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.

PNAP — A New Scare Tactic

A new client recently contacted me regarding a puzzling PHMP/VRP letter he received. After a first offense DUI, the VRP contacted him and scared him to attend an initial evaluation.  The Initial Evaluation    As I have said many times, the PHMP’s “Letter of Concern” is a lie. The PHMP is not concerned. The Letter of Concern.

 

After attending the evaluation, the PHMP caseworker began aggressively pushing this nurse about what to do next. It should have been nothing. It was not.

The VRP sent a second letter offering more care and treatment because “the drug and alcohol evaluator was unable to rule out that you suffer from a drug or alcohol addiction or impairment…” This means the evaluator did not diagnose my client as suffering from any condition that impairs his ability to practice his profession safely. The PHMP/VRP file should be closed after this opinion was rendered. This is a false diagnosis.  “Unable to rule out” is no formal diagnisis of a condition that renders the nurse unsafe. PNAP Scare Tactics

 

It is a new tactic in the PHMP/VRP trap process. The letter identifies three options:, 1) go to an extended inpatient evaluation, 2) go to a second evaluation after 90 continuous days of outpatient treatment, or 3) reject both and PNAP will close the file and prosecution review will commence.  This is PHMP/PNAP/VRP engaging in expert shopping.

As with the first evaluation, the VRP interested professional must pay for the all treatment and associated evaluations. This is PNAP pushing licensees into evaluations once, twice, or as many times as they need to get an opinion PNAP will accept. This is demoralizing to you the professional who is freaking out.  This is a con by the PHMP/PNAP caseworker.  Do not fall for this trick.

The letter proceeds to state: “In order to undergo the extended outpatient evaluation, please comply with the attached document summarizing the terms and conditions of the extended evaluation. If you successfully complete the extended evaluation thereby allowing us to document that you do not suffer from a substance use disorder, your VRP file will be closed and we will notify the Department of State’s Legal Division that we have determined you do not meet criteria for a substance use disorder. ”

It is not the licensee’s burden to prove they do not suffer from a disorder. It is the Board’s burden to prove the licensee does suffer from a condition that renders them unable to practice. The case law rejects this PHMP legal position.

The letter continues, laying out the various terms and conditions a nurse/medical professional licensee would have to comply while going through this process:

To pursue a residential evaluation, please contact one of the following facilities to make arrangements to be admitted within three weeks of the date of this letter: (1) Marworth 800-442- 7722, (2) Caron Treatment Center 800-854-6023, or (3) The Farley Center 800-582-6066. If the results of the intensive evaluation determine you do not suffer from a substance use disorder, your VRP file will be closed and we will report the findings to the Legal Division. Should the intensive evaluation establish that you meet criteria for a substance use disorder, you will be offered VRP enrollment.

These are three captive PHMP evaluator/treatment facilities.  There is no way either of these locations will not find an impairment.  They want your money, your insurance coverage, PHMP’s continued case referrals.

Call me if you get this letter.

DUI — Driving After Inhaling — And Expert Testimony

Advanced Roadside Impaired Driving Enforcement (A.R.I.D.E.) is the forefront of drunk driving enforcement in the age of legal and medical marijuana. State Troopers are trained to identify impaired drivers by substances other than alcohol. These officers receive training on Standard Field Sobriety (“FST”) and other field tests, and eye tests involving the convergence, pupil size, and reaction to light as well as methods of determining ingestion of the substance and classification of drugs (illegal and legal) by the type of impairment.

Typically these courses are 16 hours and “train” officers about drugs in the human body, heighten their observation of suspects eyes, and instruct them on seven drug categories and the effects of drug combinations.

Courts are pushing back against the junk science these courses to teach police officers. Courts are limitting the admissibility of field sobriety tests and officer conclusions of impairment based upon drivers “passing” or “failing” a FST.

Commonwealth v. Gerhardt, 477 Mass. 775 (2017) is the first case in the nation to address this issue. In this case the court considered the admissibility of FSTs where a police officer suspects that a driver has been operating under the influence of marijuana. The court observed that the three standard FSTs — the “horizontal gaze nystagmus test,” the “walk and turn test” and the “one leg stand test” — were created to assess motorists suspected of operating under the influence of alcohol. The court found that the tests were developed specifically to measure alcohol consumption as there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.

By contrast, the court noted in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.

The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. Rather, the court concludes that, to the extent that they are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment.

The introduction in evidence of the officer’s observations of what will be described as “roadside assessments” shall be without any statement as to whether the driver’s performance would have been deemed a “pass” or a “fail,” or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.

This decision comports with the my prior blogs on drug recognition expert testimony and the lack of scientific basis for such. Please call me to discuss your legal matter.