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.
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.
Pennsylvania's Medical Marijuana Act sets forth a very specific administrative appeal process addressing prescribers and card holders subjected to a disciplinary action. Within the Department of Health, Department Office of Medical Marijuana, violations of the Act shall be prosecuted by the Office of Legal Counsel. Evidentiary rules and administrative practice will be governed by the General Rules of Administrative Practice and Procedure. ("GRAPP")
An administrative appeal of any department action affecting your medical marijuana card or license to prescribe must be taken in writing within 30 days after the individual or person to whom the action of the offices directs or issues a notice of the action. An untimely appeal will be deemed an admission of the violation of the Act and may result in dismissal of any late appeal with prejudice. 28 Pa.Code § 1249.39.
Failure to answer a disciplinary action in a formal proceedings will result in a default judgment being entered and the allow the Department of Health to refuse to grant a late hearing request. All documents must be filed in writing with the clerk, with the license or permit number, as well as the identity of an individual filing the petition and their mailing address. Failure to comply with these simple pleading requirements may result in the Department rejecting any filing.
A party shall be represented by an attorney at all stages of the proceedings. A party includes a corporation. The attorney must be in good standing and admitted to practice before the Pennsylvania Supreme Court or upon motion having been admitted in another jurisdiction and admitted in Pennsylvnaia pro hac vice.Proper pleading practice includes filing formal answer within 30 days of receipt of the order to show cause, including legal objections and any denial of facts averred in the original order to show cause. Affirmative defenses, admissions or denials must be stated clearly and concisely. Please call me to discuss your medical marijuanna card and any displinary action you may face.
Many professionals consume alcohol in a moderate and temperate manner. Reasonable, social alcohol consumption that results in a driving under the influence criminal charge is an unfortunate event. The criminal consequence and interactions with the justice system are necessary impediments to excessive drinking.
My blogs focus on the intersection of life and your professional license. A significant public policy debate is raging about medical marijuana, recreational marijuana usage, and the licensed professional. This is you - nurses, pharmacists, doctors, or any other Pennsylvania or New Jersey licensed professional. I recently weighed in on this conversation in an article published in the National law Journal, American Law Media's website. The Professional Licensee and Medical Marijuana: Just Say No! (hit the 411 Link on my web page). 411 Medical Marijuana and the Licensee On August 10, 2018, a federal judge issued a decision affirming an employer's ability to discipline and terminate an employee who fails an employment related drug test for medical marijuana. The employee, a forklift operator, with a known prior work-place injury was taking prescription opiate medications, was asked to take a drug test as a condition of continued employment. The employer compelled a drug-free workplace consistent with federal occupational health and safety work conditions. The employee indicated he would fail the drug test because he ingested prescription medicine, specifically medical marijuana. The employee argued the decriminalization of medical marijuana under New Jersey's Compassionate Use Medical Marijuana Act ("CUMMA") and Law Against Discrimination ("LAD") compelled the employer to make an accommodation. The employer denied an accommodation, terminating the employee for refusing to take the drug test. (The same result would occur if the employee tested positive for marijuana.) The employee sued in federal court. The court determined neither CUMMA nor the Law Against Discrimination takes priority over an employer's drug free work place rule. The employer was merely enforcing OSHA's and the federal criminal law regarding drug free work places. Here, the employer argued, in the work place the federal supremacy clause voided states' laws allowing for medical marijuana and the decriminalization of recreational marijuana usage. New Jersey and Pennsylvania are at will employment states allowing for employees to be fired for good reason, bad reason, or no reason at all. The current federal and state versions of the American With Disabilities Act have created a legal landscape in which it is unlawful to discriminate against current or potential employees who suffer from a disability. These laws seek to level the employment hiring playing field - a disability should not preclude hiring in a job they could do. These employees can still be fired or not hired if the extent of the disability precludes the performance of the particular employment. In this case, the court evaluated the fork lift operator's claim under the four prong test determining that a disability was present, medically based, and constituted a physical handicap. The court determined the employee was qualified to perform the essential functions of the job and that his handicap should not preclude him from enjoying equal access to employment due to discrimination. However, the court framed the issue thereafter as distinguishing a treatment (medical marijuana) from a disability (needing a wheelchair). In this case, as with all medical marijuana cases, the employer has a drug-free workplace condition of employment. The court was tasked with determining the legality a drug-free workplace as a condition of employment regardless of the medical treatment needs of the employee. New Jersey's criminal code 2C:35-18 and administrative law 24:6I-6(a) eliminate criminal and civil/administrative penalty for medical marijuana use. However, most states also allow employers to not accommodate the medical use of marijuana in the workplace. As well federal law still prohibits the use and possession of marijuana. Unfortunately, medical marijuana cases involve this singular unique determining factor; existing federal law stating marijuana is illegal. This is the distinguishing factor between going to work under the influence of prescribed opiate painkillers and prescribed medical marijuana. This case involves an individual operating a forklift. Many of my clients are nurses, pharmacist, surgeons, realtors, engineers, respatory therapists, radiology technologist, pulmonary specialist, massage therapist, ophthalmologist, optometrists, dermatologist. Each of these professionals will not be permitted to work in an environment where their professional judgment, skills, and capability is compromised as a result of illegal use of marijuana or the necessary medicinal use of marijuana in a therapeutic dose as a result of suffering from a medical condition that is not able to be treated with any other medication.
Last Week I published an article about Medical Marijuana. Just Say NO. https://www.phila-criminal-lawyer.com/Attorneys/Richard-Q-Hark.shtml
I routinely write about the overbearing criminal conduct and disciplinary environment that currently exists for Pennsylvania licensees. On May 10, 2018 Commonwealth Court decided Levengood v. BPOA. This cases involves a car salesperson's license and the excessive discipline this Board handed down. In this case, along with several other recent Commonwealth Court decision, the court rejects as excessive and manafestly unreasonable discipline that goes too far - such as revoking licenses and imposing civil penalties - when the facts do not warrant it.