Felony Convictions and License Reinstatement

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

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What is a “Conviction” – How Important is Drug Court to the Licensed Professional?

In 1999 Tim Kearney was issued his Pennsylvania physician assistant (“PA”) license. In March 2010 he admitted himself into a treatment facility for drug addiction issues.  On August 16, 2011 he plead guilty to the felony Drug Act violation –  securing a prescription by fraud.  At the time of his guilty plea, Kearney acknowledges he understood that by pleading guilty he was  “admitting to committing the criminal charge” as alleged under the Pennsylvania Drug Act.

In December 2011 the Pennsylvania Medical Board automatically suspended Mr. Kearney’s PA license for no less than 10 years pursuant to section 40(B) of the Medical Practices Act of 1985.  This provision requires the Board to suspend any licensee who suffers a felony conviction for violating any provision of Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act (CSA). 35 P.S. § 780–113(a)(12).

In December, 2011, Kearney filed in criminal court a petition to vacate his guilty plea and enroll in the county adult drug court program.  In June 2014, after 2 1/2 years in drug court, Kearney petitioned to vacate his guilty plea and dismiss the criminal case.   His request was based upon compliance with all terms and conditions of the program. On June 20, 2014 the county trial court dismissed all of Kearney’s criminal drug charges.  They were subsequently expunged. (This is really important.)

Six months later, in December, 2014, Kearney filed a Petition to Reinstate his PA license based upon the lack of criminal conviction, the expungement, and his extensive drug and alcohol treatment.  This blog discusses the Commonwealth Court opinion approving his petition and reversing the Medical Board’s refusal to reinstate Kearney’s PA license.  The case is found at Kearney v. Bureau of Professional and Occupational Affairs, — A.3d —- (2017).

The Pennsylvania administrative law hearing examiner denied Kearney’s Petition to Reinstate his PA license. The hearing examiner concluded Kearney’s admission of guilt in the guilty plea colloquy and statement before the presiding judge when the charges were dismissed constitute either a conviction or an admission of guilt pursuant to the Medical Practices Act.  The hearing officer determined Kearney satisfied his burden of proof that he was able to resume his PA practice with reasonable skill and safety to patients, subject to monitoring by the physicians health program.

The Medical Board agreed with the hearing examiner that Mr. Kearney’s PA license remained indefinitely suspended as a result of a “conviction” as defined by the Medical Practices Act.  It did not reach the PHP and monitoring aspect of the decision because it determined Kearney’s license was still suspended.

Kearney appealed to the Commonwealth Court, which reversed. The sole issue on appeal was whether Kearney’s original guilty plea (vacated and now expunged) constituted a conviction and his statements on the record constitute “admissions of guilt“ in accordance with section 40B of the Medical Practices Act.

Commonwealth Court reviewed the Medical Practice Act.  “The Act provides, in pertinent part, that “[a] license or certificate issued under this act shall automatically be suspended upon … conviction of a felony under the act … known as [t]he [CSA] ….” 63 P.S. § 422.40(b). Section 40(b) of the Act clarifies that “[a]s used in this section, the term ‘conviction’ shall include a judgment, an admission of guilt or a plea of nolo contendere.Id.; see also section 2 of the Act, 63 P.S. § 422.2 (defining “conviction” as “[a] judgment of guilt, an admission of guilt or a plea of nolo contendere.

  • Section 43 of the Act further states that “[a]ny person whose license, certificate or registration has been suspended or revoked because of a felony conviction under the [CSA] … may apply for reinstatement after a period of at least ten years has elapsed from the date of conviction.” 63 P.S. § 43.

While the Act provides for automatic suspension of a license for a felony “conviction” under the CSA, the Act incorporates the CSA by express reference. By all reasonable means, this compelled the Court to unify two or more statutes in a cohesive and consistent fashion and avoid interpreting one statute in a manner that repeals or is otherwise incongruous with another statute.

Under section 17 of the CSA, a trial court “may place a person on probation without verdict if the person pleads nolo contendere or guilty to any nonviolent offense under [the CSA] and the person proves he is drug dependent.” 35 P.S. 780–117. (This is a Section 17 plea.)

Importantly, that section also states that “[u]pon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him,” adding that the “dismissal shall be without adjudication of guilt and shall not constitute a conviction for any purpose whatever ….” 35 P.S. § 780–117(3) (emphasis added). Section 19 of the CSA further declares that records of arrest or prosecution under the Act will be expunged. When a court orders expungement, the records “shall not … be regarded as an arrest or prosecution for the purpose of any statute or regulation or license or questionnaire or any civil or criminal proceeding or any other public or private purpose.” 35 P.S. § 780–119(b).

As a surface matter, Commonwealth court observes that a plain reading of the statutes indicates that, while the Act includes an “admission of guilt” as a subpart of the definition of a “conviction,” the CSA commands that a final disposition of “probation without verdict” does not constitute a “conviction.” Under the procedure in section 17 of the CSA for a “probation without verdict,” an individual’s “plea” is, in essence, held in abeyance, or not accepted, until there is a final determination by the court as to whether the individual has satisfactorily completed the terms and conditions of probation; if the individual does so, the trial court dismisses the charges and there is no verdict or finding of guilt in the matter.

Consequently, in order to afford the phrase “for any purpose whatever” in section 17 of the CSA its full linguistic effect, the Court reasonably interpreted it to mean that the oral and written statements made to a trial court in connection with a “probation without verdict” cannot be a considered a “conviction” for purposes of section 40(b) of the Act. To be sure, this construction is the only way in which the term “conviction” in the Act can be harmonized with the same term in the CSA.

Indeed, following dismissal of the underlying charges, the criminal record is expunged pursuant to section 19 of the CSA, and the criminal record cannot be used at all in an administrative licensing matter – not even as proof that the individual  was arrested or prosecuted.  In some statutes, our General Assembly, without using the word “conviction,” has expressly included the phrase “probation without verdict” to describe the basis upon which a licensing board can refuse, suspend, or revoke a professional license.

However, the General Assembly did not insert this or similar language in the Act. Nor did   the General Assembly inject “probation without verdict” alongside “admission of guilt” in the Act’s definition of a “conviction.” Inferentially, the divergence in word usage among the CSA, the Act, and other similar statutes is indicative of the General Assembly’s desire to conceptually separate an “admission of guilt” from a “probation without verdict,” suggesting to courts that the two should not be perceived or linked as being one and the same.

On the whole, Commonwealth Court precedent has clearly concluded as much.   For example, in Carlson, a teacher entered a plea of nolo contendere to charges that he possessed drugs in violation of the CSA, a plea that has “the same legal effect as a plea of guilty in the criminal proceedings in which it is entered.” 418 A.2d at 813. The criminal case proceeded under the provisions of section 17 of the CSA, and the teacher eventually had his criminal record expunged. Although this Court was convinced that the school district properly dismissed the teacher for immorality pursuant to sections 1122 and 1129 of the Public School Code, Act of March 10, 1949, P.L. 30, as amended 24 P.S. §§ 11–1122 and 11–1129, we pointed to the special nature and characteristics of the CSA and the probation without a verdict mechanism.

More specifically, the Court explained that when the charges are dismissed following compliance with probation, “no judgment is entered, notwithstanding the fact that the defendant is placed on probation, an act which normally constitutes a sentence, i.e. a judgment.” 418 A.2d at 813. On this basis, we determined that evidence of the teacher’s plea of nolo contendere was inadmissible, and further reasoned that, as a result of the expungement, there was “no criminal record” upon which the trier of fact could determine that the teacher engaged in conduct of a criminal nature. Id. Accordingly, this Court held that the teacher could not be discharged from his employment with the school district as a matter of law.

The crisp and clean understanding of this case is that in any Medical Board supervised license case, for which disciplinary action is based upon a conviction that has been opened and erased due to Drug Court compliance, there is no conviction.  There is no basis to deny reinstatement of a license.  Whether the PHP gets involved is a different question.  This case merely, but forcefully, allows for eligibility for reinstatement once Drug Court is served, complied with, and all charges are dismissed and expunged.

Call me to discuss your case.

 

Serious Medical Conditions according to Pennsylvania’s Medical Marijuana Law and How They Relate to Medical Professionals

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Pennsylvania began the legalization of medical marijuana with specific limitations on the medical conditions for which a practitioner can issue a prescription for medical marijuana (“MM”).   Act 16 of 2016, Section 403 (a) – Conditions for issuance – allows a physician to certify medical necessity only if all of the following requirements are met:

(1)  The practitioner has been approved by the department for inclusion in the registry and has a valid, unexpired, unrevoked, unsuspended Pennsylvania license to practice medicine at the time of the issuance of the certification.

(2)  The practitioner has determined that the patient has a serious medical condition and has included the condition in the patient’s health care record.

(3)  The patient is under the practitioner’s continuing care for the serious medical condition.

(4)  In the practitioner’s professional opinion and review of past treatments, the practitioner determines the patient is likely to receive therapeutic or palliative benefit from the use of medical marijuana.

The regulations define Serious medical condition as:

 (i) Cancer.
 (ii) Positive status for Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome.
 (iii) Amyotrophic lateral sclerosis.
 (iv) Parkinson’s disease.
 (v) Multiple sclerosis.
 (vi) Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity.
 (vii) Epilepsy.
 (viii) Inflammatory bowel disease.
 (ix) Neuropathies.
 (x) Huntington’s disease.
 (xi) Crohn’s disease.
 (xii) Post-traumatic stress disorder.
 (xiii) Intractable seizures.
 (xiv) Glaucoma.
 (xv) Sickle cell anemia.
 (xvi) Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.
 (xvii) Autism.

For the medical licensee seeking a medical marijuana card, the significance of these medical conditions cannot be understated.  A Pennsylvania medical licensee (nurse, doctor, dentist, and all others)  will have to suffer from a serious medical condition.  A referring medical marijuana practitioner  will have to certify the professional licensee’s serious medical condition necessitates marijuana for therapeutic or treatment reasons.  The practitioner will have to perform a completed and full assessment of the patient’s medical history and current medical condition, including an in-person consultation with the patient.  Reviewing the prescription drug monitoring history of that patient/licensee will also be necessary.

A MM practitioner will have to credibly determine that imminent disability is present, warranting therapeutic medical marijuana as all other drugs have or are failing.   Well, if the medical professional is disabled, they can not do their job.  If they are high on medical pot, the Boards think these licensees probably should not be permitted to practice their profession.

The burden of proof in disciplinary cases involving drugs or alcohol is whether the licensee suffers “from a drug or alcohol addiction or impairment or a medical condition that renders them incapable safely practicing.”  If a medical licensee’s MM practitioner suggests to the Department of Health the licensee is medically disabled to a degree that requires the therapeutic use of medical marijuana, a medical record has been generated stating the licensee is almost medical disability from practicing their profession. The medical impairment burden, it could be argued, has been met.

Conversely, if the medical licensee is prescribed medical marijuana (but not disabled), the use of medical grade marijuana renders the licensee under the influence of drugs or alcohol to such an extent that renders them in capable of safely practicing.  This logical reasoning jump  — using marijuana automatically renders one unsafe the practice — is found in other provisions of Pennsylvania law.  Those include the Drug act and Pennsylvania’s DUI statute.

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Pennsylvania’s DUI statute, 75 Pa. C.S.A. §3802(d) provides for legal intoxication if the mere presence of marijuana is in one’s bloodstream.  (Pennsylvania is not a drug recognition state where the prosecutor has to put into evidence testimony from a drug recognition expert, a “DRE”, that the level of marijuana in somebody’s blood renders them under the influence and incapable of safely driving.)  Pennsylvania is a per se violation state.  This means that the legislature has determined as a matter of policy, that any marijuana or other schedule II prescription medication in a person’s blood, renders that person automatically incapable of safely driving.

It is not a hard legal argument to suggest that if you can not safely drive because you are high on pot (any amount), the medical professional can not perform their medical  duties because they are high on pot.  Here is where the confidentiality provisions of the Act are important.   Section 301(A)(4) of the Act establishes an electronic database to include activities and information relating to medical marijuana organizations, certifications and identification cards issued, practitioner registration and electronic tracking of all medical marijuana as required under the Act.

Section 301(B)(a) allows for confidentiality of Patient information.–The department shall maintain a confidential list of patients and caregivers to whom it has issued identification cards. All information obtained by the department relating to patients, caregivers and other applicants shall be confidential and not subject to public disclosure, including disclosure under the act of February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, including:

(1)  Individual identifying information about patients and caregivers.
(2)  Certifications issued by practitioners.
(3)  Information on identification cards.
(4)  Information provided by the Pennsylvania State Police under section 502(b).
(5)  Information relating to the patient’s serious medical condition.

My concern is that these provisions in conjunction with other Pennsylvania rules and regulations will be employed against the medical professional who seeks and secures a medical marijuana card.  Your doctor must provide this information to the Department of Health.  If pot is found in a medical licensee’s blood, getting the medical records from their doctor (who will be discovered through the data base) is very easy.  Or, the licensee will be compelled to identify and provide their MM practitioner and his records at a Board ordered evaluation.

My experience in Pennsylvania’s heightened enforcement environment strengthens my conviction on this point. Currently every single DUI, workplace positive drug test, or other minor legal infraction is generating Board ordered mental and physical evaluations. The Boards are getting ready for a waive of intoxicated professionals.  They are gravely concerned for the well being of the Commonwealth’s citizens.  The Boards figure, get any current licensee help, stripped of their license, or at least in the Board’s radar so that when that licensee starts legally or illegally getting high and they learn of it they will be ready.   Any issue that brings the medical professional – high on legal Pennsylvania medical pot – to their respective Board’s attention will become the subject of a targeted enforcement scheme to strip their license.

 

Call me to discuss your medical condition, medical needs, and how to proceed.

 

 

 

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.

Participate In Your Professional License Defense

Occasionally my daily review of Commonwealth Court decisions discussing professional licensing board cases reveal remarkable decisions. This happened again this week. I came across a decision discussing a professional who chose to represent himself. Unfortunately, the individual had no comprehension the legal mess he was creating for himself by not employing an attorney.

Stubbornness and disgust towards the regulatory process of a licensing disciplinary action creates a blindness in unrepresented parties. These professionals almost always fail in their both legal obligations to comply with the professional licensing board procedures and hearing regulations while representing of themselves at these hearing. This weeks case is another example of this unfortunate circumstance.

Dr. Mohammed Ali Hammad received notice of an investigation and a request to inspect his medical office. The notice required Dr. Hammad to allow a Veterinarian Board professional conduct investigator to visit his office to conduct a visual inspection of medical records and office administration. Dr. Hammad refused unless he was given a copy of the formal complaint and the name of the patient who initiated the investigation. This is not permitted. All complaints are confidential in the investigatory stage. While the investigator may read the complaint, a formal copy of the complaint and the name of the complainant is not disclosed.

Each licensing scheme has similar investigatory authority requiring licensees to allow, without subpoena or formal court process, an inspection and copying of medical or other business records. Each professional board’s regulations have long established their authority to conduct investigations of their licensees through a board investigator. The investigator closed the file and notified the legal prosecution department of Dr. Hammad’s refusal to allow the office investigation consistent with the Veterinary Board rules and procedures.

The failure to comply with the basic investigation requests creates a separate cause for discipline distinct from the underlying basis of the investigation. Dr. Hammad’s refusal to allow the inspection or produce medical records escalated the cause of his eventual discipline. This case discusses the discipline against Dr. Hammad’s solely for this stupid refusal to comply with the investigation.

In a prior 2013 disciplinary petition for some insignificant issue Dr. Hammad did file an answer to the case, object to the delegation of the case to a hearing examiner, and request a formal board hearing. However, Dr. Hammad did not appear at the prior board hearing. The state proceeded with that prior discipline case without him. There the hearing examiner proposed order and adjudication found Dr. Hammad violated Veterinary Board rules. That proposed adjudication immediately suspended Dr. Hammad’s Veterinary license. The board excepted the proposed adjudication, entered a final order, to which Dr. Hammond did not appeal.

Dr. Hammond nonetheless continued to practice veterinary medicine. This case then arose when an investigatory contacted him to conduct an office visit. Here, he was specifically cited for not allowing the inspection and for failing to honor the prior Veterinary Board order. Having failed to go to the hearing again, the discipline this time was not suspending, but revoking Dr. Hammad’s license to practice veterinary medicine and ordering him to pay a $20,000 civil penalty. This time the doctor appealed to the Commonwealth Court.

The appeals court had no patience for the doctor’s argument. Claims of due process violation’s fell on deaf years. The court cites long-standing procedures that notice of hearing prior to imposition of sanctions is the sole procedural due process required. Finding that Dr. Hammad received notice and “failed to appear to engage in the process he was due does not amount to an error in the process or to a violation of his rights. ”

Dr. Hammad’s objections to Veterinary Board process and authority to discipline are also summarily swept aside. Suggesting the Board did not have authority to fine him for wasting it’s time and investigatory expenses are quickly dispensed. The board did have pity on him and reduce the civil fine from $20,000 to $15,000. Nonetheless the appeals court strenuously affirms each and every licensing board’s authority to investigate, seek licensee compliance, and enforce their rules of discipline on their licensees.

This case is another example of how important it is to have an attorney at the inception of every single professional license investigation or disciplinary matter. Timely responding to petitions and requests for hearings are not enough. Licensees do not know the administrative rules and procedural safeguards to ensure protection of their professional license and therefore their livelihood. Difficult financial times do not give rise to wholesale abandonment of one’s license. Giving up should never be the ultimate decision in any case.

Practice and Non-Practice Related Unethical Conduct

A fertile area of Commonwealth of Pennsylvania professional license prosecutions are those stemming from licensees convicted of unethical criminal conduct. Disciplinary action originates from several types of criminal conduct. The first realm is crimes of moral turpitude – theft offenses –  involving or not a professional license. The second area focuses on crimes that involve the drug act and medical fraud.  The third strand of cases  involves general criminal behavior – DUI’s — not related to the practice of the license.  The final area is general unethical criminal conduct related or not to the practice of one’s license.

The recent decision of Kirkpatrick v. The Bureau Of Professional And Occupational Affairs focuses on a criminal conviction of a sex offense not involving the license.  The prosecutor sought disciplinary action alleging the criminal conviction based upon a no contest plea to a misdemeanor sex offense violated the ethics clause of the Barber’s regulatory scheme.  No argument was made that this was a crime of moral turpitude!

Kirkpatrick was prosecuted by the State Board of Barber Examiners. The ethics clause in that scheme is slightly different than those in Pennsylvania’s twenty six other disciplinary schemes. The Barber rules state that the Board may “suspend or revoke a license if a person engages in unethical or dishonest practice or conduct, or violate any of the provisions of this act, or any rules or regulations of the board.” This limits an ethics based disciplinary action to only license related conduct.

Kirkatrick plead no contest to one misdemeanor count of indecent assault – not work related.  Procedurally, at the Board hearing the prosecution moved the no contest plea into the record, no facts thereof, and rested its case. Kirkpatrick testified as to his compliance with the probation and presented legal argument maintaining that the no contest plea was not sufficient evidence for the Board to rely upon to support a finding that he engaged in unethical conduct while practicing.

Unique to this case is that the prosecution sought discipline solely based upon the unethical conduct clause of the Board regulations. As such, the prosecutors had to prove that the ethical conduct, the criminal conviction, was related to the practice as a barber. The Commonwealth did not present any independent evidence of Kirkpatrick’s criminal conduct. As is typical, the prosecutor simply moved in the certified criminal record from the county court.

In reviewing the evidence and the case law, the hearing officer concluded the Commonwealth did not meet its burden of proof that Kirkpatrick engaged in unethical conduct relating to the practice of his license and therefore dismissed the prosecution. Timely briefs were filed and the State Board of Barber Examiners rejected the hearing officer’s proposed adjudication. Rather, the Board found that the elements of the offense to which respondent plead no contest sufficiently met the ethics clause in its regulatory scheme and revoked his license.

On appeal to the Commonwealth Court respondent claimed the Board committed an error of law. This allowed the Commonwealth Court to engage in a de novo or complete, review of the record rather than being deferential to the professional board’s imposed discipline. This significant legal strategy changed the way the Commonwealth Court was allowed to review the of Barber Board’s decision. This legal maneuver stripped the Board of its deferential decision making process. Claiming an error of law opened the legal door for the Commonwealth Court to review and interpret the statute itself rather than defer to the Board’s interpretation.

In so doing, the appellate court found that the regulatory scheme allowing discipline for unethical conduct only applied to those acts engaged in while utilizing the license. The Court rejected the prosecution’s expensive interpretation of any unethical conduct not related to the use of one’s license. It was nice to see the court objectively evaluating the statutory scheme and reigning in broad prosecutorial interpretations of its ability to discipline a licensee.

Significantly, the Barber licensing scheme is different from that of CPAs, dentists, podiatrists, nurses, and doctors, that allow for discipline based upon a conviction, plea, or some finding of guilt for unethical conduct not practice related. The appellate court reviewed each of these licensing board’s statutory provisions that authorize suspension or revocation based upon a conviction of, or guilty or no contest plea to, a particular type crime. The Court found the Barber statute did not include the same disciplinary action for non-practice conduct.

Finally, the board took to task the Barber Board’s expansive interpretation of its disciplinary authority under its regulatory scheme absent legislative guidance of specific or established standards set forth in its regulatory provisions. The court noted that the Barber Act did not set forth specific conduct or standards, found in other statutes, that could constitute the basis for discipline under the unethical or dishonest practice or conduct clause of its Act.  The court worried about the Barber Board’s expansive interpretation of its ability to exercise its discretion without legislative guidance. The court concluded that absent clear legislative instruction similar to other regulatory disciplinary schemes, the Barber Board’s power grab was improper because the legislature could not have intended to grant it such unlimited discretion in imposing discipline for any non-practice related conduct.

Call me discuss your disciplinary case.

Pharmacists’ Corresponding Responsibility

What is a pharmacist’s “corresponding responsibility”? Corresponding responsibility requires pharmacists to refuse dispensing prescriptions to people they know or have reason to know that the presented prescription 1) is a fake or illegal, 2) is written not based upon a valid medical reason, and 3) while properly secured is being consumed incorrectly or abusively. Pharmacists can lose their license for violating this corresponding responsibility!

The pain medication overdose epidemic stemming in part from properly secured medications dispensed to injured athletes of high school and college sports departments, and now society as a whole, has created huge pressure on state and federal authorities. Their secondary response (aside from prosecuting the prescription writing doctors) is to target the pharmacist and pharmacy dispensing the schedule II medication. Stripping pharmacists of their professional licenses (state and federal DEA dispensing authority) for violating their corresponding responsibility is the new battled ground in the war against drug addiction and dependence.

Federal and state prosecutors are bringing professional license disciplinary prosecutions against pharmacy owners and the pharmacists by claiming violations of their corresponding responsibility. Prosecutors seek to portray these pharmacists as mere conduits for bad doctors selling prescriptions. The process begins when a doctor is charged with selling prescriptions. Either set up and targeted in a sting or simply being caught by Federal DEA investigators, these doctors are typically criminal charged federally and go to jail. While the doctor’s license is emergently revoked during the pendency of their federal criminal prosecution, the DEA and the state pharmacy investigators turn their attention to the pharmacy which was filling (dispensing) that bad doctor’s prescriptions.  Mandatory monthly regulatory compliance audits of the same pharmacies, which pharmaceutical suppliers and health insurance prescription plans must conduct, corroborate the specific pharmacists who were filing the fake, fraudulent, or abusive prescriptions.

21 CFR §1306.04, Purpose of issue of prescription, the Code of Federal Regulations, CFR) states

(a) A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.

Pennsylvania’s Drug Act counterpart is 28 Pa. Code § 25.52, which states:

(a) A prescription for a controlled substance must be issued for a legitimate medical purpose by a licensed practitioner in the usual course of professional practice. The responsibility for proper prescribing of controlled substances is upon the practitioner but a corresponding responsibility rests with the pharmacist who dispenses the medication and interprets the directions of the prescriber to the patient.
(b) A prescription may not be issued by a practitioner to obtain controlled substances for use in his routine office practice nor for general dispensing to his patients.
(c) A prescription may not be issued for the dispensing of controlled substances listed in any schedule to a drug dependent person for the purpose of continuing his dependence upon such drugs, nor in the course of conducting an authorized clinical investigation in a narcotic dependency rehabilitation program.

What are pharmacists to look for in fake or fraudulent prescriptions? A list of red flags that present to a pharmacist reasons not to fill a prescription include:

1) Some patients, in an effort to obtain additional amounts of legitimately prescribed drugs, alter the practitioner’s prescription, to secure high drug amounts by:

a) providing a different call back number to verify the prescription,
b) calling in their own prescriptions and give their own telephone number as a call-back for confirmation, and
c) stealing legitimate prescription pads from practitioner’s offices and/or hospitals and prescriptions are written using fictitious patient names and addresses.

2) Suspicious activity includes any combination of :

a) different hand writing,
b) different color ink in the prescription,
c) cross outs or incorrect spelling of patient, doctor, or drug names,
d) incorrectly dosing in strength and quantity of controlled substances,
e) patients showing up with prescriptions of other people,
f) incorrect, old, or wrong addresses and telephone numbers,
g) photo copied prescriptions,
h) Prescriptions that look “too good” or too legible,
i) quantities, directions, or dosages differ from usual medical usage,
j) prescriptions that do not possess correct standard abbreviations,
k) prescriptions that present with textbook presentations, and
l) directions that are written in full with no abbreviations.

3) Prescriptions not written for a valid medical condition present as follows:

a) a prescriber writes significantly more prescriptions (or in larger quantities) compared to other practitioners in the area.
b) patients appear too frequently – not on a monthly basis;
c) prescribers who write prescriptions for antagonistic drugs, such as depressants and stimulants, at the same time;
d) a number of people appear simultaneously, or within a short time, all bearing similar prescriptions from the same physician; and
e) people who are not regular patrons or residents of the community, show up with prescriptions from the same physician.

The manner and means of investigating what pharmacies and which pharmacists are failing perform their corresponding responsibility when dispensing schedule II prescriptions, for which doctors, patients, and drugs, is very easy. Historical reviews of drug company delivery records to pharmacists are now being conducted on bi-monthly. Drug manufacturers are routinely reporting to the state pharmacy board’s, DEA, and state attorney general narcotics enforcement officers suspect volume changes of schedule II narcotic orders, excessive increase in volume and ordering, and conducting their own investigation of doctors who are writing the prescription.

As a pharmacist, please call me to discuss allegations of your breach of your corresponding responsibility, how to defend it, and how we can protect your federal and state DEA dispensing licenses.

Nurse License Renewal–ARD and Expungment Timing

Pursuant to § 21.29, the annual Nursing license expiration and renewal occurs on (1) April 30 in the even-numbered years, (2) October 31 in the even-numbered years, (3) April 30 in the odd-numbered years, and (4) October 31 in the odd-numbered years.
Upon receipt of the notice of the renewal, and the time period within which the application need be completed, the applicant for license renewal may complete and submit an application online or may mail a completed application form to the Board’s administrative office.
When applying for licensure renewal, a professional nurse shall, among other things, disclose any discipline imposed by a state licensing board on any nursing or allied health profession license or certificate in the previous biennial period and any criminal charges pending or criminal conviction, plea of guilty or nolo contendere, or admission into a probation without verdict or accelerated rehabilitative disposition during the previous biennial period. If the charges were expunged, then no reporting is required.
Timing of any ARD admission, completion of ARD and expungment of the ARD criminal record in conjunction with filing the renewal application is important. There are time lags when submitting any renewal application if the applicant must report being involved in the criminal justice system. Attaching court documents of ARD completion and expungment orders are important. Speeding up a criminal case to get in and out of ARD before renewal is important. If the criminal case is not over at the time of renewal, it must be reported. If it ends after renewal, and you ARD is entered and completed prior to renewal, with an expungment possible, but not granted, it must be reported.
It is very important to file an expungment application just prior to completion of the ARD so that court dates may be coordinated just after ending ARD and having an expungment granted. We have experience filing the petitions very quickly with the appropriate averments addressing licensing complications. While answering honestly and forthrightly in any renewal application is primary, there are always ways to minimize the impact of any criminal matter on a licensee’s future with ARD and expungments.

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