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!

Pennsylvania’s Accepts the Interstate Medical Licensure Compact Act

Pennsylvania has finalized its membership in the Interstate Medical Licensure Compact Act.  Found at 63 P.S. §395.2, the General Assembly authorizes the Governor to execute the Interstate Compact for Medical Licensure of non-Pennsylvania based physicians.  As I wrote previously last summer, the proposal substantially strips Pennsylvania medical licensees of many due process rights.

Pennsylvania based physicians who seek licensure in member states become subject to those jurisdictions’ criminal and disciplinary process, investigations and actions.  My prior blog addresses the significant pit falls of that process.  Reviewing the definition section of the enabling legislation (which is a nationwide standard set of definitions and procedures) helps understand how and why Commonwealth Pennsylvania physicians seeking multi-state licensure are at substantial exposure to extra jurisdiction disciplinary action without the many protections of Pennsylvania’s administrative due process.

A physician’s medical license, granted by a member state to an eligible physician, is subject to this new law’s legal definitions. First and foremost is the definition of conviction of any type of criminal act. Conviction means: a finding by a court that an individual is guilty of a criminal offense through adjudication, or entry of a plea of guilt or no contest to the charge by the offender. Evidence of an entry of a conviction of a criminal offense by the court shall be considered final for purposes of disciplinary action by a member board.  Potential criminal acts — any “Offense” means: a felony, gross misdemeanor or crime of moral turpitude.

At issue for Pennsylvania and/or New Jersey doctors is the difference in criminal versus administrative matters.  A DUI in Pennsylvania is criminal versus New Jersey it is administrative.  There are many matters in Pennsylvania that result in a summary resolution, not a felony and misdemeanor conviction.  What is a gross misdemeanor?  The Act does not differentiate.  In Pennsylvania, criminal charges are brought after a  preliminary hearing.  Many states proceed by indictment.  The Act does not distinguish enrollment in a non-conviction based diversion program.  How difference states render disciplinary action based upon different standards of conduct (from that of Pennsylvania Medical Board) and resolution – which each member state will now have to unilaterally accept – is significant.

These huge differences apply to all physicians.  Who is a physician.  Physician under the Act means a person who:

1. is a graduate of a medical school accredited by the Liaison Committee on Medical Education, the Commission on Osteopathic College Accreditation or a medical school listed in the International Medical Education Directory or its equivalent;
2. passed each component of the United States Medical Licensing Examination or the Comprehensive Osteopathic Medical Licensing Examination within three attempts or any of its predecessor examinations accepted by a state medical board as an equivalent examination for licensure purposes;
3. successfully completed graduate medical education approved by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association;
4. holds specialty certification or a time-unlimited specialty certificate recognized by the American Board of Medical Specialties or the American Osteopathic Association’s Bureau of Osteopathic Specialists;
5. possesses a full and unrestricted license to engage in the practice of medicine issued by a member board;
6. has never been convicted, received adjudication, deferred adjudication, community supervision or deferred disposition for any offense by a court of appropriate jurisdiction;
7. has never held a license authorizing the practice of medicine subjected to discipline by a licensing agency in a state, federal or foreign jurisdiction, excluding an action related to non-payment of fees related to a license;
8. has never had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration; and
9. is not under active investigation by a licensing agency or law enforcement authority in a state, federal or foreign jurisdiction.

 

Licensees must identify a state of primary licensure.  That state will verify eligibility, conduct background checks, and maintain fingerprint and biometric data. However, these investigations and parameters are set through federal regulations, and not individual state law. Expedited licensure issued by the central processing state makes that interstate commission more powerful than the individual primary state. The interstate license is limited to a specific period of time in the same manner as required for the physicians holding a full unrestricted license within that state. And expedited license obtained through the compact shall be terminated if the physician fails to maintain a license in the state of principle licensure for a non-disciplinary reason, without re-designation of a new state or principle licensure.

Because there’s a coordinated information system, Pennsylvania’s law allows member boards to report to the interstate commission any public action or complaints against a licensed physician who has applied to receive the expedited license through the compact. Member boards report disciplinary or investigation information and determine if it is necessary and proper basis for disciplinary action by the interstate commissions. Member boards may report any non-public complaint, disciplinary or investigative information to the commission. Member boards will share complaint or disciplinary information.. This means even the most minimal initial disciplinary investigatory claims, unfounded, without final disciplinary decision, by a member state is automatically reported to the entire commission. Disciplinary action from the commission, not an individual state jurisdiction, could be the basis for disciplinary action. How does the physician defend himself or herself against this.

The Act specifically says “any disciplinary action taken by any member board against a physician license through the compact shall be deemed unprofessional conduct which may be subject to discipline by other member boards, in addition to any violation of the medical practices act or regulations in that state. Such a disciplinary action by one state may be deemed conclusive as to a matter of law in fact, allowing the member jurisdictions to impose the same or less or sanction or pursue a separate disciplinary action against position under its respective medical practices act, regardless of action taken and other member states.

 

Call me about your license application, conditional approvals, of pending discipline.

A Fringe Benefit of Practicing Law in the Commonwealth of Pennsylvania

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

Monroe County Court House Square

 

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

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

Home made scones, croissants, and danish.

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

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

Call me about your legal matter.

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

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

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

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

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

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

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

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

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

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

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.

IP Addresses and an Expectation of Privacy — NIT and Government Malware

My criminal practice recently focused on a significant case involving IP addresses and privacy rights. The case involves government use of online surreptitious surveillance methods, an NIT, in a criminal investigation to determine a potential defendant’s Internet Protocol (“IP”) address, and thus home address, to subsequently serve criminal subpoenas and search warrants on that home address. The government maintains in these types of investigations potential criminal defendants have no expectation of privacy in their IP address. However, various criminal statutes, regulatory provisions, and sentencing guidelines reflect Congress’ intent to provide a national reasonable expectation of privacy rights in “IP” addresses and thus location data. This blog shall identify several federal statutes that establish Congressional privacy rights in IP or location address data.

In one criminal statute, Congress makes it illegal under 18 U.S.C. § 1030(5) to “knowingly cause[s] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer.” Subsection 1030(f) “does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.” Congress’ requirement of a warrant in subsection (f), “prior authorization” through a judicially approved legal procedure and probable cause, indicates the privacy and constitutional rights that are applicable to these searches, when the take place in searching a defendant’s home pre-arrest.

In these cases, the Government maintains defendants do not have a reasonable expectation of privacy in their IP location data. They are wrong. The government thinks it is OK to hack private individual’s computers through a code or command sent to that computer. Courts have held these types of investigations are searches, requiring an authorized warrant, and thus judicial oversight. Required judicial oversight is Congressional recognition of privacy rights in location data.

This position is supported by a recent national criminal case. In 2013 various Chinese state co-conspirators were indicted for violating 18 U.S.C. §§ 1028 and 1030, et seq. At paragraphs 15, 18, and 43 of the indictment, the Government alleges these officials engaged in acts constituting violations of 18 U.S.C. § 1028(a)(1), 18 U.S.C. §§ 1028A(b), 1028A(c)(4), and 2. The blatant and outrageous criminal conduct at paragraphs 52-53 includes illegally taking personal identification information of another, without authorization. The Government equates stealing personal IP address and location data with violations of the United States Code.

The United States Sentencing Guidelines include a specific guideline provision devoted to theft of personal privacy data. For sentencing purposes, confidential information under 18 U.S.C. § 1039(h)(1)(A) includes personal location data. U.S.S.G. §2H3.1 addresses the manner in which federal courts are to assess offense levels and sentencing enhancements for violations of 18 U.S.C. § 1039.

In the context of active location data provided through cellular telephone surveillance capabilities, there has been extensive litigation over the definition of Other Information that is generated when utilizing a cellular telephone. Congress defines Other Information as historical and real time “cell site location information” (“CSLI”), which discloses location data of persons utilizing cellular telephones. In In re Application, 620 F.3d 304 (3d Cir. 2010), the Third Circuit addresses probable cause requirements in warrants seeking this information based upon the privacy issues attached thereto. See (http://www.phila-criminal-lawyer.com/Publications/005061214-Hark.pdf).

In 1997 Congress passed amendments to the Communications Act of 1934. Congress, and the FCC, through enabling regulations, passed numerous rules identifying and then delineating the exact nature of customers’ privacy rights to their personal information and telecommunication companies’ duty of protecting such from commercial exploitation. 47 U.S.C. § 222 was added to the Communications Act by the Telecommunications Act of 1996. Section 222 of the Act establishes a duty of every telecommunications carrier to protect the confidentiality of customer proprietary network information (” CPNI”). CPNI is “information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship.” 47 U.S.C. § 501 makes it a crime to knowingly and intentionally violate (disclose this information) the Act.

The Privacy Act of 1974 addresses privacy of federal employees’ personal information. “No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains [subject to 12 exceptions].” 5 U.S.C. § 552 a(b). 32 CFR 505.7 – relating to Freedom of Information Act disclosures of Federal Employees personal information states at subsection (e) (1) states “The release of home addresses and home telephone numbers normally is prohibited.”

Release of personal location information is normally considered a clearly “unwarranted invasion” of personal privacy and is exempt from mandatory release under the FOIA. 32 CFR § 505.7(d)(1)(vi) identifies home addresses as personal information not to be release without prior consent of the individual. There is an entire Department of Justice Overview of this Act on its website. The DOJ has its own Chief Privacy and Civil Liberties Officer enforcing provisions of the Privacy Act on Federal employees and agencies. https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition.

Congress has established privacy obligations on the private sector through legislation affecting the financial services, health care, government, and Internet sectors. Federal regulations issued to carry out federal privacy laws impose obligations on covered entities to implement information security programs to protect unauthorized dissemination of private individual’s personal information. Protected personal information (“PPI”) in each service field typically includes name, address (location) date of birth, and social security numbers of the persons affected. A short list of CFR sections addressing PPI includes 32 CFR 701.115, 32 CFR 505.7, and 36 CFR 902.56.

In light of numerous federal statutes criminalizing any disclosure of personal privacy information (address location data) of both private and government employees, every defendant or target has a reasonable expectation of privacy in their location data, to which a legal and proper warrant is required for the Government to discover such information.

Please call me to discuss your case.

Network Investigative Techniques, Federal Criminal Search Tools, and Your 4Th Amendment Rights

My involvement for twenty five years in federal criminal matters has resulted in me handing many different Motions to Suppress. Recently, in the context of Federal internet criminal investigations, I have gained extensive experience fighting the new federal investigative techniques, (“NIT”) that reveal personal identity and location data.

Once such case involves the Government’s use of an NIT or Network Investigative Technique. The NIT is a malware program placed on a computer server that launches itself into each computer accessing that server to engage in alleged criminal activity.  The accessing computers utilize the TOR network for anonymity purposes.  Upon accessing specific areas of the server, the malware on the server then sends to the activating computer (in another state typically inside a person’s home) a code instruction to search, secure, and transmit back to the server the user’s IP address. Thereafter, search warrants secure the personal identification and location information of the accessing computer owner.

I have filed motions to suppress this search technique.  The Government bears the burden of showing, under the Fourth Amendment, the reasonableness of each individual act constituting a search or seizure. The burden of proof is by a preponderance of the evidence. The court is presented with the choice of two tracks of analysis. Does the court choose to evaluate these defendants’ constitutional rights affected by the NIT Warrant under the:
1) Reasonable expectation of privacy test set forth in United States v. Katz, 389 U.S. 347 (1967); or
2) The property-based Fourth Amendment test set forth in United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012). There, the court exclusively applied the property-based approach to determine whether a search occurs when the Government physically occupies private property of another for the purposes obtaining information. This approach keeps easy cases easy.

  1. PROPERTY-BASED FOURTH AMENDMENT PROTECTIONS

The court must choose the property-based search analysis set forth in JonesJones holds that surveillance on a person through electronic means without a warrant constitutes a trespass and may be an unconstitutional invasion of privacy. 132 S.Ct. at 953–54. Even though Jones involved warrantless global positioning system (“GPS”) searching, the analysis applies because the NIT warrant is illegal. Jones makes clear the constitutional nature of computer searches, especially in the privacy of one’s home.

Florida v. Jardines, 569 U.S. 1 (2013), follows Jones’ property – based Fourth Amendment jurisprudence.  The Jardines court held that a warrantless dog sniffing through the front door of Jardines’ home constitutes an unconstitutional search of a constitutionally protected area.  In Jardines, as here, “the officers learn what they learned only by physically intruding on Jardines’ property to gather evidence.”  This search activity is enough to establish that a search occurred. These cases stand for the proposition that the “Fourth Amendment, at its very core, stands for the right of a man to retreat into his home and there be free from unreasonable Government intrusion.” Jardines, supra.

There is no evaluation or discussion of an expectation of privacy under the property-based Fourth Amendment jurisprudence after JonesJardines, 569 U.S. at *9.  The court recognizes a simplistic procedure.  If the Government goes on the property of another, (trespassing or not) it needs a warrant due to Fourth Amendment’s constitutional property rights. These NIT cases, the Government understood this legal necessity and secured the NIT warrant. However, the NIT warrant was illegal.

  1. The Constitutional Character of the NIT Search is Per Se Prejudicial

In today’s society, disclosing an Internet Protocol (“IP”) address is, in essence, disclosing protected location privacy. Similar to Jones‘ GPS coordinates in tracking devices or cellular telephones, location data reveals a great deal about a person.  As such, cases discussing governmental activity and search techniques that reveal a defendant/target’s location are relevant to the court’s analysis of prejudice and the constitutional level of protections in these motions to suppress.

United States v. Maynard, 615 F.3d 544, 562 (D. C. Cir. 2010), affirmed, United States v. Jones, supra, stands for this proposition. Analogizing IP address location data to cellular telephones, Justice Alito writes that “society’s expectations have been that police agency and others will not secretly monitor and catalog every single movement of an individual’s car for a very long period of time.” Jones at 945.

Thereafter, in Riley v. California, ___ U.S. ___, 134 S. Ct. 2473 (2014), the Supreme Court following Jones, specifically references location privacy as a reason to limit police searches of cellular telephones incident to arrest.  The Riley Court determines that due to the wealth of information electronic devices “contain and all they may reveal, they hold for many Americans the privacies of life.” Riley at 2494–95.

Riley even states, “The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search “is acceptable solely because a person is in custody.” Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 26). To the contrary, when “privacy-related concerns are weighty enough” a “search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” Ibid. One such example, of course, is Chimel. Chimel refused to “characteriz[e] the invasion of privacy that results from a top-to-bottom search of a man’s house as ‘minor.’” 395 U. S., at 766–767, n. 12. Because a search of the arrestee’s entire house was a substantial invasion beyond the arrest itself, the Court concluded that a warrant was required.” Riley, supra.  Cellular telephones and home computers are simultaneously offices and personal diaries containing the most intimate details of our lives. United States v. Cotterman, 709 F. 3d. 952, 964 (9th Cir.. 2013).  Several circuits recognize these facts, uniformly requiring a warrant prior to searching a computer. United States v. Paton, 573F.3-D 859 (9th Cir. 2009); United States v. Andrus, 483 F.3d 711, 718 (10th Cir. 2007).

The Eastern District of Pennsylvania addresses surveillance issues of GPS warrants in United States v. Ortiz, 878 F. Supp. 2d. 515 (E.D.Pa. 2012). In the Court’s discussion of location data and the privacy issues, it concludes that the Government’s warrantless surveillance technique “produces location data while inside the garage of a home or other Fourth Amendment protected place”, potentially yielding information that the Supreme Court specifically found in United States v. Karo, 468 U.S. 705 (1984), is protected by the Fourth Amendment.

An unreasonable search within the meaning of the Fourth Amendment occurs where, without a warrant, the Government surreptitiously employs an electronic device to obtain information it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually    located at a specific time in the private residence and is in the possession of the person or persons whose residence is being watched.  Even if visual surveillance has revealed that the article to which the beeper is attached  has entered the house, the later monitoring not only verifies the officers about observations but also establishes that the article remains on the premises. United States v. Karo 468 US at 715.

Ortiz at ___.

Review of these controlling Supreme Court cases and their emphasis on the data produced through cutting edge surveillance techniques (including an NIT) on electronic mediums (cellular telephones and home computers) render’s applicable the Fourth Amendment privacy protections afforded to Jones, Jardines, and Riley.

  1. Expectation of Privacy in an IP address

An expectation of privacy in location data that IP addresses reveal is both objectively and subjectively reasonable based upon people using the TOR network and how the Government secures those person’s IP address.  The Government typically argues that because these defendants may have initially disseminated their IP address through an internet service provider (“ISP”), they have no expectation of privacy in an IP address.  This is factually wrong.

  1. Third Party Doctrine

The case of Smith v. Maryland, 442 U.S. 735 (1979), addresses warrantless access to information possessed by a third-party. This is the third-party doctrine set forth in United States v. Jones, 132 S. Ct. at 957.  Third party dissemination and reduced expectation of privacy has no applicability here because of the NIT’s mechanism of search and how Government secures that defendant’s IP address from his computer, not a third-party ISP. The court requires factual testimony on this issue.

United States v. Stanley, 753 F.3d 114 (3d. Cir. 2014), specifically addresses the no expectation of privacy of IP addresses when a defendant uses his neighbor’s wireless router without permission. The Government found Stanley’s computer’s wireless signal piggy backing illegally on his neighbor’s unsecured wireless router. Such unauthorized use of the neighbor’s IP address through which a third-party provider secures individual media access control (“MAC”) addresses of moochers of other people’s wireless routers. The Court found this fact alone reveals that Stanley had no expectation of privacy in his IP or MAC address. Stanley‘s finding that there is not an expectation of privacy in an IP address is not binding here as such is not the basis of the Government’s investigation in this case.

These defendants’ IP addresses are not disclosed anywhere throughout the use of the TOR or his third party ISP.  Declaration, Special Agent Daniel Alfin, document no. 74-1, filed June 1, 2016, U.S. v. Matish, 4:16-cr-00016, attached hereto at Exhibit 3.  This declaration makes clear that the NIT did not secure any other defendant’s, IP address from a third-party ISP or through the TOR network. Rather, the NIT searched for and secured the accessor’s IP address SOLELY from their own computer programming.

The NIT transferred directly to the Government from that defendant’s computer, his IP address not through the ISP.  The Government must acknowledge this fact in response to court’s inquiry of how the NIT worked in Matish. The Government bluntly concedes that but for the IP address, it could not locate these defendants.  These IP address would have been unknown.  The accessing defendants’ personal location data is collected from the accessing computer. See Exhibit 3, Alfins’ declaration, ¶¶ 22 and 25; Exhibit 2, Alfin’s May 19, 2016 Testimony, page 13-17, 21–26.  Alfin makes clear this factual point.

Once put to the test in a Motion to Compel Discovery, Alfin’s testimony is in stark contrast to the NIT Affiant Special Agent Douglas Macfarlane’s affidavit stating that the NIT instructions “are designed to cause the user’s ‘activating’ computer to transmit certain information to a computer controlled by or known to the government,” including the “activating” computer’s actual IP address. See Affidavit in Support of Application for Search Warrant, at ¶ 33.   The NIT would deploy “each time that any user or administrator log[ged] into Playpen by entering a username and password.” (Id., Ex. 1 ¶ 36.) The FBI could then link a username and its corresponding activity on the site with an IP address. (Id., Ex. 1 ¶ 37.)  This is factually wrong when compared to Alfin’s declaration and testimony regarding how the NIT worked its search functions performed when an accessing computer logged onto the Playpen Website.

The Government was less than candid with the tribunal by not advising it that the NIT would send a computer search and seizure program to the user’s home computer and then send back to the FBI computer an IP address.  The FBI was not linking a username and corresponding activity to an IP address. Further, the record is unclear if the Government told  the Magistrate that it was concurrently filing a Title III warrant.  This would have disclosed both its strategic use of a magistrate to issue the NIT Warrant and its seizure gathering mechanism of electronic information for which it required Article III judicial authorization.

The NIT that accessed these defendants’ computers operates in the computer memory locations, retrieved information, and then leaves the computer. The same situation is presented when the Government comes into your house, searches your house, and then leaves. The Government is required to advise you of the search (giving you the search warrant) and then leaves you an inventory of items seized. None of that was done in this occasion.  Jones, Riley, Jardines affirm this constitutional requirement to which Rule 41(B) codifies into a procedure implementing the Fourth Amendment’s warrant provision.

As such, the question is not whether there’s a reasonable expectation of privacy in an Internet IP address (as Werdene concluded there was not), but does a person have a reasonable expectation of privacy in the area where the search (his home) occurred and in the information seized (his location).   Rakas v. Illinois, 439 U.S. 128 (1978). Darby and Matish conclude yes.  This court must choose the property-based Fourth Amendment analysis and afford these deendants the constitutional protections because the NIT searches a home-based computer.

Call me to discuss your NIT, Playpen based federal government internet criminal matter.

State Trooper Highway Automobile Dog Searches After the End of Traffic Investigation

This week the United States Supreme Court decided Rodriguez v.United States, 575 U.S. ___ (2015). The decision affirms a significant portion of Pennsylvania law in the area of extension of traffic stops beyond the initial motor vehicle code investigation. I have handled these cases in Cumberland, Lancaster, Montgomery, Bucks and Philadelphia Counties.

These cases routinely involve state troopers illegally extending basic traffic stop investigations into motor vehicle searches. These extended traffic stops discover illegal contraband leading to broader criminal charges. However, it is that extended search, based only upon a guess, hunch, or a simple illegal request to search, that is illegal.

Rodriguez v. United States rules illegal the extension of a traffic stop by calling in a dog sniff team without reasonable suspicion of criminal activity. The US Supreme Court previously stated that a dog sniff conducted during a lawful traffic stop does not violate the fourth amendment proscription unreasonable seizures. Rodriguez presents the question of whether the Fourth Amendment tolerates EXTERIOR dog sniffs after completion of a traffic stop, not during, when the time needed to handle the matter for such violation exceeds a reasonable time.

The Pennsylvania trial courts have addressed this scenario many times, leading a Chester County Judge to state, “there is a distasteful convergence of facts and circumstances … that test the bounds of credulity and requires the court’s candor in distinguishing between lawful police investigatory conduct and conduct proscribed by our Constitutions.” Commonwealth v. Parker, 2009 Pa. Dist. & Cnty. Dec. LEXIS 132 (2009)(Honorable Ronald C. Nagle, Chester County Court of Common Pleas). The Pennsylvania Supreme Court has consistently stated, “Where the purpose of an initial traffic stop has ended and a reasonable person would not have believed that he was free to leave, the law characterizes a subsequent round of questioning by the police as an investigative detention or arrest. In the absence of either reasonable suspicion to support the investigative detention or probable cause to support the arrest, the citizen is considered unlawfully detained.”

After police finish processing a traffic infraction, the determination of whether a continuing interdiction constitutes a mere encounter or a constitutional seizure centers upon whether an individual would objectively believe that he was free to end the encounter and refuse a request to answer questions. Commonwealth v. Kemp, 2008 PA Super 274, 961 A.2d 1247, 1253 (Pa. Super. 2008) citing Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000).

To determine whether interaction following a legal detention is a “mere encounter” or a detention, Pennsylvania courts analyze the totality of the circumstances including:

1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen’s movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, . . . thus suggesting to a citizen that his movements may remain subject to police restraint; 9) the presence of an express admonition to the effect that the citizen-subject is free to depart is a potent, objective factor; and 10) whether the citizen has been informed that he is not required to consent to the search.

Commonwealth v. Moyer. Conferral of the ‘free-to-go’ advice is itself not a reason to forego a totality assessment’ and therefore does not constitute a controlling factor in assessing whether a person would actually credit a police indication that he was free to leave.”

In many of these cases, the police fabricate the basis for the late night car stop, picking some specious motor vehicle code violation. Allegations of traveling too closely, lane change without a blinker, a license plate lights out, obstructions from a rear view mirror, or illegal under car lights are typical deminimus traffic violations. Sometimes tickets are issued. More often than not, no warnings or violation is recorded.

After the individual is removed from the vehicle, basic cursory flashlight investigation and driver’s information computer checks are made. In many cases all is legal.  There is no evidence of criminal activity presented to justify either a consensual search or a request for a non-consensual search. Maybe two cell phones, a rental car, and a careful driver from out-of-state is present. Troopers routinely claim under oath that the person, wherever they are coming from, was traveling from a high drug area.

At this juncture, state troopers threaten dogs ripping apart vehicles. If this does not work, suggestions of long delays and “we will just get a warrant” followed by “we will then rip your car apart” are employed. These tactics are deployed to secure consent to search. It is when the search requests are denied, as in Rodriguez, that state troopers call in backup canine officers. Here the motorist must wait and is thus detained.

When the dogs arrive and conduct the exterior sniff, alerting to “contraband”,Troopers now claim reasonable suspicion to then enter the car for further searching. Rodriguez addresses the legality of this police tactic; extending an otherwise legal traffic stop that did not present reasonable suspicion of criminal activity, by requiring a motorist to wait for the canine sniff team for the exterior search which creates the only reasonable suspicion to then enter the car without consent.

It is now the law of the land that this is illegal. Rodriquez rules that the traffic stops become unlawful when prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket. The seizure remains lawful only so long is unrelated inquiries do not measurably extend the duration of the traffic stop. The court ruled that a dog sniff, a measure aimed at detecting evidence of ordinary criminal wrongdoing, with out reasonable suspicion to do so extends illegally the duration of the traffic stop.

The Court squarely rejected the argument that an officer may incrementally prolonged a stop to conduct dog sniffs so long as the officer is reasonably diligent in pursuing the traffic related purpose of the stop. (The Court equated this to the officer earning bonus time to pursue an unrelated criminal investigation.) The magistrate’s finding that the detention for the dog sniff, which itself prolongs the traffic stop, was not independently supported by individualize suspicion, rendered illegal the extension of the traffic stop.

Call me to discuss your car investigation.

Pennsylvania Unconstitutional Mandatory Minimum Prison Sentencing Scheme

On December 2, 2014 Superior Court handed down the decision of Commonwealth v. Bizzel. On November 25, 2014 a different panel of Superior Court handed down the decision of Commonwealth v. Cardwell. In Bizzel, the defendant was found guilty of selling drugs in a drug-free school zone, in violation of 18 PA C.S.A. § 6317. He was sentenced to a mandatory minimum term of incarceration of 2 to 4 years. Defendant Cardwell was sentenced to a mandatory minimum term of imprisonment of 3 to 6 years pursuant to 18 PA C.S.A. § 7508 based upon the weight of the drugs he was found guilty of selling. These two companion cases address the mandatory minimum sentencing provisions of §§ 6317 and 7508 of the Pennsylvania Crimes Code.

In each case, at the time of sentencing, the trial court found by a preponderance of the evidence the necessary factual elements to trigger the respective mandatory minimum sentencing provisions and thereafter imposed the mandatory minimum sentence. In Cardwell, the proof introduced at the sentencing hearing, in accordance with §7508(B), was by a preponderance of the evidence that the aggregate weight of the drugs involved was higher than a certain amount. In the Bizzel, the evidence introduced at the sentencing was the distance in feet of the nearest school to the place where the defendant was found guilty of selling drugs.

On appeal, each defendant objected to the unconstitutional sentencing enhancement that Pennsylvania’s mandatory minimum sentencing floor allowed. That sentencing floor was determined to be unconstitutional in Commonwealth v. Miller, 2014 PA Super 214, (2014), Commonwealth v. Thompson, 2014 PA Super 106 (2014), and Commonwealth v. Newman, 2014 PA Super 178 (2014). Each of these cases relied upon Alleyne v. United States, 130 S. CT. 2151 (2013).

Alleyne stands for the proposition that any statutorily set minimal jail sentence is unconstitutional if a legislature requires a judge to impose a sentence based upon facts for which a defendant was not found guilty of beyond a reasonable doubt. “Facts that increase mandatory minimum sentences must be submitted to the jury and must be found beyond a reasonable doubt.” Alleyne at 2163.

The Newman and Miller courts rejected prosecutors’ arguments that specific facts may be submitted to the jury to determine, thus triggering a mandatory minimum sentence. The prosecutor had done so in those cases trying to avoid Alleyne. However the courts determine the legislature, in enacting the sentencing scheme, did not give the judge the ability to allow a jury to determine facts that the legislature required the judge to determine.  In both Bizzel and Cardwell, the counsel contested the prosecutor allowing the judge to instruct the jury to determine facts under the statute that the legislature previously required the court to determine at a lower burden of proof.

This so-called severing of sentencing responsibilities was disallowed in Miller, Newman, and Commonwealth v. Valentine, 214 PA Super. 220 (2014). Each of these cases discuss judicial/legislative responsibility, burden of proof, and judicial factual prerequisites. Because the judicial responsibilities are not severable, but inseparably connected to the sentencing statute, which has been determined to be unconstitutional, it must follow that those same essential and inseparable judicial responsibilities are also unconstitutional.

The Bizzel and Cardwell courts see no meaningful difference in any of the proposed sentencing schemes the prosecutor has offered. Submitting essential elements to a jury or excepting a stipulation from the defendant for the purposes of imposing a mandatory minimum sentence outside the statutory framework is still solely within the province of the legislature to create, allow, or except. It is not for the judge to abdicate its sentencing responsibilities.

In all of these cases the courts have been constrained to conclude that the trial courts are unconstitutionally imposing mandatory minimum sentences, no matter how the facts are achieved for sentencing consideration, because such procedures have been determined to be unconstitutional. In light of an unconstitutional sentencing scheme in the form of mandatory minimum sentences, no sentence under the process is proper or legal. Call me to discuss your case.

Admitting To Unethical Behavior Without Counsel Will Cost You Your Professional License.

The Commonwealth Court, on November 6, 2014, handed down Van Ness v. Bureau of Occupational Affairs. This decision is a text book discussion of specific conduct upon which Pennsylvania’s licensing boards will base their decision to strip a licensee of their professional license. A guilty plea or admitting to an employer or Board investigator that one has engaged in fraudulent billing services in the course employment will be the basis for disciplinary action.

Van Ness worked as a independent contractor, physical therapist for a rehabilitation entity. He provided physical therapy to special education students on an as needed basis. Unfortunately, Van Ness both over billed and did not keep proper track of his time and effort for the patients/clients for whom he worked and then incorrectly and illegally billed for his services. Upon being confronted with over 400 hours of over billed services, constituting 600-700 entries of services rendered, totaling over $16,000, Van Ness admitted to his employer/contractor that he did not do the work and he needed the money. This was an admission of engaging in fraud based upon greed.

Upon being reported to the Physical Therapy Board and attending a hearing, the hearing examiner found that Van Ness participated in the use of a communication containing false, fraudulent, deceptive or unfair statements when he submitted fraudulent bills for payment of services he did not render. Although there was a finding for a disciplinary basis, 49 PA. Code section 42.24(5), the hearing examiner suspended Van Ness’s license for six months. The Commonwealth sought a complete license revocation.

The PT Board reviewed the hearing officer’s finding of facts and conclusions of law, determined that every intentional entry of false information for billing records constituted a separate serious offense each of which demeaned the reputation of the healthcare system and medical practitioners. Concluding that Van Ness engaged in this type of behavior consistently for a four month period purely for greed, “placing his desire for financial gain over the treatment needs of special needs children for whom he responsible, “the board rejected the six-month suspension suggested by the hearing officer and imposed a five-year license revocation.

Van Ness appealed arguing that the PT Board did not consider his post incident rehabilitation and consistent legal conduct acting as an occupational therapist with out further incident. The Commonwealth Court determined that the Board was fully within its authority to enforce a five-year license suspension based upon a code of ethics violation. The Court did not differentiate between an ethics violation or criminal charges to which Van Ness could have been subject had there been a criminal investigation.

The import of this case is significant. Initially, do not make any admissions to an employer, contractor, or state investigator of any type of billing irregularities. Van Ness was not criminally charged. He did not enter into any ARD program or guilty plea for which he was subject to a conviction and other disciplinary conduct. There was no evidence in the record of complaints by occupational therapy clients of service not being rendered. There was no forensic testimony of billing code violations, types of treatment or services not rendered compared to the actual services rendered and incorrect billing codes suggested, or any other evidence in the case. The only evidence was his own admission.

Apparently the entire disciplinary action was predicated upon Van Ness’ own words. His admission to culpable ethical breaches for whatever reason, cathartic or not, doomed his case. Any admission to this type of criminal behavior in the current enforcement atmosphere of heightened sensitivity to Medicare/Medicaid fraud schemes creates an almost insurmountable suggestion of future disciplinary action. Contacting counsel to address how to proceed with any type of state-based investigation, employment related inquiry, or work related discipline is important. Unfortunately for Van Ness he did not do that. Please call me to discuss your case.

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