discharge.
4. Any related mitigating evidence or evidence of rehabilitation that you want to provide.

In Pennsylvania, a Board-regulated practitioner who engages in unprofessional or immoral conduct is subject to disciplinary action under section 41 of the act (63 P. S. § 422.41). Unprofessional conduct includes, but is not limited to, the following relevant provision:

(19) Violating a provision of this chapter, Chapter 17 or Chapter 18 (relating to State Board of Medicine—medical doctors; or State Board of Medicine—practitioners other than medical doctors) fixing a standard of professional conduct.

(b) Immoral conduct includes, but is not limited to, the following:

(1) Misrepresentation or concealment of a material fact in obtaining a license or a certificate issued by the Board or a reinstatement thereof.

(2) The commission of an act involving moral turpitude, dishonesty or corruption when the act directly or indirectly affects the health, welfare or safety of citizens of this Commonwealth. If the act constitutes a crime, conviction thereof in a criminal proceeding is not a condition precedent to disciplinary action.

Disciplinary process is also available when a physician is convicted of a felony or being convicted of a misdemeanor relating to a health profession or receiving probation without verdict, disposition in lieu of trial or an Accelerated Rehabilitative Disposition in the disposition of felony charges, in the courts of this Commonwealth, a Federal court or a court of any other state, territory or country.

Moral turpitude” is not defined in the Pennsylvania’s Medical Practices Act but “is capable of being defined as evidenced by court decisions which determine that certain offenses are crimes involving moral turpitude.” “[M]oral turpitude” as “anything done knowingly contrary to justice, [h]onesty, or good morals.” A “[d]etermination of whether a crime involves moral turpitude turns on the elements of the crime, not on an independent examination of the details of the behavior underlying the crime. The Pennsylvania Supreme Court routinely defines moral turpitude to mean anything done knowingly contrary to justice, honesty, or good morals. The terms “good moral character” and the “lack of moral turpitude” are used interchangeably to define each other in many cases. ‘Fraud’ certainly has acquired a peculiar and appropriate meaning in the law. Black’s Law Dictionary 594 (5th ed. 1979) defines fraud as any kind of artifice employed by one person to deceive another.

The provision that addresses reporting criminal conduct on a license application or renewal is more specific as to which offenses must be reported. Section 16.16 contains medical doctors’ legal reporting responsibilities. There, reporting of disciplinary actions, criminal dispositions and other licenses, certificates or authorizations to practice for new applicants states:

(a) An applicant for a license, certificate or registration issued by the Board shall apprise the Board of any of the following:

(3) A finding or verdict of guilt, an admission of guilt, a plea of nolo contendere, probation without verdict, a disposition in lieu of trial or an accelerated rehabilitative disposition with respect to a felony offense or a misdemeanor offense relating to a health care practice or profession.

(b) Portions of applications provided by the Board will be reserved to assist applicants in meeting the reporting responsibilities enumerated in subsection (a).

(c) The reporting responsibilities enumerated in subsection (a) continue after the Board issues a license, certificate or registration. If, after the Board has issued a license, certificate or registration, any of the events in subsection (a) occur, the person shall report that matter to the Board in writing within 30 days after its occurrence.

Some Board’s have regulations that assist them determining which violations are substantially related to the applicant’s license. In California, Title 16, California Code of Regulations, section 1444, states a conviction or act shall be considered to be substantially related to the qualifications, functions or duties of a registered nurse if to a substantial degree it evidences present or potential unfitness of a registered nurse to practice in a manner consistent with the public health, safety or welfare.

 Please call me to discuss you license renewal issues or criminal conduct reporting responsibility.

Nurse License Renewal–ARD and Expungment Timing

Pursuant to § 21.29, the annual Nursing license expiration and renewal occurs on (1) April 30 in the even-numbered years, (2) October 31 in the even-numbered years, (3) April 30 in the odd-numbered years, and (4) October 31 in the odd-numbered years.
Upon receipt of the notice of the renewal, and the time period within which the application need be completed, the applicant for license renewal may complete and submit an application online or may mail a completed application form to the Board’s administrative office.
When applying for licensure renewal, a professional nurse shall, among other things, disclose any discipline imposed by a state licensing board on any nursing or allied health profession license or certificate in the previous biennial period and any criminal charges pending or criminal conviction, plea of guilty or nolo contendere, or admission into a probation without verdict or accelerated rehabilitative disposition during the previous biennial period. If the charges were expunged, then no reporting is required.
Timing of any ARD admission, completion of ARD and expungment of the ARD criminal record in conjunction with filing the renewal application is important. There are time lags when submitting any renewal application if the applicant must report being involved in the criminal justice system. Attaching court documents of ARD completion and expungment orders are important. Speeding up a criminal case to get in and out of ARD before renewal is important. If the criminal case is not over at the time of renewal, it must be reported. If it ends after renewal, and you ARD is entered and completed prior to renewal, with an expungment possible, but not granted, it must be reported.
It is very important to file an expungment application just prior to completion of the ARD so that court dates may be coordinated just after ending ARD and having an expungment granted. We have experience filing the petitions very quickly with the appropriate averments addressing licensing complications. While answering honestly and forthrightly in any renewal application is primary, there are always ways to minimize the impact of any criminal matter on a licensee’s future with ARD and expungments.