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.

A Fringe Benefit of Practicing Law in the Commonwealth of Pennsylvania

There are many benefits to being a licensed, practicing lawyer in this country and Commonwealth.  One fringe benefit (and I mean fringe) of practicing law in the Commonwealth of Pennsylvania is driving through and to the counties in this jurisdiction.  Practicing in Delaware, Chester, York, Lebanon, Dauphin, Luzerne, Montgomery, Lackawanna, Berks, Bucks, Carbon, Lancaster, Northampton, Monroe, Clearfield, Blair, Center counties, I drive throughout the Commonwealth.  The word Commonwealth does not do justice to the beauty of the counties in which I travel and the courthouse in which I practice.

Monroe County Court House Square

 

One recent cool, spring day I had the pleasure of a relaxing drive from my home in the suburbs of Philadelphia to the Monroe County Courthouse in the quaint hamlet of Strousburg, Pa.  I left my home at 7:00 am.  By 7:45 I entered the Lehigh Valley and was approaching the scenic Delaware River Water Gap area.  I left Philadelphia in a heavy fog, arriving in the Lehigh Valley as the fog began dissipating from the  mountain valleys.   Steamy slopes and long shadows were cast as the sun climbed over the hills and heated the morning sky.  Route 78’s mountain passes were freed from their foggy blanket revealing the height of the tree-topped slops.  What a peaceful ride.  The rich majesty of Penn’s Woods (the translation of the word Pennsylvania) became evident.

The coffee shop on the square at the Monroe County Court House, Strousburg, Pa

Home made scones, croissants, and danish.

Upon arriving in Monroe county and the courthouse square, I had the pleasure of stopping for coffee at the café duet. Pictured above, I partook in a croissant and perfect cappuccino in the a sun-lit square.  I could have been in any hamlet or borough in another country.  I, however had the pleasure of attending to my profession, take care of a valued client, and being given the opportunity to enjoy Monroe County.

In between mentally organizing my case, I day dreamed about the incredible mountain bike riding trails that snaked through the various gorges, streams, and mountain passes. Exercising both my mind and body is a wonderful activity I engage in on a daily basis.  I will be in Center, Blair, and Clearfield counties over the next several weeks.  I will cherish my time and my profession while I enjoy the best the Commonwealth has to offer this summer.

Call me about your legal matter.

Pennsylvania’s DUI Statute and Warrantless Blood Draws — No Proof of Intoxication

Several months ago I wrote about the June 23, 2016, the United States Supreme Court decision in three companion cases — Birchfield v. N. Dakota, 136 S.Ct. 2160, 2173, 2185, 195 L. Ed. 2d 560 (2016).  Pennsylvania’s appellate courts have finally reviewed and decided a case addressing, in the context of a warrantless blood draw in a DUI, what is consent in Pennsylvania.

A review of the DUI informed consent issue is a good place to start.  Consistent with 75 Pa. C.S.A. §1547(c) the Pennsylvania’s Motor Vehicle code imposes evidentiary admissibility standards for blood tests consensually drawn without a warrant. Pennsylvania’s Motor Vehicle code addressing driving under the influence (“DUI”) of alcohol or controlled substances, 75 Pa. C.S.A. § 3802 (b)(c) & (d) each contain as an essential element of the criminal offense a defendant’s blood alcohol concentration level.

The grading provisions of the Pennsylvania Motor Vehicle code, 75 Pa. C.S.A. §3803(d), as they relate to DUI charges, identify in subsections 1 through 4 that any individual who is under investigation for violating 75 Pa.C.S.A. § 3802, et seq., (accusing an individual of operating a motor vehicle under the influence of drugs or alcohol such that they are incapable of safely driving) and refuses to voluntary submit to a warrant-less blood test, is to receive enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.

Birchfield  focuses on the legality of motorists lawfully arrested for drunk driving subject to enhanced criminal penalties for refusing to allow a warrantless blood draw to measure the level of alcohol in their blood stream. The Supreme Court rejects North Dakota’s asserted need to obtain blood alcohol readings absent a warrant in light of the fact that its motor vehicle code implied consent laws, similarly to Pennsylvania’s, provide for separate and enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.

Birchfield approves of implied consent laws such as 75 Pa.C.S.A. § 1547 that impose civil penalties and evidentiary consequences on motorists who refused to comply breath tests. However, Birchfield then rules it is unconstitutional for a state to insist upon an intrusive blood test and then to impose criminal penalties on those who refuse to submit to those same tests. “There must be a limit to the consequences to which motorists may have deemed to consent by virtue of a decision to drive on a public road.”

Birchfield makes clear the Pennsylvania’s Motor Vehicle Law, 75 Pa.C.S.A. §3802, et. seq., is unconstitutional because it provides for enhanced criminal penalties of those accused of operating a motor vehicle under the influence of drugs or alcohol when, during a search incident to a lawful arrest, the defendant who refuses to submit a warrantless blood draw pursuant to 75 Pa. C.S.A. §1547 and/or § 3802 is subject to enhanced criminal penalties.

In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances. The standard for measuring the scope of a person’s consent is based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent. Such evaluation includes an objective examination of the maturity, sophistication and mental or emotional state of the defendant. Gauging the scope of a defendant’s consent is an inherent and necessary part of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the product of coercion, deceit, or misrepresentation.  Commonwealth v. Smith, 621 Pa. 218, 77 A.3d 562, 573 (Pa. 2013)

The case of Commonwealth v. Evans, 2016 PA Super 293  (December 20, 2016), is the first major Pennsylvania Appellate Court decision discussing Pennsylvania’s DUI statute, the Implied Consent Law (“O’Connell Warnings”), and the prosecutor’s burden of proof at the suppression hearing.  Evans holds that a defendant does not have to prove they gave consent only based upon the threat of a more severe criminal penalty (jail and further license suspension).  Rather, the statute itself establishes this burden and the Prosecutor must rebut that legal presumption.  Because there is no ability to rebut a presumption of illegitimate consent when threatened with enhanced jail penalties, all motions to suppress must be granted.

Call me to discuss your DUI, the warrantless search of your blood, whether you consented or not, and the professional license issues as a result of the DUI.

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.

Pennsylvania Drug Act Charges — Doctors and Nurses — Reputation

My last blog focused on physicians’ criminal Drug Act conduct and reporting responsibilities to the Medical Board.  Whether a physician or professional nurse, the typical triggering event requiring reporting to a professional license board is a charge or conviction for violating Pennsylvania’s Drug Act.  Aside from license impacts, the evidentiary important of such a charge or conviction is profound.

There is a string of cases in Pennsylvania that identify a Drug Act offense as a crime of moral turpitude and crimen falsii.  What are these characterizations and import on your license defense shall be addressed in this blog.

The esteemed Leonard Packel and Anne Poulin, wrote the book Pennsylvania Evidence § 609 (1987 and Supp. 1994).   At the time of publication, the book did not contain drug violations in either category.  In Commonwealth v. Candia, 286 Pa.Super. 282, 428 A.2d 993 (1981), Pa Superior Court stated that Drug Act offenses were not crimen falsi.

There are several federal decisions, one in the Second Circuit Court of Appeals, United States v. Hayes, 553 F.2d 824 (1977), where the court held that importation of cocaine was not clearly crimen falsi, but could be if the particular facts demonstrated that the importation involved false written or oral statements on customs forms.  That court weighed the effect on credibility of various drug violations, stating smuggling “ranks relatively high on the scale of veracity-related crimes, but that mere narcotics possession would be less highly ranked on that same scale.

That court stated impeachment use of a conviction involving dishonesty or false statement refers to allegations particularly focusing on credibility issues, such as those for ‘perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense.  Each of these cases involves the commission of acts which involve a basic intent element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.

Pennsylvania has determined a similar list of crimes to constitute crimen falsi.  Included in this list, a recent Superior court decision holds, is writing prescriptions for a controlled substance to oneself, knowing one has a chemical dependency problem. The crime itself involves making a false statement because it necessarily involves the falsification of a prescription by a practitioner representing that it is not for a person who is chemically dependent.  As such, Drug Act prescription violations constitute crimes of crimen falsi and, thus, a crime of moral turpitude.

The import of these cases can not be understated.  The Board will look at any Drug Act conviction as a crime of moral turpitude because it relates in many different ways to the securing, utilizing, or possessing an illegal controlled substance.  Whether such is in the course of the practice or in one private life, a Drug Act violation therefore also becomes a “conduct unbecoming” violation.

Separate and aside from these issues, are the mandatory suspensions of any Drug Act conviction.  Call me to discuss 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.

 

 

Pennsylvania’s New Physician Licensing Compact

In November of 2015 I blogged about the proposed version of Pennsylvania’s Interstate Medical Licensure Compact Act.  One year later, effective October 26, 2016, the Act has become Law. What does this mean for Pennsylvania’s physicians?

The Interstate Medical Licensure Compact Act (the “Act”) only applies to “Physician”, a person who:
1. is a graduate of a medical school accredited by the Liaison Committee on Medical Education, the Commission on Osteopathic College Accreditation or a medical school listed in the International Medical Education Directory or its equivalent;
2. passed each component of the United States Medical Licensing Examination or the Comprehensive Osteopathic Medical Licensing Examination within three attempts or any of its predecessor examinations accepted by a state medical board as an equivalent examination for licensure purposes;
3. successfully completed graduate medical education approved by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association;
4. holds specialty certification or a time-unlimited specialty certificate recognized by the American Board of Medical Specialties or the American Osteopathic Association’s Bureau of Osteopathic Specialists;
5. possesses a full and unrestricted license to engage in the practice of medicine issued by a member board;
6. has never been convicted, received adjudication, deferred adjudication, community supervision or deferred disposition for any offense by a court of appropriate jurisdiction;
7. has never held a license authorizing the practice of medicine subjected to discipline by a licensing agency in a state, federal or foreign jurisdiction, excluding an action related to non-payment of fees related to a license;
8. has never had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration; and

9. is not under active investigation by a licensing agency or law enforcement authority in a state, federal or foreign jurisdiction.

Upon receipt of an application for an expedited license, the member board within the state selected as the state of principal license shall evaluate whether the physician is eligible for expedited licensure and issue a letter of qualification, verifying or denying the physician’s eligibility to the interstate commission. The following shall apply:
1. Static qualifications, which include verification of medical education, graduate medical education, results of any medical or licensing examination, and other qualifications as determined by the interstate commission through rule, shall not be subject to additional primary source verification where already primary source verified by the state of principal license.
2. The member board within the state selected as the state of principal license shall, in the course of verifying eligibility, perform a criminal background check of an applicant, including the use of the results of fingerprint or other biometric data checks compliant with the requirements of the Federal Bureau of Investigation, with the exception of federal employees who have suitability determination in accordance with 5 C.F.R. § 731.202 (relating to criteria for making suitability determinations).
3. Appeal on the determination of eligibility shall be made to the member state where the application was filed and shall be subject to the law of that state.

 

An important part of the Act is the joint investigation and disciplinary process. The law as enacted states:

ARTICLE IX JOINT INVESTIGATIONS
A. Licensure and disciplinary records of physicians are deemed investigative.
B. In addition to the authority granted to a member board by its respective Medical Practice Act or other applicable state law, a member board may participate with other member boards in joint investigations of physicians licensed by the member boards.
C. A subpoena issued by a member state shall be enforceable in other member states.
D. Member boards may share any investigative, litigation or compliance materials in furtherance of any joint or individual investigation initiated under the compact.
E. Any member state may investigate actual or alleged violations of the statutes authorizing the practice of medicine in any other member state in which a physician holds a license to practice medicine.
ARTICLE X DISCIPLINARY ACTIONS
A. Any disciplinary action taken by any member board against a physician licensed through the compact shall be deemed unprofessional conduct which may be subject to discipline by other member boards, in addition to any violation of the Medical Practice Act or regulations in that state.
B. If a license granted to a physician by the member board in the state of principal license is revoked, surrendered or relinquished in lieu of discipline, or suspended, then all licenses issued to the physician by member boards shall automatically be placed, without further action necessary by any member board, on the same status. If the member board in the state of principal license subsequently reinstates the physician’s license, a license issued to the physician by any other member board shall remain encumbered until that
respective member board takes action to reinstate the license in a manner consistent with the Medical Practice Act of that state.
C. If disciplinary action is taken against a physician by a member board not in the state of principal license, any other member board may deem the action conclusive as to matter of law and fact decided, and:
1. impose the same or lesser sanction(s) against the physician so long as such sanctions are consistent with the Medical Practice Act of that state; or
2. pursue separate disciplinary action against the physician under its respective Medical Practice Act regardless of the action taken in other member states.
D. If a license granted to a physician by a member board is revoked, surrendered or relinquished in lieu of discipline, or suspended, then any license(s) issued to the physician by any other member board(s) shall be suspended, automatically and immediately without further action necessary by the other member board(s), for ninety (90) days upon entry of the order by the disciplining board, to permit the member board(s) to
investigate the basis for the action under the Medical Practice Act of that state. A member board may terminate the automatic suspension of the license it issued prior to the completion of the ninety (90) day suspension period in a manner consistent with the Medical Practice Act of that state.

Any disciplinary action taken by the physician’s principle licensing board (their home state) shall, under House Bill 1619 of 2015, be deemed unprofessional conduct subject to discipline by other member boards in addition to any violation of the Medical Practices Act or regulations of the principle state. Revocation, suspension, or surrender of a license in lieu of discipline or suspension shall cause the physician’s license to suffer similar status by each and every member board to which that physician is licensed.

Conversely, however, any reinstatement of the physician’s license by his principal state medical board shall not affect the encumbered status of that physician’s license in other member states unless and until each member state takes individual action to reinstate my license. This provision allows each member board to conduct the practice of their medical board license disciplinary action independent of the Act. This process is different the current due process rules that require each state’s discipline of a multiple state licensed professional to be independent of, and not link to, any prior state’s discipline.

Any discipline action taken by the physician by a member board, not the principal license board, may be used by other member boards as a conclusive disciplinary action warranting imposition of the same or less or sanction or a separate disciplinary action by other member boards. As well, any license investigation by a member board that becomes the subject revocation, surrender or relinquishment in lieu of discipline shall cause the physician’s license to suffer the same consequences without any further action in each other member board without the subject to any disciplinary investigation. The physician truly becomes hostage to the initiating state’s disciplinary process and must fight it to the death so as to avoid any automatic domino effect.

The Act seeks to balance the states’ citizens’ need for medical care, a nation’s policy interest in granting access to high quality medical care to all citizens, and a physician’s ability to provide competent medical service regardless of artificial state borders against patient safety and criminally active doctors. The primary concern of the Act is who will become the disciplinary supervisor of doctors practicing throughout the country under the Act. While this is a serious and weighty issue, the Act in its current form fails to safeguard the medical license of Pennsylvania’s many doctors who will choose it as their primary state of licensure.

Pennsylvania’s medical schools have produced thousands of doctors over the years. Many secure initial graduate school training licenses and stay in the Commonwealth after residency to care for Pennsylvania’s residents. Many choose Pennsylvania as a home. The Act as drafted in House 1619 of 2015 will discourage this.

Physicians who seek to practice medicine in multiple states through the Act will sacrifice a significant degree of due process if any disciplinary investigation is commenced or levied against them. While there is significant financial interest to provide internet-based face time oriented medical practice across state borders without driving distances, to save lives, the inevitable due process concerns are significant. Exploding populations are overrunning medical investigatory boards with rampant anonymous complaints that will warrant investigation.

Every day baseless complaints of Medicare Medicaid insurance fraud, pill mills, sexual assaults, or drug theft and diversion are generated from specious reporters who are either aggrieved patients, angry disgruntled business partners, jealous or angry co-employees, or scorned lovers. House Bill 1619 of 2015 exposes Pennsylvania’s principle-based medical practitioners to unilateral concurrent disciplinary process of member states without the ability to respond, investigate, or even defend oneself in a court of law. Member state’s unilateral actions will automatically trickle back to the physician’s primary licensure state, causing potentially automatic disciplinary action there. The Act as written is not in the interest of Pennsylvania medical community.

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.

JNET, Criminal Charges, and What to Do Next

The summer is over. All the fun in the sun in done. Now, back to work. But for professional licensees who had some criminal justice interactions over the summer that have been put off, ignored, or quietly resolved, these issues need attention again. This is because by now, or soon to your mailbox, you will receive notice from your professional licensing board of their knowledge of your criminal charges.

Fifteen months ago, when the Nursing Board changed its regulations to require 30-day reporting of criminal charges (not conviction), the Board needed to begin the process of making sure its licensees were timely reporting criminal charges. While the Nursing Board may have already been a subscriber to JNET, it stepped up surveillance of every licensee. What does this mean?

The Nursing Board, and every other Board, became a daily recipients of JNET computer searches results of its licensees’ criminal interactions. JNET is now an integral part of every licensing Board’s investigatory process. The Boards are subscribers to JNET to receive daily notice of any positive hit of licensee’s criminal charges through a computer algorithm search of its queried database.  AND BELIEVE ME, THE BOARDS ARE GETTING NOTICES EVERY DAY.  IN TURN, THIS MEANS THAT THE BOARDS ARE ASSIGNING THE NEW CASES TO THE PHMP, VRP, AND/OR PROSECUTORS, TO INVESTIGATE AND IF NECESSARY, FILE ORDERS TO SHOW CAUSE, PETITIONS FOR MENTAL AND PHYSICAL EVALUATIONS, OR FILE DISCIPLINARY CHARGES.

What is JNET – From the JNET WEBSITE it reads

JNET is the Pennsylvania Justice Network. The Pennsylvania Justice Network (JNET) is an integrated, secure justice portal providing an online environment for authorized users and systems to access public safety and criminal justice information. JNET is the Commonwealth’s primary public safety integration service provider. JNET is a result of a collaborative effort of municipal, county, state, bordering states and federal justice agencies to build a secure integrated justice system. While each agency maintains ownership and control of their data, JNET allows authorized criminal justice and public safety professionals to securely and safely access information from multiple providers through one interface.

The Pennsylvania Justice Network (JNET) is the Commonwealth’s primary public safety and criminal justice information broker. JNET’s integrated justice portal provides a common online environment for authorized users to access public safety and criminal justice information. This critical information comes from various contributing municipal, county, state, and federal agencies. One-time data entry has improved the effectiveness of participating agencies, and has significantly improved data accuracy throughout the Commonwealth’s criminal justice system. Information entered into a records management system at the onset of an investigation can now follow the offender throughout their criminal justice tract. As offenders pass through the gateway of justice all the way to post-sentencing supervision, offender information flows in concert with the offender’s progression.

JNET allows users to subscribe to real-time event messages for comparison against offender watch-lists. When an event message is published, it is compared against watch-list records and the subscriber is automatically notified via email. When a significant event such as an arrest, disposition, want, warrant, state parole violation, PennDOT change of address or death occurs, users are alerted to check secure JNET for detailed event information.

The licensing boards know of any criminal charge, public drunkenness, disorderly conduct , DUI, drug charges, and more withing 24-48 hours of fingerprinting and processing in ANY STATE IN THE COUNTRY. Reporting your criminal interaction timely and completely is important. Failing to report is a separate disciplinary event from the criminal offense.

Responding to “Letters of Concern”, VRP enrollment letter, understanding what VRP, PNAP, PHMP case workers can and will do once you begin talking with them is pivotal to saving your license. Read my web site and other blogs. Attorneys handling criminal cases do not understand this professional licensing scheme, the evaluation consequences, and the prosecution attorney’s role is to protect the public .

Call me to discuss the letter in your hand, the petition sitting on your desk, or ask the questions you have after speaking to a VRP case worker who just told you to have your boss call them so you can keep working!!!!

%d bloggers like this: