A Major Constitutional Decision from the Pennsylvania Supreme Court

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

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

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

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

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

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

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

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

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

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

Call me to discuss your case.

What is and is not Psychology?

In preparation for recent hearing, I came across an extremely complex legal topic. The issue is to what extent of can licensees under the Pennsylvania State Board of Social Workers, Marriage and Family Therapists and Professional Counselors  practice their profession short of practicing psychology.

What are these practices?

  • “PRACTICE OF MARRIAGE AND FAMILY THERAPY.” The professional application of psychotherapeutic and family systems theories and techniques to the evaluation, assessment and treatment of mental and emotional disorders, whether cognitive, affective or behavioral. The term includes the evaluation and assessment of mental and emotional disorders in the context of significant interpersonal relationships and the delivery of psychotherapeutic services to individuals, couples, families and groups for the purpose of treating such disorders.
  • “PRACTICE OF PROFESSIONAL COUNSELING.” Includes, to the extent compatible with a practitioner’s education and professional competence, all of the following:
    • (1)  The application of principles and practices of counseling, mental health and human development to evaluate and facilitate human growth and adjustment throughout the life span and to prevent and treat mental, emotional or behavioral disorders and associated stresses which interfere with mental health and normal human growth and development.
    • (2)  The evaluation and assessment of normal and abnormal mental, emotional, social, educational, vocational, family and behavioral functioning throughout the life span; individual, group, family counseling and psychotherapy; crisis intervention, career counseling and educational and vocational counseling; functional assessment of persons with disabilities; and professional consulting.
    • (3)  Professional counselors’ utilization of verbal and nonverbal approaches and specialization in the use of arts-based therapeutic approaches, such as art, dance, music or drama, to accomplish treatment objectives.
  • “PRACTICE OF SOCIAL WORK.” Offering to render or rendering a service in which a special knowledge of social resources, human personality and capabilities and therapeutic techniques is directed at helping people to achieve adequate and productive personal, interpersonal and social adjustments in their individual lives, in their families and in their community or holding oneself out to the public by any title or description of services incorporating the term “social worker” or using any words or symbols indicating or tending to indicate that one is a social worker, except as otherwise provided by this act.

Conversely, the Professional Psychologists Practice Act, 63 Pa. Cons. Stat. § 1203(3) also provides significant guidance.  The Psychologist Act creates a separate exemption for qualified members of other recognized professions including, but not limited to Social Workers, Marriage and Family Therapists and Professional Counselors. This section  1203(3) of the Psychologists Act states:

Nothing in this act shall be construed to prevent qualified members of other recognized professions, including, but not limited to, clergy, drug and alcohol abuse counselors, mental health counselors, social workers, crisis intervention counselors, marriage and family therapists, pastoral counselors, rehabilitation counselors and psychoanalysts, from doing work of a psychological nature consistent with the training and the code of ethics of their respective professions or to prevent volunteers from providing services in crisis or emergency situations. This exemption applies only to the practice of the respective listed profession.

So, what is practicing Psychology?  “Practice of psychology” means offering to render or rendering to individuals, corporations, institutions, governmental agencies, or the public for remuneration any service involving the following:

(i) The application of established principles of learning, motivation, perception, thinking, and emotional relationships to problems of personality evaluation, group relations, and behavior adjustment. The application of said principles includes, but is not restricted to, counseling and the use of psychological methods with persons or groups with adjustment problems in the areas of work, family, school, and person?-1 relationships; . measuring and testing· of personality, intelligence, aptitudes, and emotions, and offering services as a psychological consultant.

(ii)(a) “Measuring and testing,” consisting of the psychological assessment and evaluation of abilities, attitudes, aptitudes, achievements, adjustments, motives, personality dynamics and/or other psychological attributes of individuals, or groups of individuals by means of standardized measurements or other methods, techniques or procedures recognized by the science and profession of psychology, (b) “psychological methods,” consisting of the application of principles of learning and motivation in an interpersonal situation with the objectives of modification of perception and adjustment, and requiring highly developed skills in the disciplines, techniques, and methods of altering through learning processes, attitudes, feelings, values, self-concept, personal goals· and adaptive patterns, ( c) “psychological consulting,” consisting of interpreting or reporting upon scientific fact or theory in psychology, rendering expert psychological opinion, psychological evaluation, or engaging in applied psychological research.

This definition contains numerous elements, which can be broken down as follows: (1) the practitioner offers to render or renders (2) to individuals, corporations, institutions, governmental agencies, or the public (3) for remuneration ( 4) any service involving one or more of the following:

(a) the application of established principles of learning, motivation, perception, thinking, and emotional relationships to problems of personality evaluation, group relations,, and behavior adjustment, which established principles include measuring and testing of personality, intelligence, aptitudes, and ’emotions, and offering services as a psychological consultant; or (b) psychological assessment and evaluation of abilities, attitudes, aptitudes, achievements, adjustments, motives, personality dynamics and/or other psychological attributes of individuals by means of standardized measurements or other methods, techniques or procedures recognized by the science and profession of psychology; or (c) “psychological consulting,” consisting of interpreting or reporting upon scientific fact or theory in psychology, rendering expert psychological opinion, psychological evaluation, or engaging in applied psychological research.

In applying these definitions to the exemptions, 49 Pa. Code § 41.7 incorporates a statement of policy that provides guidelines for determining whether a given group qualifies as a “recognized profession” for the purposes of section 63 P .S. § 1203(3). Those guidelines read as follows:

(1) The group’s activity and focus must be based on an identifiable body of theoretical knowledge which, although it may include areas of coII1I11on knowledge shared with psychology, is demonstrably different, in the aggregate, from the body of theoretical knowledge underlying psychology.
(2) The group must regulate entrance into professional membership by means of standards of knowledge, training and proficiency generally accepted by the profession with which it identifies.
(3) ) . The group’s activity must be guided by generally accepted quality standards, ethical principles and requirements for an independent profession.
(4) The group must exhibit the ordinary accoutrements of a profession, which may include, but are not limited· to, professional journals, regional and national conferences, specific academic curricula and degrees, continuing education opportunities, regional and national certification and awards for outstanding practice within the profession.

More importantly, Section 1203(3) does not absolving these other licensed professionals from the prohibition against holding themselves out to the public by any title incorporating the words “psychological,” “psychologist” or “psychology” without first obtaining a license to practice psychology pursuant to the act.  The blanket advertising limitation set forth in section 1203 states:

It shall be unlawful for any person to engage in the practice of psychology or to offer or attempt to do so or to hold himself out to the public by any title or description of services incorporating the words “psychological,” psychologist” or “psychology” unless he shall first have obtained a license pursuant to this act, except as hereinafter provided:

Pursuant to the Ethical Principal 4(b) of the board’s regulations, “only psychologists licensed by a state board of psychologists examiners may be listed under the heading of psychologists in the yellow pages of the telephone directory.” 49 Pa. Code § 41.61.

Dezen v. Bureau of Prof’l & Occupational Affairs, 722 A.2d 1135 (Pa. Commw. Ct. 1999) discussed this issue. Dezen, a licensed social worker advertised in the Yellow Pages his ability to provide psychological counseling and similar services. The board found that he was not licensed as a psychologist and could not advertise his testing services as such.  The case law clearly precludes any other licensed professionals from holding themselves out to the public by any title or description of services incorporating the term using any words or symbols indicating portending to indicate that he or she his license or authorized to practice in any other capacity send their specific licensed professional.

Call me to discuss your case.

 

PHMP — Pennsylvania — How It Really Works

Here is an email I received this week

RN w a PA license started pnap program 4 yrs ago and they will not let me out if the program. I fulfilled all the requirements and I’m over the amount of time stated in my contract. Every months they come up w something new and threaten to add another year to three. They also threaten if I contact a lawyer I can kiss my license goodbye and I truly believe they have the power to do anything at this point.

They treat me as if I have a substance abuse and test me relentlessly and at one point bc of ice n snow I missed testing they cut my hair and did hair analysis which was negative. In four years I have never had a positive test. And that’s w 1,2,3,4 times testing. Month. I was supposed to be released in November 2016 I missed a call in the day I was leaving for the beach. Packing for 6 kids 10yo and younger for a week distracted me a bit. That is when they threatened to add 3. More yrs for noncompliance. I’m already over my time! Yesterday I could not make a test bc 3 of my kids were vomiting and Had high fevers I could not drag them out w out torturing them. So again I’m getting threatened w more time ands or never seeing my license again. I went I to this program thinking they were here to help me. Obviously they are here for the $$ and to make near impossible to complete the program. I’m stuck. They have taken all the money I have. No I’m finding out it’s not the pnap making the calls it’s the testing company.

This is email presents legal issues about which I receive calls every week.  This email is reflective of the PHMP and PNAP, how the treat their enrollees in the program.  Read this email again before signing any documents and call me.

More importantly, understand the exploding opiate addiction pain medication problem our cities, states, rural areas, and country is facing.  Stepped up offering and then enforcement of the impair professional program, and all of its terms and conditions, is reflected in the statistics a recent news article discussed. Video of ABC News Investigation

However, the statistics cited int he article,73% of all disciplinary cases are for drug and impairment issues, only reflects the stepped up threats, coercion, and intimidation the program administrators are using in convincing people to go into the program that some do not really need.  Read my many other blogs discussing how single offense DUIs, Public Drunkenness, and other minor infraction are brought tot he Board’s attention, resulting in PHMP and PNAP “Letters of Concern” being sent to professionals and scaring them into the program.

Call me to discuss your case.

 

 

 

 

QUESTIONS THE PROFESSIONAL SHOULD ASK THEMSELVES BEFORE ENTERING PENNSYLVANIA’S PHMP

Should you expect your VRP case worker’s cooperation when you complete the PHMP (whether voluntary or not) three year program? Will your PMP, PNAP, SarPH case worker be your advocate? Will the program finish within the three year time? When will your licensing board hear your reinstatement application? These are all important questions for any professional considering Pennsylvania’s Voluntary Recovery Programs.

The answers to these questions constitute the basic assumptions each professional will posses and seek to understand prior to entering the PHMP. Whether doctor, nurse, pharmacist, or any other professional, understanding the full extent of your professional recovery program (they are almost all the same) prior to signing the enrollment contract is paramount to managing your expectations and experiences in the PHMP. See this link for the terms and conditions. http://www.dos.pa.gov/ProfessionalLicensing/OtherServices/ProfessionaHealthMonitoringPrograms/Documents/terms_and_conditions_for_participation.pdf

The first issue is how long is the PHMP. If you think your personalized PHMP will be only three years from the date you sign the VRP contract, you are wrong. See the terms and conditions link. http://www.dos.pa.gov/ProfessionalLicensing/OtherServices/ProfessionaHealthMonitoringPrograms/Documents/terms_and_conditions_for_participation.pdf.

Upon signing and submitting the contract to your case worker, your compliance is necessary. (You have now admitted an addiction which causes an impairment to practice safely. See my other blogs on why not to do that.) The three year period only commences upon your licensing board’s approval of that contract–thus becoming a board ordered agreement that they can enforce. However, what your PHMP caseworker intentionally omits telling you is that it takes 3, 6, or maybe 9 months for your licensing board to approve your enrollment contract. As such, the three-year term of the PHMP is really 39, 42, or 45 months. This becomes excruciatingly long.

Secondly, every professional expects their PHMP caseworker to advocate for their return to practice. Each enrollee hopes to have someone assist them navigate the complexities of the drug testing, treatment, and evaluations. Within several months of PHMP enrollment, whether your contract has received board approval, reality clashes with expectations. Every participant with whom I have spoken quickly realizes that “their advocate” — their PNAP or PHMP caseworker, is merely an enforcement officer. This enforcement officer does not help, but merely enforces the terms of the contract of sobriety into which you the professional has entered.

Your PNAP, PMP, PHMP, VRP case worker demands payment, drug testing, re-drug testing, and all medical records. They require retests and timely answers to all questions. East case worker will be the first to suggest a violation of the program and seek automatic and lengthy extensions for failing drug test for other program protocols. Your advocate becomes your violator, cop, the PHMP enforcer – not an advocate for you.

Lastly, if you have been drug free for 36 to 45 months, you the professional would think your compliance warrants license reinstatement without restriction. However, there are several additional steps in the process of which the case worker never discloses until the three year time period has run, thus delaying reinstatement longer.

Each participant must pass fitness for return to work evaluations. These evaluations delay full reinstatement for significant time periods. Case workers only schedule these evaluations at the end of the programs. A mix of participant and expert scheduling coordination, report generation and final approval by PHMP supervisors extent your PHMP enrollment many more months.  Thereafter, petitions to the board for reinstatement must be filed, for which hearings and decisions could take additional months. All the while, the professional must remain compliance in the program. None of this is explained to the unknowing and scared PHMP participant.

It is at the end of the PHMP 3 year time period when case worker manipulation is rampant. Specious drug test violations magically show up. Chain of custody protocols become suspicious. Allegations of participant “no showing” or lost samples for drug tests are routine. Case workers begin to unilaterally extend the PHMP time period by refusing to schedule fitness for work evaluations. Refusing to advocate for you the professional becomes the final delay tactic of choice.

If you have been in the program for drug and alcohol use and now you’re being required to undergo a mental health evaluation for no reason, they will seek to extend your enrollment for noncompliance. If you received drug treatment, but were not told you had a mental health diagnosis (anxiety otherwise unspecified) and you have not received any mental health treatment for three years because no one suggested it, recommend it, or require it, your case worker will attempt to delay your fitness for return to work for now a mental health evaluation. These are examples of your advocate refusing to advocate on your behalf.

Legal counsel is necessary to insure that the board understands the arbitrary and capricious nature of case workers’ lack of support, advocacy, or basic assistance in helping you get through the program. Frayed nerves, empty wallets, and frustration rule the professional PHMP participant’s day. Please call me to discuss missed drug tests, positive drug tests, or delayed scheduling of fitness to return to work evaluation. Please call me to discuss the abusive, obnoxious and demeaning caseworker treatment of you in your attempt to get back to your professional life. Lets file that petition for reinstatement and get you out of the PHMP in the time they suggested.

The PHMP program is only available to the following licensees:

Chiropractic
Dentistry
Medicine
Nursing: RN Law and PN Law
Occupational Therapy
Optometry
Osteopathic Medicine
Pharmacy
Physical Therapy
Podiatry
Psychology
Social Work, Marriage and Family Therapists and Professional Counselors
Speech-Language Pathology and Audiology
Veterinary Medicine

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