The Professional License Defense Process
A professional license investigation is generally initiated by Pennsylvania’s Bureau of Professional and Occupational Affairs after a complaint has been filed. Understanding the professional license defense process can help not only provide a sense of understanding during a difficult period, but also help you avoid pitfalls that may limit your defenses.
At The Law Offices of Brian E. Quinn in Philadelphia, Pennsylvania, we want you to understand the processes that affect you. For more information, contact our firm today to schedule a consultation. Call 866-657-7318.
Nurses Required To Report Arrests
In 2015, Pennsylvania passed legislation requiring RNs, LPNs, CRNPs, LDNs and CNSs to notify the State Board of Nursing of pending criminal charges, criminal convictions, including a Guilty Plea, Probation without Verdict and Accelerated Rehabilitation Disposition (ARD) as well as disciplinary action taken by other states/jurisdictions.
Pending criminal charges and criminal convictions must be reported within thirty (30) days of the action.
Discipline taken against a license in other states/jurisdictions must be reported within 90 days.
Failure to make a timely report of the above may result in imposition of a disciplinary sanction. It is important to consult with a health care licensing attorney prior to reporting any criminal charges so you are informed as to what the disciplinary process will be.
All Health Care Workers Are Required To Report Sanctions And Criminal Proceedings
in 2018, Pennsylvania passed legislation requiring any person holding a license, registration, certificate or permit with the Licensing Board or Commission under the Bureau of Professional and Occupational Affairs in the Department of State to report the following within the thirty (30) days:
- A disciplinary action taken against the licensee by a licensing agency of another jurisdiction.
- A finding or verdict of guilt, an admission of guilt, a plea of nolo contendere, probation without verdict, a disposition in lieu of trial and/or Accelerated Rehabilitation Disposition (ARD) of any felony or misdemeanor offense.
In my experience, many criminal attorneys are not familiar with this area of the law. If you have been arrested, it is important to consult with a professional licensing attorney who can work with, or assist, your criminal attorney to minimize any effect a criminal disposition will have on your health care license.
In many cases, what is considered a good result in a criminal case may not be such a good result if it subjects you to a professional license suspension or a probationary sentence on your health care license.
Investigations
Following a complaint, investigators generally are sent to gather information about the licensed professional. They may appear unannounced at your office or even your home. While their tone may seem friendly and their questions nonthreatening, it is important to know what to do if you are confronted.
While investigators may assure you they are just interested in gathering the facts, you need to be aware that anything you say to them could be used in building a case against you. The most important thing for you to know is that you do not have to speak to investigators. The best course of action is to politely decline to speak to them until you have consulted with an attorney. We never allow our clients to speak to an investigator unless we are present. Contact our medical license lawyers before you unwittingly make incriminating or damaging statements.
The Bureau of Professional and Occupational Affairs has several powers and responsibilities related to your professional license. To learn more, read our BPOA article.
Order Of Immediate Temporary Suspension (ITS)
The law permits each health care board to temporarily suspend a health care worker’s license under circumstances as determined by the Board to be in immediate and clear danger to the public health and safety. This would typically occur when a health care worker is arrested on serious charges or has suffered from a health or mental condition that immediately renders them unable to safely practice. This often happens after a drug overdose.
If an “ITS” is granted, the health care worker is entitled to a preliminary hearing within thirty (30) days. The hearing is conducted by the Board or Office of Hearing Examiners in Harrisburg. At that time, the preliminary hearing shall be limited to evidence on the issue on whether there is a prima facie case to support the temporary suspension of the health care worker’s license.
A prima facie case exists when the commonwealth establishes a reasonable, reliable basis for concluding that the facts justifying the suspension are accurate.
You are entitled to present evidence at the preliminary hearing and have an attorney present who can cross-examine witnesses, inspect physical evidence, call witnesses, and offer any evidence and testimony.
If the Board or Hearing Examiners finds a prima facie case is not established, your license and other authorizations to practice the profession by the Board will be immediately restored. If a prima facie case is established, the temporary suspension shall remain in effect until vacated by the Board, but in no event longer than one hundred eighty (180) days, unless otherwise ordered or agreed to by the parties.
Mental And Physical Examination
Pennsylvania law allows professional boards such as the Nursing Board and the Medical Board, upon a showing of probable cause, to compel a licensee to submit to a mental or physical examination by a physician or a psychologist approved by the Board. Failure of the licensee to submit to such examination when directed by the Board shall constitute an admission of the allegations against him or her, and the Board may enter a final order suspending a licensee without a hearing. The Board may rely solely on unsupported allegations in determining whether probable cause exists. The Board may also rely on a criminal conviction for driving under the influence or a violation of the Controlled Substances Act. In many situations, the licensee will receive an order compelling a licensee to attend a mental and physical examination before a physician. If you receive this document, you should immediately contact us before you speak to the prosecutor who applied to the Board for this order.
We will review the order compelling a mental and physical examination with you, discuss your rights, review all relevant medical records and prepare you for the examination.
Negotiations
If, after the investigation period, your case warrants further study, you may be able to meet with a representative of the bureau to talk about a negotiated sanction. These negotiations can be both advantageous and detrimental. In one respect, a negotiation generally leads to an admission of unprofessional or unlawful behavior. However, this kind of vulnerability, coupled with a desire to obtain treatment or counseling, is often viewed favorably.
Knowing when it is wise for clients to speak and when it is better to remain silent is a skill our attorneys possess. Let us advise you through the investigation and negotiation phases of your process.
Order To Show Cause
If formal charges are filed against you, you will receive an order to show cause, which is similar to a civil complaint and will set forth the particular facts of the allegations against you. After you are charged, the licensing board will assign the matter to a hearing examiner who will hear any motions and eventually conduct a hearing and issue a decision and order, much the same as a judge.
The Administrative Law Process
The hearings are governed by the Administrative Agency Law and the General Rules of Administrative Practice and Procedure. Unlike civil litigation in the courts, there is very little discovery in the administrative law setting. The prosecution will generally supply copies of documents it intends to introduce at the hearing. It is important that the attorney knows which additional documents to request so that he or she can properly defend the case. In certain situations where the prosecutor will not turn over evidence, the attorney must request a prehearing conference with the hearing officer to obtain the documents. Additionally, the hearing examiner has the authority to issue subpoenas to various third parties to either attend the proceedings or produce relevant documents. It is important that the attorney be familiar with the administrative law process to properly defend the professional.
Preparation For Hearings
Once an order to show cause has been issued, preparation for the hearing must begin. A professional will want to show the bureau prosecutor that they are fully prepared to litigate the case. This positions them for the possibility of an acceptable settlement.
We work with professionals and investigators to gather witness statements and facts that support a positive perception of our clients. Our thorough investigation can include calling character witnesses, professional references and expert witnesses to testify on your behalf, as well as a review of any pertinent records you may have. In cases involving drugs or alcohol, it is especially important that you share all the facts with your attorney to help properly prepare a defense and find witnesses to bolster your case and explain your conduct.
It is important that your attorney be knowledgeable about drug and alcohol and mental health issues if they form a part of your defense. Our professional license lawyers will refer you to an appropriate addiction specialist or mental health specialist who will treat the underlying condition and will help to prepare a report and/or testify in your defense at the hearing. We know what type of evidence of recovery that the hearing examiner expects to be presented at your hearing.
Hearings for the Philadelphia area are typically held in Harrisburg, Pennsylvania, but occasionally they can be transferred if needed to accommodate witnesses. To see the effect that thorough preparation can have, see our About Our Cases page.
Consent Decree And Order
When a professional has been charged with unlawful activity, disciplinary actions are discussed. A consent decree can help minimize the severity of an outcome. A consent decree is similar to settlement in civil court. Typically, the accused professional makes an admission of guilt and a reasonable disciplinary action is approved by the Board.
Our attorneys help negotiate consent decrees aimed at obtaining the best possible outcome for our clients. Depending on the severity of the offense, it is possible in some cases to negotiate for a sanction that includes no loss of professional license.
Sometimes consent decrees are private and other times they become a matter of public record. If the decree is a matter of public record, the sanction will most likely be reported to the National Practitioner Data Bank, where it can be seen by hospitals, third parties and insurance companies. In presenting your defense, we will do everything in our power to ensure that your license and career are protected for the long term.
Prompt Action Is Important
Preserving your professional standing in the communities in which you serve is our priority at The Law Offices of Brian E. Quinn. If you would like to speak with an attorney about your impending administrative hearing or about some other aspect of the professional license defense process, contact us today. Call 866-657-7318.