The Pennsylvania's Criminal History Record Information Act (CHRIA) 18 Pa.C.S.A. § 9124 controls how public and private entities use Pennsylvania criminal arrest and conviction records. CHRIA controls how potential employers and Pennsylvania's licensing boards may use prior criminal convictions in application and disciplinary matters. CHRIA also governs Pennsylvania's expungement process. CHRIA allows private lawsuits for illegal dissemination of expunged criminal histories. Two recent developments involving CHRIA are noteworthy.
My licensure defense practice includes representing attorneys facing disciplinary process in Pennsylvania. Attorneys licensed by the Pennsylvania Supreme Court - whether practicing in Pennsylvania or not - are subject to discipline the same as other Pennsylvania licensees. Criminal conduct and egregious unethical conduct expose attorneys to prosecution for violating the Rules of Professional Conduct. Attorney discipline in Pennsylvania's attorney regulatory system is more complex that other licensees. The Disciplinary Board of the Supreme Court of Pennsylvania is the court in the Supreme Court in which disciplinary actions are filed. The Pennsylvania Rules of Professional Conduct govern the practice of law in the Commonwealth. These Rules set forth the minimum ethical standards for the practice of law and constitute a set of Rules that all attorneys must follow. These Rules were originally promulgated by the Supreme Court of Pennsylvania on April 1, 1988.
In my last blog I wrote about real estate applicant who failed to disclose on his Real Estate Commission application a criminal conviction. Upon discovery the Commission revoked his license and the Commonwealth Court approved of the action. Today's blog involves the exact opposite result for one of my physician clients. On October 14, 2014 Dr. Christopher Elder, a Texas licensed physician, submitted an application to Pennsylvania's Medical Board for a license to practice medicine and surgery. Unlike Hawes, Elder disclosed a 2010 federal conviction for aiding in abetting and conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. On April 2, 2015 the Pennsylvania Medical Board provisionally denied Elder's application. The Board maintained the Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), authorized licensure denial because of Elder's felony conviction. The Board also denied licensure, maintaining Elder lacked good moral character and did not possess the requisite training and experience. Elder appealed the conditional denial of licensure. At the hearing before a the Hearing Officer Elder presented his credentials, training and experience, the facts of the criminal case, and character evidence. Consistent with prior Pennsylvania Supreme Court precedent, Elder maintained the criminal conviction was too remote for the Board to determine such affected his current ability to do his job lawfully. Elder's mitigating evidence established his minor role in the criminal case and his rehabilitation since release from prison. The Hearing Officer weighed Elder's witness' credibility and Elder's mitigating evidence. He ruled in Elder's favor, stating that while Elder's criminal conduct demonstrated moral turpitude at the time of its commission, Elder presented persuasive evidence of his rehabilitation and present moral fitness to practice medicine. A period of probation was required to allow Elder the ability to secure appropriate supplemental educational classes for competency.
On February 28, 2019 Commonwealth Court issued a decision reversing a Pennsylvania Medical Board order reprimanding a physician. The order reprimanding the physician stems from a medical malpractice case. The patient died and the Medical Board accused the physician of practicing below the standard of care. The physician objected to the public reprimand placed on his license. The Commonwealth Court agreed, striking the discipline.
Doctors beware. Government prosecutors are fighting the opiate epidemic on many fronts. Now more than ever local police in coordination with DEA and Commonwealth Attorney General drug enforcement investigators are investigating doctors for writing unreasonable amounts of scheduled narcotic prescriptions.
The PHMP, it's caseworkers, and director Kevin Knipe's treatment of licensees is a major topic of my blogs and website. I routinely field inquiries regarding false positive drug tests, chain of custody issues, and other PHMP claimed violations. How do I get out of the PHMP is the most consistent PHMP question.
How do you get out of Pennsylvania's Professional Health Monitoring Program ("PHMP"). The PHMP administers both the Voluntary Recovery Program "VRP" and the Disciplinary Monitoring Program ("DMU"). As a licensed professional voluntarily enrolled in the PHMP - VRP - or forced into the DMU, you agreed to PHMP terms to keep working. You have been compliant for over three years. Now you think the program time is up!