A Major Constitutional Decision from the Pennsylvania Supreme Court

In 2011 the General Assembly enacted, consistent with federal mandate, Pennsylvania’s latest version of Megan’s Law.  Entitled SORNA or the Sex Offender Registration and Notification Act, the law became effective on December 12, 2012.

SORNA, 42 Pa.C.S. §§ 9799.10 to 9799.41, classifies offenders and their offenses into three tiers, 42 Pa.C.S. §9799.14. Those convicted of Tier I offenses are subject to registration for a period of 15 years and are required to verify their registration information and be photographed, in person at an approved registration site, annually, 42 Pa.C.S. § 9799.15(a)(1), (e)(1). Those convicted of Tier II offenses are subject to registration for a period of 25 years and are required to verify their registration information and be photographed, in person at an approved registration site, semi-annually, § 9799.15(a)(2), (e)(2).  This registration scheme greatly extended the registration responsibilities for defendants whose criminal acts occurred prior to December 2012.

I have written several blogs on this issue: SORNA’s retroactive registration requirement for those previously convicted of crimes enumerated within the law purview.  The law specifically states that any individual under supervision (probation, parole, or prison – but not registration supervision) on December 12, 2012 was subject to reclassification of their registration scheme.  The reclassification effectively altered every supervised defendant’s SORNA’s registration requirements from 10 years to 15, 25 or life and changed the annual to quarterly registrations.

My blogs focused on the Pennsylvania State Police’s effort to reclassify offenders who were not under supervision, but were still registering consistent with their guilty plea or sentencing scheme.  In these cases the defendants served their sentence, had complied with their guilty plea agreement, but the State Police sought to reclassify and extent their registration requirements.  The Supreme and Superior court decisions in these cases (Nase, Haisworth and Martinez) dealt with these cases, declaring the State Police’s unilateral reclassification of non-supervised defendant a breach of the guilty plea agreement.

Various state court judges not willing to terminate a SORNA registration requirement found every way possible to deny these defendants post-conviction non-PCRA relief.

On July 19, 2017 the Pennsylvania Supreme Court issued the decision in Commonwealth v. Muniz, 2017 Pa Lexis 1682.  The facts are as follows: On February 7, 2007, after a bench trial in Cumberland County, appellant was convicted of two counts of indecent assault arising out of an incident where he touched the breasts of his girlfriend’s twelve-year old daughter.  Sentencing was scheduled for May 8, 2007, at which time appellant would have been ordered to register as a sex offender with the Pennsylvania State Police for a period of ten years pursuant to then-effective Megan’s Law III. See 42 Pa.C.S. §9795.1 (expired).  However, appellant failed to appear for his sentencing hearing and absconded until he was apprehended on unrelated charges in Rhode Island in September 2014. N.T., 10/14/14 at 2. During his absence, the General Assembly [*3] had replaced Megan’s Law III with SORNA. Under SORNA, persons convicted of indecent assault of a person less than thirteen years of age, 18 Pa.C.S. §3126(a)(7), are categorized as Tier III offenders and are required to register as sex offenders for the remainder of their lives.

Appellant Muniz was sentenced to four to fourteen months’ imprisonment and ordered to comply with lifetime registration requirements under SORNA. Appellant filed a post-sentence motion seeking application of the ten-year registration period under Megan’s Law III, which was the law in place at the time of his offense and conviction, instead of lifetime registration under SORNA. The trial court denied Muniz’ motion and he appealed to the Superior Court, claiming retroactive application of SORNA violates the ex post facto clauses of the United States and Pennsylvania Constitutions, and the reputation clause of the Pennsylvania Constitution.

Importantly, the court found that Muniz’ seven year absence from the Commonwealth is of no moment. SORNA applies retroactively to any individual serving a sentence for a sexual offense or any individual who had not completed their registration period under prior registration statutes as of SORNA’s effective date of December 20, 2012. 42 Pa.C.S. §9799.13. Had Muniz been sentenced in 2007 and subject to registration under Megan’s Law III, he would not have completed his ten-year registration period when SORNA became effective and thus his ten-year registration period would have been converted to a term of lifetime registration.  This foot note number 3 applies to every case for which pre-December 2012 defendants may now seek to contest their post-sentencing reclassification!

Appellant filed a petition for allowance of appeal raising two questions regarding SORNA’s “sexual offenses and tier system” provisions set forth at 42 Pa.C.S. §9799.14:
1) Does applying [42 Pa.C.S. § 9799.14]  retroactively violate the Federal Constitution?
2) Does applying [42 Pa.C.S. § 9799.14] retroactively violate the Pennsylvania
Constitution?

The Pennsylvania Supreme Court said YES to both questions:   The retroactive application of SORNA’s new harsh, punitive shaming registration scheme to defendants whose sex related crimes were committed prior to December 12, 2012 is unconstitutional.   The Court rules that SORNA increases punishment for conduct which occurred before its enactment and such retroactive application violates both federal and state constitutional bans on ex post facto laws; in doing so, the court finds that the Pennsylvania Constitution provides greater protection than the United States Constitution, that SORNA is therefore unconstitutional as applied to someone like Muniz whose conviction predated its enactment. The Pennsylvania State Police can not now lawfully retroactive apply SORNA and reclassify defendants (under supervision or not) for criminal conduct occurring prior to December 2012.  This is huge.

Call me to discuss your case.

Northampton County’s 1861 Court Room!!

Finding the diamond in the rough. That describes my recent drive to the Northampton County Courthouse. As my law practice takes me from the Philadelphia’s suburban counties to northeastern Pennsylvania, I routinely travel on the Pennsylvania Turnpike and its Northeast extension.
The drive this July week was rough. The weather forecast proved accurate; rain and fog through the Lehigh Valley. It was raining so hard, I missed my exit off Rt 476E at Rt 22 E. I drove an additional 20 miles each direction, turning around in Jim Thorpe. (I love the Carbon County Courthouse – see my other blogs – but I was not going there today.)
 I was uncharacteristically late, arriving at 9:25 am for a 9:00 am hearing.  I was otherwise safe.  The judge was extremely gracious and polite. The case was handled quickly.  Opposing counsel – a local assistant district attorney – offered a tour of the courthouse as I expressed my appreciation for our hearing taking place in the old courthouse, courtroom 3, as compared to the new 2004 building.
The county website states, “The original court house was built in  1764. Nearly a century later and after the courthouse had experienced a number of historical events, which included being used as a barracks by Revolutionary troops, a group of citizens petitioned for a new County Courthouse at a different location. On August 23, 1860, the County Commissioners decided to accept land offered at a price of $1.00 that was located several blocks west of the original facility.   A new brick structure was later built on a steep hill at a cost of $53,000. The first term of court was held in the new facility on June 18, 1861.  Since then, two additional wings were constructed to accommodate the growth of Northampton County and satisfy the judicial needs of the expanded population.  The second part of the courthouse was built in 1978 and the third in 2004. “
I was interested in the 1861 building and court room 1.  Finished at the out set of the Civil War.   Wow!! A majestic legal theater, refurbished in 1978 to match the import to the community when the courthouse was built. Original woodwork, plaster, and paint are renewed. County Commissioners rightfully chose to not clutter the court room with of a phalanx of computer cables, microphones, and other modern day accoutrements that clutter some other county courtrooms in which I practice.
The pictures below reveal the courtroom’s grand entrance, judicial bench, and the jury box of the times. The remarkable woodwork and attention to detail immediately reveals itself. The artisans of Pennsylvania’s counties knew their work would be on display at every important and public event of the times. The honor and respect they earned working for their local government on the most important building in the county.

Call a Lawyer, Not the Licensing Board, When Contacted by Board Counsel or Investigators

My administrative law practice takes me before many of Pennsylvania’s licensing boards and in hearings that address a variety of disciplinary actions.  It is during Pennsylvania’s professional licensing boards’ bimonthly meetings that disciplinary matters are commenced, reviewed, or finalized.  This is why after a given board’s monthly meeting I typically receive a wave of calls from new clients, mail that initiates disciplinary action in pending cases, or final decisions in cases.

Potential disciplinary actions a board may commence include: 1) reciprocal disciplinary actions; 2) emergency petitions to immediately take a license; 3) objections to license applications; 4)  approval of different consent agreements; 5) approval or rejection of hearing officer’s proposed adjudications; and 6) reviewing cases sent back from the Commonwealth Court for issuance of revised disciplinary action. Also, several boards have subcommittees that approve probable cause petitions compelling licensees to undergo mental and physical of evaluations.

After bimonthly board meetings I receive calls from both current or potential clients inquiring “What I should do? Who should I talk to?  or What information should be disclosed?   Many callers disclose prior conversations with board counsel, investigators, PHMP assessors, or other board representatives. I cringe when I hear this.

 

Board representatives, prosecutors, administrators, and/or medical professionals do not represent the licensee. These people are tasked with enforcing board regulations. They are tasked with complying with each and every administrative procedural requirement (of which the licensee has no idea). They are tasked with securing information against the licensee who is potentially, or actually, subject to disciplinary action. These people do not look out for the best interest of the licensee.  DO NOT TALK TO THESE PEOPLE ABOUT YOUR CASE, FACTS, OR MEDICAL CONDITIONS.  THEY WRITE EVERYTHING DOWN.

 

Board administrators and PHMP office staff are not sophisticated licensed professionals. They are unfamiliar with the actual medical issues, legal issues, or licensing process. They merely perform administrative functions. They lack any authority to adjust, regulate, or modify any correspondence.  Relying upon statements from these administrative level workers is frustrating and leads to incorrect practices.

 

I have heard on many occasions board clerical staff and social workers advise licensees and/or license applicants to cooperate – give statements or do other inaccurate suggestions – that are not in the licensees best interest.  Administrative workers routinely do not recommend hiring counsel to secure a better, more complete, or correct legal advice on how to respond to the legal correspondence  just received in the mail.

 

That is why I say do not contact these boards, rely upon what any administrator says, or even hope that they give you correct advice. Call an attorney and secure proper legal advice.  The best analogy I can give is: Do you call a doctor’s office and follow medical advice dispensed by the phone receptionist or want to talk to RN, LPN, or M.D.?  The obvious answer is no.  So why would you do that when calling a licensing board about your professional license you utilize every day?

 

Please call me to discuss the recent board ordered disciplinary correspondence you just received!

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.

Proposed Pennsylvania Law for All Licensee’s Criminal Charge Reporting Responsibilities

In February several Pennsylvania state senators introduced Senate Bill number 354 of 2017. This bill drastically changes licensees reporting responsibilities once they are charged with a crime. Currently, most licensees (Except nurses) must report a criminal charge only upon conviction. Senate Bill 354 as currently written specifically states:

Section 2.1.  Reporting of sanctions and criminal proceedings.

(a)  Duty.–An individual who holds a license, certificate or registration issued by the Bureau of Professional and Occupational Affairs shall, as a condition of licensure, certification or registration, do all of the following:

(1)  Report to the appropriate licensing board or licensing commission a disciplinary action taken against the licensee, certificate holder or registrant by a licensing agency of another jurisdiction.

(2)  Report to the appropriate licensing board or licensing commission an arrest, indictment or conviction of the licensee, certificate holder or registrant.

(b)  Time.–A report under subsection (a) shall be made as follows:

(1)  Within 30 days of the imposition of the sanction described under subsection (a)(1).

(2)  Except as set forth in paragraph (3), within 30 days of the earlier of:

(i)  an arrest under subsection (a)(2); or

(ii)  an indictment under subsection (a)(2).; or

(iii)  a conviction under subsection (a)(2).

(3)  In the case of a criminal action under subsection (a)(2) that is initiated prior to the effective date of this paragraph, within 30 days from the later of:

(i)  the date of conviction; or

(ii)  the effective date of this paragraph.

If a licensee does not report a new arrest within 30 days, the licensee is subject to additional disciplinary action.

All Pennsylvania licensees may soon become subject to disciplinary action as a result of accused, not convicted, criminal conduct.  This is a much different from the current scenario of disciplinary action upon conviction. The remaining subsection identified below is consistent with current procedural due process rights to a licensee whose license is subject to an immediate clear and present danger emergent suspension.

(a)  Temporary suspension.–A licensing board or licensing commission may temporarily suspend a license, certificate or registration under circumstances as determined by the board or commission to be an immediate and clear danger to the public health and safety. The board or commission shall issue an order to that effect without a hearing, but upon due notice, to the licensee or, certificate holder or registrant concerned at his last known address, which shall include a written statement of all allegations against the licensee or, certificate holder or registrant. After issuing the order, the board or commission shall commence formal action to suspend, revoke or restrict the license or, certificate or registration of the person concerned as otherwise provided for by law. All actions shall be taken promptly and without delay.

(b)  Hearing.–Within 30 days following the issuance of an order temporarily suspending a license, certificate or registration, the licensing board or licensing commission shall conduct or cause to be conducted a preliminary hearing to determine whether there is a prima facie case supporting the suspension. The licensee or, certificate holder or registrant whose license or, certificate or registration has been temporarily suspended may be present at the preliminary hearing and may be represented by counsel, cross-examine witnesses, inspect physical evidence, call witnesses, offer evidence and testimony and make a record of the proceedings. If it is determined that there is not a prima facie case, the suspended license, certificate or registration shall be immediately restored. The temporary suspension shall remain in effect until vacated by the board or commission, but in no event longer than 180 days.

(c)  Automatic suspension.–A license or, certificate or registration issued by a licensing board or licensing commission shall automatically be suspended upon:

(1)  the legal commitment to an institution of a licensee or, certificate holder or registrant because of mental incompetency for any cause upon filing with the board or commission a certified copy of the commitment; or

(2)  conviction of a felony under the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or conviction of an offense under the laws of another jurisdiction which, if committed in this Commonwealth, would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act.

(d)  Stay.–Automatic suspension under subsection (c) shall not be stayed pending an appeal of a conviction.

(e)  Restoration.–Restoration of a license or, certificate or registration shall be made as provided by law in the case of revocation or suspension of the license or, certificate or registration.

New to the licensing and regulatory scheme for every licensee is the ability of a licensing board to automatically suspend a license if the licensee is committed to a mental health facility for any reason or a conviction under the Drug Act. Restoration of the licensees license suspended under Senate Bill 354 shall be consistent with any other procedural due process rights.
Please call me to discuss 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.

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

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

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

  • following offenses in this Commonwealth or another state:
    • (i)  18 Pa.C.S. Ch. 25 (relating to criminal homicide);
    • (iii)  18 Pa.C.S. Ch. 31 (relating to sexual offenses).
    • (iv)  A violation of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act.
Physicians’ limited reporting responsibilities means arrests for following offenses does not trigger reporting to the state: domestic violence offenses, DUI’s offenses, theft offenses, or a string of federal related non-drug criminal arrest offenses.   Physicians do have to report arrests alleging a sex offense, homicide, aggravated assault, and a violation under the Drug Act.
Understanding what offenses are Drug Act offenses, not just possession or selling drugs, under The Act that are important.  Drug Act charges include patient record keeping, charting issues, and properly recording and dispensing medications.  Section 780-111 of the Drug Act focuses  on professional prescription, administration, and dispensing of drugs.  Here, the Act states:
  • (a)  Except when dispensed or administered directly to the patient by a practitioner or his authorized agent, other than a pharmacist, to an ultimate user, no controlled substance in Schedule II, may be dispensed without the written prescription of a practitioner, except in emergency situations, as prescribed by the secretary by regulation. No prescription for a controlled substance in Schedule II may be refilled.
  • (b)  Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in Schedule III or IV, may be dispensed without a written or oral prescription. Such prescriptions shall not be filled or refilled more than six months after the date thereof or be refilled more than five times after the date of the prescription unless renewed by the practitioner.
  • (c)  No controlled substance in Schedule V may be distributed or dispensed for other than a medicinal purpose.
  • (d)  A practitioner may prescribe, administer, or dispense a controlled substance or other drug or device only (i) in good faith in the course of his professional practice, (ii) within the scope of the patient relationship, and (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession. A practitioner may cause a controlled substance, other drug or device or drug to be administered by a professional assistant under his direction and supervision.
  • (d.1)  A practitioner shall not prescribe, administer or dispense any anabolic steroid for the purpose of enhancing a person’s performance in an exercise, sport or game. A practitioner may not prescribe, administer or dispense any anabolic steroid for the purpose of hormonal manipulation intended to increase muscle mass, strength or weight except when medically necessary.
  • (e)  A veterinarian may prescribe, administer, or dispense a controlled substance, other drug or device only (i) in good faith in the course of his professional practice, and (ii) not for use by a human being. He may cause a controlled substance, other drug or device to be administered by a professional assistant under his direction and supervision.
  • (f)  Any drug or device dispensed by a pharmacist pursuant to a prescription order shall bear a label showing (i) the name and address of the pharmacy and any registration number obtained pursuant to any applicable Federal laws, (ii) the name of the patient, or, if the patient is an animal, the name of the owner of the animal and the species of the animal, (iii) the name of the practitioner by whom the prescription order was written, and (iv) the serial number and date of filing of the prescription order. In addition, the following statement shall be required on the label of a controlled substance: “Transfer of this drug to anyone other than the patient for whom it was prescribed is illegal.”

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

  • (a)  Every person who sells or otherwise distributes controlled substances, shall keep records of all purchases or other receipt and sales or other distribution of such substances for two years from the date of purchase or sale. Such records shall include the name and address of the person from whom purchased or otherwise received or to whom sold or otherwise distributed, the date of purchase or receipt or sale or distribution, and the quantity involved: Provided, however, That this subsection shall not apply to a practitioner who dispenses controlled substances to his patients, unless the practitioner is regularly engaged in charging his patients, whether separately or together with charges for other professional services, for substances so dispensed.
  • (b)  Every practitioner licensed by law to administer, dispense or distribute controlled substances shall keep a record of all such substances administered, dispensed or distributed by him, showing the amount administered, dispensed or distributed, the date, the name and address of the patient, and in the case of a veterinarian, the name and address of the owners of the animal to whom such substances are dispensed or distributed. Such record shall be kept for two years from the date of administering, dispensing or distributing such substance and shall be open for inspection by the proper authorities.
  • (c)  Persons registered or licensed to manufacture or distribute or dispense a controlled substance, other drug or device under this act shall keep records and maintain inventories in conformity with the record-keeping, order form and inventory requirements of Federal law and with any additional regulations the secretary issues. Controlled substances in Schedules I and II shall be distributed by a registrant to another registrant only pursuant to an order form.
Violations of either of these two subsections and their itemized list, by either doctors or other health care nurses is dealt with under section § 780-123, revocation of licenses of practitioners.
  • (a)  Any license or registration heretofore issued to any practitioner may either be revoked or suspended by the proper officers or boards having power to issue licenses or registration to any of the foregoing, upon proof that the licensee or registrant is a drug dependent person on the use of any controlled substance, after giving such licensee or registrant reasonable notice and opportunity to be heard.
  • (b)  The appropriate licensing boards in the Department of State are hereby authorized to revoke or suspend the registration or license of any practitioner when such person has pleaded guilty or nolo contendere or has been convicted of a felony under this act or any similar State or Federal law. Before any such revocation or suspension, the licensee or registrant shall be given a hearing before the appropriate board. At such hearing the accused may be represented by counsel and shall be entitled to compulsory attendance of witnesses.
  • (c)  The appropriate licensing boards in the Department of State shall automatically suspend, for a period not to exceed one year, the registration or license of any practitioner when the person has pleaded guilty or nolo contendere or has been convicted of a misdemeanor under this act. The district attorney of each county shall immediately notify the appropriate State licensing board of practitioners subject to the provisions of this section. However, the provisions of such automatic suspension may be stayed by the appropriate State licensing board in those cases where a practitioner has violated the provisions of this act only for the personal use of controlled substances by the practitioner and the practitioner participates in the impaired professional program approved by the appropriate State licensing board for a period of between three and five years, as directed by the appropriate licensing board. If the practitioner fails to comply in all respects with the standards of such a program, the appropriate licensing board shall immediately vacate the stay of the enforcement of the suspension provided for herein. Automatic suspension shall not be stayed pending any appeal of a conviction. Restoration of such license shall be made as in the case of a suspension of license.

35 Pa. Stat. Ann. § 780-123

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

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.

 

 

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!!!!

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