I am attorney Richard Hark, and the complexities of representing licensed professionals in criminal matters always surprises me, even though I have been handling these cases for over 20 years.
To effectively represent licensed practitioners in criminal cases, a lawyer must fully understand the collateral consequences of a criminal conviction under the Pennsylvania Drug Act, 35 P.S. § 780-113 (a).
Two provisions of the Drug Act, 35 P.S. §§ 780-123 (b) &(c), are especially important to licensed professionals.
The Drug Act § 113(a) lists 36 illegal actions involving drugs, prescriptions, record keeping, and other pharmaceutical issues. Section 780- 113(b) identifies which of those 36 offenses are felonies or misdemeanors and their respective jail penalties. Drug Act sections 780-123(b)&(c) identify a separate penalty solely aimed at licensed practitioners convicted of, or pleading guilty to, misdemeanors or felony offenses set forth in 35 P.S. § 780-113(a).
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For licensed practitioners, 35 P.S. § 780-123(b) & (c) means that negotiating a guilty plea to a non-Drug Act offense is a priority. An initial goal, of course, is to avoid any criminal charge under the Drug Act in the first place. A secondary goal on cases involving drugs is to secure misdemeanor graded Drug Act violations over felonies.
The importance of Drug Act convictions is set forth in § 780-123(a), (b)&(c). Subsections (a) and (b) authorize the practitioner's licensing board to revoke or suspend the practitioner's license upon a conviction of any criminal offense, with reasonable notice and an opportunity to be heard.
The disciplinary process commences with a Rule to Show Cause and hearings scheduled in the future. The practitioner's license remains active and unimpaired during these proceedings.
Under § 780-123(c), the licensing board shall, upon petition, automatically suspend the professional's license. This occurs without notice to the practitioner and allows only for a penalty/ mitigation hearing. The automatic suspension is not to exceed one year for the practitioner who pleads guilty or nolo contendere, or who has been convicted of a misdemeanor under the Drug Act.
Subsection 780-123(c) was established to allow for automatic suspension of the practitioner who pleads guilty to possessing a controlled substance or paraphernalia. The person is a drug user whom the legislature does not want practicing their profession while drug-impaired.
This is a simple understanding of the Drug Act's purpose. The automatic suspension may be stopped only if the Drug Act conviction is for personal use of a controlled substance and the practitioner agrees to participate for 3-5 years in the PHMP impaired professional program. If the impaired professional does not comply in all respects with the PHMP program, the stay of any suspension under section subsection 35 P.S. §780-123(c) will be vacated.
What most attorneys do not understand is that §780-123(c) also applies to the practitioner convicted of any type of record keeping mistake, patient charting errors, or failure to conform to a standard of practice that is charged as a violation of the Drug Act.
This is the kicker. If there is a guilty plea to any of the enumerated, but less known subsections of 780-113(a) — for example (a)21 (refusing to make entries in a medical record as required) or (a)28 (providing false or incorrect or omitting any material information on a medical report) — the practitioner's Board shall automatically suspend, but not revoke, a practitioner's license for up to one year for each count of each guilty plea. This action is the same even though no drug use, theft, diversion, and/or impairment is alleged, charged, or upon which a conviction is secured.
Under the §780-123(c) suspension process, the practitioner will not be afforded a due process hearing prior to the Board action suspending the license. The practitioner will be given notice of the suspension and then must petition for a hearing on the appropriateness of the already determined discipline. During this time, the practitioner must not practice their licensed profession.
The practitioner should file a petition to lift the automatic stay, setting forth the basis that the automatic suspension provisions of 35 P.S. §780-123(c) are not applicable. The practitioner must also ask for an expedited mitigation hearing.
Here, the practitioner stipulates to the criminal conviction and the application of the automatic suspension under the Drug Act. Then, the practitioner must, through able counsel, put into the record extensive character and employment history evidence and explain the criminal offense. The practitioner must effectively argue why the Board's exercise of its discretion and its term of automatic suspension, typically the maximum allowed, is abusive and not appropriate.
Case law requires the licensing board explain a decision of a maximum discipline. Typically this is hard for the Board to do and requires a modification of the trigger finger, snap maximum suspension decision.
When the Drug Act conviction does not involve any personal use of narcotics and there is no evidence of a drug or alcohol addiction causing an impairment (see my other blogs about the PHMP), compelling reasons to reduce a maximum suspension are always present. This is when practitioners need competent legal counsel that is uniquely aware of the inter-relationship between Drug Act convictions and licensing boards' administrative cases.
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