License Reinstatement Time

In November, I wrote a blog about McGrath v. Bureau of Prof'l & Occupational Affairs, No. 5 WAP 2017, 2017 Pa. LEXIS 3109, at *12-13 (Nov. 22, 2017): Felony Convictions and License Reinstatement This case has now been interpreted in a second license revocation appeal. Joseph Thomas Acri, D.O., Petitioner v. Bureau of Professional…, — A.3d —- (2018). Acri, a D.O., medical license was suspended due to prescription fraud. The State Board of Osteopathic Medicine (Board), automatically suspended his license to practice osteopathic medicine and surgery pursuant to section 14(b) of the Osteopathic Medical Practice Act (Act) based upon his felony convictions under The Controlled Substance, Drug, Device and Cosmetic Act (CSA), 35 P.S. §§ 780-101—780-144. He appealed his 10 year ineligibility for license reissuance.

In McGrath, the key holding focuses on the 10 year license ineligibility after a Drug Act felony conviction. The Court there ruled that the statute evidenced irreconcilable ambiguities regarding whether an individual must wait ten years before applying for reinstatement after having his or her license suspended for violating the CSA. In so holding, the Court noted that a general provision in the Law granted the licensing board with authority to reissue a suspended license, irrespective of a time frame; the section providing for a ten-year waiting period applied to "applicants;" the section dealing with a five-year waiting period concerned the "revocation" and not the "suspension" of a license; and the provisos relating to the "restoration" or "reissuance" of a license made it unclear through which provision the licensing board should consider an application for reinstatement.

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After applying the general rules of statutory construction, the Court in McGrath determined that the statutory language remained ambiguous, and because the Law was penal in nature, the court construed it strictly and in favor of the individual. Therefore, the court reversed the licensing board's order to the extent it imposed a license suspension for a mandatory period of not less than ten years and concluded that the licensing board should process any application for reissuance in accordance with the general, discretionary provision of the Law granting it the power to reissue a suspended license.

McGrath's nursing license was automatically suspended – not revoked – when she was convicted of violating the Drug Act (it seems a felony). McGrath petitioned for reinstatement of her nursing sometime shorter than 10 years. McGrath argued the Nursing Act's provision for reinstatement allowed for the Board to grant such application within its discretion at any time, not earlier then 10 years stated under a separate provision of the Nursing Act. The Court agreed, stating it is within the Board's discretionary provision of the Law granting it the power to reissue a suspended license.

Acri argued the same logic and reasoning applied to the statutes and Board regulations applicable to license doctors under the Osteopathic Act, 63 P.S. § 271..2 and 14a. Acri maintained the Board's order automatically suspending his licenses for a period of not less than ten years was in error. The Court agreed! Importantly, at oral argument before the appellate court, the Board conceded that there were no statutory time constraints placed upon Petitioner and that he could apply for reinstatement or reissuance when he so desires. This is the ruling of McGrath!

The Acri Court, however, admonishes the Osteopathic Board and all other licensing Boards to implement this procedure. "However, this concession does not alter the fact that the Board's order strongly suggests otherwise, or is at least ambiguous. Although we have no doubt that, in the future, the Board will fulfill its promise to interpret and apply its order in the way that it said it would, this Court nevertheless has an obligation to address the legal issue presented to it."

Here the court is saying to the licensing boards, fix your Board disciplinary orders and remove the time period of disqualification for petitions for reinstatement. The Court's language is very instructive. "Therefore, pursuant to our decision in McGrath, we modify the Board's order insofar as it imposed a mandatory five or ten year suspension on Petitioner's license. In accordance with this memorandum opinion, any reissuance request from a suspension for violating the CSA shall be processed and reviewed under section 15(c)(6) of the Act."

These two decisions continue in the process of allowing for license reinstatement or reissuance sooner, and not under and specific time period of preclusion. The difficult legal issue now will be that an appeal of any board order denying license reinstatement for felony Drug Act conviction will be based upon an abuse of discretion standard and not an error of law standard. The abuse of discretion standard is viewed in light of the general rule that all licensing boards are charged with the responsibility and authority to oversee the profession and to regulate and license professionals to protect the public health and safety. Barran v. State Board of Medicine, 670 A.2d 765, 767 (Pa .Cmwlth.1996), appeal denied 679 A.2d 230 (Pa.1996).

An abuse of discretion is generally defined as a misapplication of the law, a manifestly unreasonable exercise in judgment, or a final result that evidences partiality, prejudice, bias, or ill-will. Allegheny County v. Golf Resort, Inc., 974 A.2d 1242 (Pa.Cmwlth.2009); Pastorius v. State Real Estate Commission, 466 A.2d 780 (Pa.Cmwlth.1983). When reviewing the exercise of discretion by an administrative agency, the Court may not, in the absence of bad faith, fraud, capricious action or abuse of power, inquire into the wisdom of the agency's action or into the details or manner of executing agency action. Slawek v. State Board of Medical Education and Licensure, 526 Pa. 316, 586 A.2d 362 (1990); Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 109 A .2d 331 (1954). Appellate courts may interfere in an agency decision only when there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions. Although the Commonwealth Court is required to correct abuses of discretion involving penalties and sanctions imposed by a licensing board, the appeal court may not substitute its discretion for that of the board, which is an administrative body endowed with expertise in matters subject to its jurisdiction. Burnworth v. State Board of Vehicle Manufacturers, Dealers, and Salespersons, 589 A.2d 294 (Pa . Cmwlth.1991) .

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