The complexities of representing licensed professionals in criminal matters always surprises me even though I have handled complex federal and state criminal matters for over twenty years. To effectively represent the licensed practitioner in a criminal case counsel 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 thirty six illegal actions involving drugs, prescriptions, record keeping, and other pharmaceutical issues. Section 780- 113(b) identifies which of those thirty six offenses are either felonies or misdemeanors and their respective jail penalties. Drug Act sections 780-123(b)&(c) identify a separate penalty solely targeting the licensed practitioner who is convicted of, or pleads guilty to, either a misdemeanor or felony offense set forth in 35 P.S. § 780-113(a).
When representing the licensed practitioner, 35 P.S. § 780-123(b) & (c) dictates the priority of negotiating a guilty plea to a non-Drug Act offense. An initial goal is to avoid any Drug Act criminal charge and/or conviction. 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 licenses remains active and unimpaired during these proceedings.
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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 penalty is not to exceed one year for the practitioner who pleads guilty, nolo contendere, or 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 in a drug impaired manner. 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, 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.
A recent case in which I became involved, after conviction, presents an extreme example of a criminal defense attorney who incorrectly advised a practitioner to plead guilty to misdemeanor Drug Act violations that involved record keeping and medical charting issues. Apparently, counsel also was unaware of the legal burdens and complexities of a criminal charting error or medical record forgery prosecution, which is typically what these secondary Drug Act misdemeanor cases are, counsel negotiated misdemeanor guilty pleas. Unfortunately, the attorney did not know and did not advise the practitioner that her guilty pleas would result in three consecutive automatic license suspensions.
Due to the snail’s pace of licensing disciplinary process, it took two years after the guilty pleas for the Board to commence the disciplinary process and automatically suspend the license. Due to this delay in time, the practitioner could not seek to withdraw her guilty plea due to ineffective counsel. Counsel and client were apparently scared by charged but specious felony forgery offenses. The attorney must have thought he/she did a great job by securing guilty plea offers to misdemeanors with probation.
However, my experience handling these types of pre-criminal charge investigations is that extensive meetings with state board investigators and Bureau of Narcotics Enforcement officers typically eliminate the filing of criminal charges. This avoids any licensing matter. Usually, charting errors and PYXIS drug dispensing mistakes are not criminal offenses. Counsel was unaware of this, never secured these meetings, and thought they won the case with probation and misdemeanors. WRONG!!! The entire case was handled incorrectly, all to the practitioner’s detriment and license loss.
Attorneys who dabbled in criminal law and do not handle administrative licensing matters, will unknowingly commit malpractice in advising a practitioner to plead guilty to misdemeanor Drug Act violations for probation. In many cases, the Commonwealth cannot prove criminal intent. These cases should not be brought and experienced counsel should fight them. An attorney who is unaware of the automatic license suspension provision of the Drug Act should not represent any licensed practitioner. Unfortunately this case is another example of why competent and capable counsel is necessary to handle both criminal and civil legal matters for licensed practitioners who become entangled in the criminal process.
Please call 215-665-0766 or email me to discuss your case.