Disclosing a Criminal Conviction on a Licensure Application — Part 2

In my last blog I wrote about real estate applicant who failed to disclose on his Real Estate Commission application a criminal conviction. Upon discovery the Commission revoked his license and the Commonwealth Court approved of the action. Today’s blog involves the exact opposite result for one of my physician clients.

On October 14, 2014 Dr. Christopher Elder, a Texas licensed physician, submitted an application to Pennsylvania’s Medical Board for a license to practice medicine and surgery. Unlike Hawes, Elder disclosed a 2010 federal conviction for aiding in abetting and conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. On April 2, 2015 the Pennsylvania Medical Board provisionally denied Elder’s application. The Board maintained the Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), authorized licensure denial because of Elder’s felony conviction. The Board also denied licensure, maintaining Elder lacked good moral character and did not possess the requisite training and experience.

Elder appealed the conditional denial of licensure. At the hearing before a the Hearing Officer Elder presented his credentials, training and experience, the facts of the criminal case, and character evidence. Consistent with prior Pennsylvania Supreme Court precedent, Elder maintained the criminal conviction was too remote for the Board to determine such affected his current ability to do his job lawfully. Elder’s mitigating evidence established his minor role in the criminal case and his rehabilitation since release from prison.

The Hearing Officer weighed Elder’s witness’ credibility and Elder’s mitigating evidence. He ruled in Elder’s favor, stating that while Elder’s criminal conduct demonstrated moral turpitude at the time of its commission, Elder presented persuasive evidence of his rehabilitation and present moral fitness to practice medicine. A period of probation was required to allow Elder the ability to secure appropriate supplemental educational classes for competency.

The Medical Board rejected the Hearing Officer’s proposed adjudication. The Board determined Elder’s explanation of his crime displayed a lack of remorse and acceptance of responsibility, that Elder still lacked the moral turpitude to be a doctor in Pennsylvania, and lacked the educational qualifications. Elder appealed, maintaining the Board’s decision was arbitrary and capricious in light of the competent, uncontested character evidence and age of the criminal act.

Commonwealth Court agreed with Elder. For the second time in as many months, the Court took a Pennsylvania licensing board out to the wood shed and gave it a stern whipping. The Court emphasized that Boards must look at the age of the crime as it related to current fitness. Remote, past dereliction, must be considered where an agency seeks to revoke a professional license on the basis of a criminal conviction. Secretary of Revenue v. John’s Vending Corporation, 453 Pa. 488, 309 A.2d 358 (1973).

The Court explained that “where the prior convictions do not in anyway reflect upon the [applicant’s] present ability to properly discharge the responsibilities required by the position, we hold that the convictions cannot provide a basis for the revocation of a … license.”

For Elder I determined he must present a clear explanation of the criminal enterprise accompanied by extensive mitigating evidence. The Board was dismissive of Elder’s mitigating evidence, stating that “[r]ather than to take responsibility and express remorse for his criminal misconduct during his testimony, [Elder] attempted to minimize his role.” Elder responded that such did not minimize his criminal conduct but explained his role in the underlying conspiracy, which the Board misconstrued as a collateral attack on his conviction. Elder directs the Court to Nguyen v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 53 A.3d 100 (Pa. Cmwlth. 2012).

The Commonwealth Court reviewed the entire record, the Federal Court sentencing transcript, the 8th Circuit Court of Appeals decision, and each witness’ testimony of Elder’s character and rehabilitation. The Court emphatically states:

The record does not support the Board’s assertion that Elder failed to express remorse or to take responsibility for his criminal conduct. At the hearing, Elder stated that he was “really” and “deeply” remorseful and he “absolutely accept[s]” responsibility.” He presented witnesses to attest to his remorse. The Board did not explain how this testimony was inadequate or what else Elder could have said. Elder’s attempt to place his criminal conduct into context and explain his role in the conspiracy does not demonstrate a lack of remorse or rehabilitation, as the Board presumed. The Board simply made a subjective determination that was contrary to that of the Hearing Examiner, who directly observed Elder and his witnesses, and accepted his evidence on remorse.

We hold that the Board erred and abused its discretion in reaching the conclusion that Elder does not have the present moral character required for a license. Elder’s crimes were committed over 14 years ago and were isolated to a single episode in his life. He has served his sentence. The Board erred by categorizing Elder’s evidence as not accepting responsibility when he was simply explaining his role in the conspiracy. The Board’s conclusion on Elder’s moral character cannot be reconciled with John’s Vending, 453 Pa. 488, 309 A.2d 358, or Nguyen, 53 A.3d 100. It did not take into account its own findings that Elder’s conduct since 2004 has been not only free of criminal conduct but dedicated to significant volunteer and public service activities.

In reversing the Board and instructing it to grant licensure, the Commonwealth Court determined the Medical Board sanction was a “manifest and flagrant abuse of discretion and purely an arbitrary execution of the agency’s duties or functions.” This is an amazing Commonwealth Court conclusion. Elder disclosed his federal criminal conviction for conspiracy to illegally distribute drugs. Elder set forth his long road to redemption, of rehabilitation, and his true character. The Court, a court of law, not the quasi-legal self-protecting Medical Board, looked at the facts – which mattered — and granted licensure.

Long hard preparation of this case won the day. My methodical approach to making a clear record of personal character recovery, redemption, and rehabilitation, could not be ignored. This cases reveals that proper presentation, preservation of the record, and coordination of witness is paramount to success. Call me to discuss your case.

Professional License Applications – Convictions – The Cover Up is Worse than the Crime

Professional license applications require potential licensees disclose prior criminal convictions or open criminal cases. Current licensees seeking an additional license must also answer these questions. This self reporting obligations establishes a base level of honesty, ethics, and moral turpitude Pennsylvania’s licensing boards expect from their licensees.

Board investigations of licensee’s criminal record (disclosed or not) takes time.  In May 2013 Bryan Hawks applied for a real estate sales person license. He stated he did not have a criminal record. However, in April 2004 Hawes plead guilty in federal court to two counts of mail fraud.  He was sentenced to jail and supervised release.
In 2017 Hawes’ false answer on the Real Estate Commission application was discovered. Real Estate Commission prosecutors filed an Order to Show Cause for discipline, a hearing took place, and on May 11, 2018 the the Commission revoked Hawes’ license concluding it was secured by fraud and deceit.  Hawes appealed to the Commonwealth court, claiming the Commission abused its discretion. Haws claimed the documents upon which the Real Estate Commission relied were not competent evidence.  Hawes produced a Pennsylvania State Police criminal background check showing no criminal record.
The Commonwealth court rejects Haws’ contention, determining Hawes’ $2 million dollars of fraud related restitution precluded Hawes from a reasonable basis to believe he did not possess a prior criminal record. Hawes’ obligation to truthfully and honestly answer the application’s criminal history inquiry is paramount to his fitness to hold the license. The Court explicitly emphasizes a conviction for federal mail fraud disqualifies Hawes from receiving a real estate license. The Court affirms the Real Estate Commission’s obligation of protecting the public and the integrity of the profession.
The court also concludes a federal criminal conviction obviously is a conviction subject to disclosure and Hawes’ failure to disclose such is knowing, intentional, and a fraudulent violation of section 604A of the Real Estate Commission Act.   The Act, 63 P.S. § 455.522(a), requires an potential realtors to include such information of the applicant as the Commission shall require. Truthful and complete responses in conjunction with an applicant swearing that the information is true and complete allows for license revocation based upon an applicant’s failure to disclose facts relevant towards consideration of his license.
As with all disciplinary actions, Hawes presented mitigation evidence regarding the performance of his duties as a realtor. Mitigation evidence included no complaints regarding his conduct as a licensee, his reputation in the community for being honest and trustworthy, and that he did not act in bad faith or with dishonesty in connection with any real estate license transaction.
Commonwealth Court rejected this mitigation evidence and affirms the Real Estate Commission’s decision because Hawes obtained his license by failing to disclose his prior felony conviction. Haws failure to disclose a felony conviction is a very serious offense,  akin to acting with dishonesty and a lack of moral turpitude. Hawes took away the Commission’s opportunity to protect the public and examine whether Hawes would have received a license in the first place.  Because Hawes’ omission in disclosing his federal felony conviction and jail sentence constituted a false representation of which could not reasonably believe as true, the evidence before the Real Estate Commission was appropriate and the Commission acted within the scope of its authority under the enabling rules and statutes.
The moral of this case is quite simple. Be truthful honest and provide full and complete disclosure of any prior criminal convictions or pending criminal cases on every license application. Failure to do so will result in the license revocation upon discovery by any licensing board. Please call to discuss your license application and proper disclosure and explanation of any prior criminal offenses.

Immediate Temporary Suspension — Are Temporary for 180 Days Only

Board prosecutors file a petition called an Immediate Temporary Suspension (“ITS”) petition that allows licensing boards to temporarily and immediately suspend licensees’ ability to practice their profession.  These petitions are typically reserved against licensee involved in a Drug Act investigation or sexual assault case.  The ITS suspension lasts, at the most, for 180 days.
The ITS petition must be followed up with a preliminary hearing to address the probable cause alleged in the petition.  A hearing must be scheduled and conducted within 30 days from the date of issuance of the suspension order. These preliminary hearings are limited to evidence on the issue of whether it is more likely than not a licensee engaged in any type of inappropriate criminal behavior supporting a temporary but emergent, suspension. Licensees are entitled to be present at the preliminary hearing, with or without an attorney, cross-examine witnesses, inspect evidence, call witnesses, and offer evidence and testimony.
If the hearing examiner does not find the prosecutor met their burden of proof, the licensee’s license and other authorizations to practice are immediately restored. If the prosecutor met their burden of proof, the temporary suspension remains in effect until vacated, but in no event longer than 180 days, unless otherwise ordered or agreed.
Orders for temporary suspension cases still require prosecutors to commence a separate disciplinary action seeking to suspend, revoke or otherwise restrict a licensee.  This separate action is filed through of a charging document known as an Order to Show Cause (“OSC”). In the OSC, facts are not limited to those alleged in the ITS petition.  The order to show cause is typically filed within the 180 day time, while the immediate temporary suspension is pending.
If a prosecutor does not file any disciplinary action after 180 days, the licensee is able to file a petition for the administrative reinstatement of the license. There is no hearing required and the board shall reinstate the licensee’s license. License reinstatement will issue even if there is a pending disciplinary action.

The post-180 day period is the time after which licenses can get their license back pending disciplinary action. I am currently handling several ITS cases with disciplinary action pending and not pending.  In one case disciplinary action was not filed for over a year. The licensee did not file a petition to reinstate her license and did not engage in the practice of her profession. This was a foolish mistake because absent disciplinary action, her license was subject to reinstatement without restriction after 180 days.  A little bit of research and hiring counsel would have properly notified the licensee of the lack of basis to continue her suspension.

License reinstatement is independent of any criminal prosecution or terms of a criminal sentence. Criminal prosecution can not include in a guilty plea agreement provisions that preclude a licensee from practicing your profession.  Call me to discuss your case.

Getting out of the PHMP

How do you get out of Pennsylvania’s Professional Health Monitoring Program (“PHMP”). The PHMP administers both the Voluntary Recovery Program “VRP” and the Disciplinary Monitoring Program (“DMU”)? As a licensed professional voluntarily enrolled in the PHMP – VRP – or forced into the DMU, you agreed to PHMP terms to keep working. You have been compliant for over three years. Now you think the program time is up!

But what you think is “compliant” may not be what your PHMP case worker thinks is compliant. Compliance does mean no positive drug tests and attendance and proper participation in all medical evaluations. Compliance includes AA or NA weekly meeting, daily telephone call-in, and/or random drug testing for at least three-years. Also, it is mandatory to provide three years or more of employer quarterly work evaluations.

Compliance also means alcohol and drug free for: 1) the first 3-6 months before the licensing board formally enters the Consent Agreement. This is the time period after signing the contract and filing out the personal data sheet when you accepted VRP DMU terms. Case workers do not tell you that it will take 3-6 months for a board to approve the contract. Also, they do not tell you to stop the drug testing after three years in the PHMP. They do not tell you when the three years clock starts to run.

There is one more requirement that is the most important part of compliance; paying all associated costs of the program. Many professionals ignore or forget to pay these expenses. Unless paid, the PHMP term will not end.

Recently I have fielded several calls from PHMP participants who have satisfied all of the above compliance requirements but did not finish paying 100% of the PHMP program costs. Each thought they were “done the program”. Licensees even receive eligibility letters from their PHMP case worker suggesting that they are poised to be satisfactorily dismissed in thirty days from the PHMP.

That thirty day period ran out with no case worker activity. Then, a positive alcohol test is claimed. Case workers then argued the licensee violated the program and requested a 12-18 month extension. These licensees were super angry.

Because a licensee did not pay the monetary expense, PHMP case workers do not file the termination petition with the board administrator. It is only this form, and only filed by the PHMP case worker, that will allow a board to terminate the licensee from the PHMP and reinstate the license to non-probationary status. Case workers continue to expect drug testing and abstinence. Licensees must remain compliant until the board discharges them from the program. This includes drug testing phone calls, testing, travel requirements, medical records, and employment restrictions.

An extension of a PHMP agreement after it natural conclusion, solely because a license failed to pay the costs is an abusive practice. It is an example of the PNAP Trap of which I write extensively. Don’t let PHMP PNAP/SARPH/PHP pencil pushing caseworkers harass you and your professional career merely because you didn’t pay program costs. After 3 to 4 years of continued employment, maintaining financial responsibility should be much easier. You should fit this expense in your budget and pay monthly PHMP costs so that when you are eligible for termination from the program, PHMP caseworkers can not subject you any more torture. Call me to discuss.

Petitions to Suspend a Professional License While on Probation

A Petition for Appropriate Relief (“PAR”) is a licensing board prosecution motion, presented to a licensing board committee, alleging an emergent need to suspend a licensee’s license.  PARs target licensees currently on PHMP disciplinary probation, whether a voluntary agreements and involuntary, licensing board order.  This is the TRAP I reference throughout my website, blogs, and PNAP Trap articles.

Licensees placed in the disciplinary monitoring unit (“DMU”) or the Voluntary Recovery Program (“VRP”) administered by the Professional Health Monitoring Program (“PHMP”) are subject to extensive board orders imposing mandatory drug or alcohol abstinence.  The bait and switch of provision in every PHMP agreement is that for a licensee to maintain or be re-licensed they agree to automatic license suspension if they violate the terms and conditions of PHMP probation.
The Petition for Appropriate Relief or PAR is the prosecutor’s mechanism advising the board of licensees’ probationary order violations. Immediate license suspension is the initial board remedy.  Thereafter, in order to secure licensure reinstatement, a licensee must file an answer to the PAR within 20 days.  If the licensee does not seek a hearing or continue to honor the terms and conditions of the probation, their license will be indefinitely suspension.

It is through the PAR  that board prosecutors apply a heavy-handed approach to compelling compliance with PHMP’s drug abstinence programs.  In agreeing to the DMU, VRP agreement administered through the PHMP agreement, the licensee consents to this automatic suspension process. Each licensee waves a pre-suspension due process hearing.
PHMP, PNAP, and PHP caseworkers can raise any number of issues in a PAR.  I have extensively written about the overbearing trap into which these programs invite licensees.  PHMP uses the carrot and stick approach to licensees who seek reinstatement of or continuance of licensure.  Missed or failed drug test is the number 1 basis for a PAR filing.  PHMP case worker allegations of positive drug tests are routinely wrong, false, mixed up.
Unfortunately, PHMP cases workers claim improper violations two years after licensee’s participation in the programs. Prosecutors, tasked with keeping their jobs and honoring their clients’ (PHMP – through their respective Board)  demands, follow instruction and file PARs for any number of suspicious reasons. Unfortunately, the challenges to address a PAR while a license is suspended are very limited. Typically, extensions agreements or time periods within the programs is the only result that is accepted in order to secure license reinstatement.  Call me to discuss your case.

Pennsylvania’s Professional License Disciplinary Environment

The Professional Compliance Office within BPOA’s Legal Office, receives an average of 16,000 complaints per year. The office reviews these complaints to establish whether the complaint alleges conduct which is a violation of a practice act, whether a Board has jurisdiction, and whether there is sufficient evidence to merit further investigation. Complaints can be initiated by consumers, licensees, board or commission members, board or commission staff, competitor complaints, other state licensing boards, media information, and law enforcement.

When a complaint requires investigation, the Department’s Bureau of Enforcement and Investigation (BEI) interviews witnesses and obtains documents and collects evidence related to the allegation made in the complaint. Subsequently, a prosecuting attorney determines whether to close the complaint or to initiate a disciplinary action before the administrative licensing board.

Prosecution for violations of standards of practice are initiated through the filing of an Order to Show Cause.  The prosecutor who proceeds with the disciplinary action then bears the burden of proving misconduct before the board. Licensees are provided due process and the board adjudicates the case to either dismiss or sanction. Depending on the severity of the conduct proven, sanctions can range from probation and discretionary suspension, to revocation or automatic suspension as required by statute. Licensees have the right to appeal any sanctions to the Commonwealth Court for review.

Sanctions include: revocations, suspensions, stayed suspensions, voluntary surrenders, probations, reprimands, civil penalties. As of May 16, 2018, there had been 2,494 sanctions issued in fiscal year 2017-2018. This is the highest on record.  Nursing Board sanctions doubled between 2012 and 2018, from 436 to 840. Nursing Board actions account for 31% of all disciplinary cases.   Medical and Osteopathic Board sanctions remained the same at 190 and doubled from 27 to 46, respectively.  Pharmacy and Social Workers Board actions have both dropped by 50%.

Each board and commission is authorized to take disciplinary action based on the commission of a crime. Among these disciplinary actions taken:

• 29 % resulted in suspension;

• 17% resulted in stayed suspension (usually with probationary terms);

 

• 13.5% resulted in automatic suspension due to the Drug Act;

• 12.6% resulted in voluntary surrender of license;

• 12% resulted in revocation;

• 6.5% resulted in reprimands;

• 4.7% resulted in immediate temporary suspensions based on danger to health/safety of public;

• The remaining roughly 5% resulted in probation, a civil penalty (regular or Act 48), a stayed revocation, or other sanction such as remedial education, etc.

Call me to discuss your case.

A Constitutional Right to Work

On October 4, 2018 Commonwealth Court issued a significant decision in King v. BPOA discussing the Criminal History Record Information Act (“CHRIA”).This statute gives licensing boards a discretionary authority to discipline, suspend, revoke, grant, or deny licensure based upon a criminal conviction related to the practice of a license. CHRIA’s general purpose, however, is to control the collection, maintenance, dissemination or receive a criminal history record information.

Recently,licensing boards use CHRIA to discipline licensees for criminal conduct NOT related to the practice of license. King reiterates CHRIA does not provide standards for Boards to exercise their discretion. Boards must look at their specific and more relevant enabling statutes, the specific board licensing laws. CHRIA does not authorize discipline for a criminal convictions not related to the practice of the profession.

This is why in CHRIA disciplinary cases, those solely based upon a criminal conviction, licensee’s mitigation and rehabilitation evidence is critical. In 1998 King was convicted of indecent assault. He was sentenced to 5-10 years in jail, 10 years probation and supervision under Megan’s law. After parole and King satisfied all terms of his sentence, did not violate probation or parole, properly secured his barber license, and practiced his profession in an unblemished manner. He properly notified the Board of his conviction.

The Barber Board, after a hearing, revoked King’s license based upon the misdemeanor conviction and probationary sentences. King appealed. Commonwealth Court ruled the Barber Board abuses its discretion in revoking the license based upon CHRIA. As the licensee did not violate the Barber licensing statute, there was no other basis to discipline him.

This case is significant because Commonwealth Court relies upon Article 1, Section 1 of Pennsylvania’s Constitution. This Article guarantees Pennsylvania residents the right to engage in any of the occupations of life. By referencing a state constitutional guarantee the court effectively holds this rights outweighs CHRIA’s general purpose, non-mandatory discretionary license disciplinary.

King emphasizes Boards’ general statements of public safety concerns of a future occurrence is not proper evidence upon which it may base a discretionary disciplinary action. The Board abuses its description when it revokes licensure based on supposition that the licensee could potentially be an instructor for female students under the age of 18 or have contact with minor clients. Such speculative reasoning is flawed.

King rejects Board member perceptions that criminal convictions scar licensees’ character forever, with no possibility of rehabilitation. King instructs licensing Board to consider and properly allow for rehabilitation. King follows a line of 2018 Commonwealth Court cases instructing Pennsylvania licensing Boards that CHRIA is a not a proper basis to suspend or revoke a constitutionally secured property right. https://www.phila-criminal-lawyer.com/blog/2018/05/another-appeals-court-reverses-a-pennsylvania-licensing-board-disciplinary-decision.shtml

Fully employment and hard work is the rule. This is in contrast to many recent cases of which I have written. Commonwealth court is telling the boards as a matter of policy, “let these people work”. Rehabilitation is part and parcel with employment, which is part and parcel with members being productive people in society.

Call me to discuss your case.

Act 6 of 2018 — All Licensees Must Report Criminal or Disciplinary Charges with in 30 Days

Act 6 of 2018 is a new law in 2018. It represents a fundamental shift in Pennsylvania licensees’ duty to report criminal charges and disciplinary actions filed against them in any jurisdiction in the entire country. The General Assembly passed the new law in anticipation of medical marijuana. The enforcement environment is getting much stricter in Pennsylvania. Every Pennsylvania professional licensee must report the misdemeanor and felony criminal charges to their respective board within 30 days receipt of criminal charges. It is a disciplinary offense for any licensee to not report within 30 days of receipt of criminal charges.

Act 6 of 2018 specifically authorizes the The Bureau of Professional and Occupational Affairs (“BPOA”) to subscribe to JNET. My prior blogs discuss JNET, the criminal reporting database network to which the Nursing Board began subscribing.   JNET now levels the reporting responsibility and Boards learning of its licensees’ criminal conduct.  There was a significant difference between nurses and doctors, pharmacist, realtors, cosmetologists, and funeral directors (and all others) in their criminal charge reporting responsibilities. All licensees are now treated equal. Licensees can not wait to report — thinking at a preliminary hearing charges will be reduced to a summary offense, for which there is a guilty plea. The charging is the reportable event, not the end result.

This all began in 2014.  In late 2014 the General Assembly modified Pennsylvania professional licensing regulations to require nurses to report criminal charges, not conviction, within 30 day days of charges being filing. The BPOA utilized the last several years to create a new enforcement infrastructure and mechanisms to insure disciplinary action is initiated against all nurses who either reported or they learned of criminal conduct or did not report at all.  The reporting responsibility is in addition to reporting criminal charges upon licensee renewal.

Through JNET the Nursing Board became familiar with the criminal reporting subscription service and its information power. Obviously the Board created a flow chart starting at receipt of criminal information through to disciplinary charge initiation for failure to report. The Nursing Board worked out the differences between JNET and nurse reporting of charges. Steps between failure to report, Board investigation, document review, and charges have also been ironed out.

Apparently BPOA had a significantly positive experience with JNET’s notification process, allowing it to better enforce nurses’ reporting responsibility. Expanding 30-day reporting of criminal activity to all other 25 licensing boards will inundate the BPOA with information regarding licensees’ criminal behavior.  This will produce some delays in failure to report and initiation of criminal charges.

The Act also gives the BPOA prosecutor not just the authority but the command to initiate within 30 days an emergent suspension if a licensee’s criminal acts reveal a clear and present danger to the public. The licensee is afforded a preliminary hearing to contest the automatic license suspension. This “automatic suspension process” is not new.

All licensees were spared the obligation to report summary Drug Act violations. By this I mean summary charges for disorderly conduct written by cops giving a break to licensees caught with illegal marijuana. This reporting requirement was in the original versions of the bill but stricken from the final version. The Act includes authority for every Board to institute a schedule of fines for escalating number of failure to report charges.

Act 6 includes a very limited right of expungement. This is only for disciplinary action for failure to comply with continued education requirements. The law explicitly precludes any expungement of any disciplinary order by any board for any other offense. Aside from capping Board fines to $10,000, BPOA can enter a judgment against the licensee if the fine is not paid in 5 years.

Call me to discuss your case.

Felony Convictions and License Reinstatement

A licensed professional convicted of a felony drug offense is a major impediment to securing licensure in another jurisdiction or seeking reinstatement once your professional license is disciplined for that conviction. In many license reinstatement cases, applicants are so in need of their license that they hire the wrong attorney, waste money on filing reinstatement petitions prior to the expiration of the license preclusion period, or simply give up on getting their license back.
In a 2017 Pennsylvania Nursing Board Final Adjudication and Order the nurse was convicted in 2006 in Delaware of practicing with an expired nursing license.  In 2015 she sought reinstatement of her Pennsylvania nursing license.  Because she was convicted of a felony involving the practice or professional in Delaware, the convicted offense and license discipline was applicable under the Pennsylvania Nursing Act to her Pennsylvania license.
After 8 years, she hired the wrong attorney to seek reinstatement of her Pennsylvania nursing license. Her attorney thought reinstatement was was possible based upon mitigation and rehabilitation evidence.  She was wrong.
Pennsylvania’s Professional Nursing Law, section 6(c), states that the “Board may not issue a license or [graduate training certificate] to an applicant who has been convicted or a felony relating to a controlled substance law (in any jurisdiction) unless at least 10 years has elapsed from the date of conviction.   It does not matter how much rehabilitation the applicant has undergone.  If the application for licensure is not outside the ten years, there is no legal ability for the Board to consider the license application.
This denial of licensure application case reveals that counsel for the applicant did not know the law.  Focusing on rehabilitation rather than eligibility, the applicant’s attorney wasted his client’s money on his premature application, hearing, and appeal time.
Licensing attorneys must know what evidence is admissible in the relaxed administrative hearing process under GRAPP (General Rules of Administrative Practice and Procedure) 2 PA.C.S. § 504.  Knowing to what exhibits or evidence to object and facts an attorney should stipulate will make or break a licensee’s case.  The uninformed general practitioner will not know the importance or admissibility of certain evidence.  They will waste time and legal fee money fighting evidence that is admissible in evidence for the Board to consider or will move into evidence evidence that the Board should not consider.
More importantly, the uninformed practitioner will accept a case simply to pay their bills.  The uniformed attorney will take cases that have no merit, can not be won, or will lose a case that is easily won.  Desperate licensed professionals who are waiting out a discipline and seek reinstatement will pay an attorney who sounds good but can not discern the attorney’s lack of knowledge of their case.
Call me for confidence in understanding your case.  I will give you a clear understanding of the problem, counsel you about the risks and rewards of fighting your case.  I will not take your case, or fight for your license if you do not want me to, can not afford it, or there is no basis to seek reinstatement.
Fighting a disciplinary action – an Order to Show Cause -, contesting the VRP or DMU letters must be done with competent informed counsel. Never concede an impairment. Never admit an addiction without formal legal counseling on the affect of such on your license. Never plead guilty to any criminal offense without consultation with an experienced license attorney so you understand the collateral consequences of the criminal conviction, ARD, or no contest plea.  Please read my blogs and website to understand how I can help you and protect your license.

Medical Marijuana and the Pitfalls for the Professional

The pitfalls of medical marijuana for the professional are more evident every day. Several weeks ago I wrote a blog on the challenges facing licensees who seek a medical marijuana card due to a medical condition. Prescription Drug History   In another blog I wrote about the complexities facing medical professionals who seek to become medical marijuana authorized prescribers.

 

In Pot Doc Article the Philadelphia Inquirer reveals Pennsylvania’s Medical Board, Health Department, FBI, and DEA investigatory practices in this field.  If you are a medical professional, please read this article.  I represented a peripheral, part time doctor moon lighting for Dr. Nikparavarfard.

Doctors working in a medical practice that includes a “Pot Doc“ – doctors that are authorized to write prescriptions for medical marijuana – are subjecting themselves to unnecessary oversight and inquiry.  When a  “Pot Doc” exposes himself to both criminal and licensing  investigations, they expose all nurses or doctors employed by that practice.  Drug Act violations are routinely found and criminal charges filed!.

The FBI and DEA’s investigation of Dr. Nikparvarfard’s Scranton office – the Pot Doc – necessarily also included  my client’s prescribing patterns.  An invasive, long running investigation turned to her simply because the police were investigating that practice and needed leverage against Dr. Nikparvarfard.  Experienced and accomplished undercover FBI, DEA, Health Department agents then ensnared my client.  Again, only because they were looking at Dr. Nik’s practice.

My client was not the prescribing “Pot Doc.”  However, the overarching Pot Doc investigation expanded to any potential criminal activity discovered within the medical practice.  But for my client working for the Pot doc and his medical practice, my client would not have been under surveillance. Unfortunately she was.

Once my client became known to FBI, her prescription and Medicaid/Medicare billing patterns were easily examined, patients contacted, and medical procedures evaluated.  Undercover patients were sent to the practice.  All because of the attention brought on the practice by Pot Doc Nikparvarfard.

One bad apple spoils the pie; two or three bad apples subject professionals to jail.  These types of investigations render medical professionals (nurses and doctors) unemployed and potentially unemployable.  Thereafter, professionals are the target of multiple investigations by medical boards, DEA,  Health Departments, and potentially the U.S. Department of justice.  But for my client’s employment with a Pot Doc, she would not have come under any surveillance.

This case is but one example of many to come.  Overarching public safety concerns, opiates in the news, and an aggressive enforcement environment of a new regulatory scheme create huge risks for both Pot Docs and those doctors and nurses who work with them.

Please call me to discuss

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