For the Defense - Vol. 5, Issue 2 - 18

Note that 35 P.S. § 780-123(c) permits a stay of
the suspension by the appropriate state licensing
board if the licensee participates in the Impaired
Professional Program. Therefore, if your client is
going to plead guilty to a misdemeanor under
the Drug Act, it may be beneficial for your client
to enroll in the PHMP to avoid the automatic
suspension.
Prior to the entry of the plea, you may want
to contact the board prosecutor and request
an agreement to place your client in the DMU.
Recall that the Disciplinary Monitoring Unit
("DMU") is essentially the same as the Voluntary
Recovery Program ("VRP"), but the DMU is public
discipline. Participation in the DMU will remain
on a licensee's record indefinitely. Since the VRP
is a confidential program, the prosecutor will not
have been aware of your client's involvement
in the VRP before they file for an automatic
suspension. The VRP is not available to a licensee
who has been convicted of a misdemeanor
crime under the Drug Act. Therefore, if the VRP
agreement is changed to a DMU agreement, your
client can avoid the automatic license suspension.
The Interplay Between Participation in Drug
Court and Licensing Issues
It is also important that you understand
the ramifications of Drug Treatment Court. In
some counties such as Montgomery County, a
defendant enters Drug Treatment Court (DTC),
and if she/he successfully completes DTC, all
charges are withdrawn. In other counties such as
Bucks County, the defendant enters a guilty plea
to all charges and after successful completion
of DTC, the Commonwealth typically withdraws
most of the charges. The defendant is sentenced
on one charge, usually paraphernalia which is
a misdemeanor. Remember, even if your client
pleads guilty to only one criminal conviction, any
misdemeanor Drug Act conviction will trigger a
one year suspension of the healthcare license.
The following is an example of how to avoid
the above suspension and DMU in the context
of a recent DTC disposition: the nurse diverted
drugs from her job at a hospital. She entered a
DTC in a county where the defendant is required
to enter a guilty plea to all charges. She entered
a guilty plea to all charges, including Section
(A)(12) of the Drug Act, a felony, charging her
with acquisition of a controlled substance by
18

For The Defense l Vol. 5, Issue 2

misrepresentation, fraud, forgery, deception or
subterfuge. Sentencing is being deferred until the
client completes DTC. Our agreement with the
District Attorney's office is that upon successful
completion of DTC, the paraphernalia charge
will be amended to a disorderly conduct, and
the client will be found guilty and sentenced
to administrative probation on the disorderly
conduct charge, allowing the client to avoid
suspension of her nursing license when she is
eventually sentenced after completion of DTC.
More importantly, this will allow the client to
remain in the VRP, a confidential program.
Additional Statutes
Regarding felony offenses, you should check the
healthcare worker's statute that applies to your
client. These begin at 63 P.S. § 42.1 and governs
the Podiatry Practice Act and runs through 63
P.S. § 1901 which is the Social Workers, Marriage
and Family Therapist and Professional Counselors
Act. Each Act has one or more sections which
govern discipline, suspensions, revocations, and
reissuance of a professional license. As a rule of
thumb, any felony conviction under the Drug Act
will result in a license revocation.
For instance, under 63 P.S. § 422.43(b) a medical
doctor whose license has been suspended or
revoked because of a felony conviction under
the Controlled Substance Act may not apply for
reinstatement for ten years after the date of the
conviction. Since my last article was published
in 2017, our Supreme Court decided McGrath v.
Bureau of Professional and Occupational Affairs,
State Board of Nursing, 173 A.3d 656 (Pa.2017)
and held that an automatic suspension of ten
years of a nurse's license for a felony conviction
under the Drug Act is no longer enforceable.
Petitions for Immediate Suspension
The law also permits each healthcare board to
petition to immediately temporarily suspend a
healthcare worker's license under circumstances
as determined by the board to be an immediate
and clear danger to the public health and safety.
For example, the Board of Nursing is permitted
to issue such suspension under 63 P.S. 225.1. This
would typically occur when a licensee is arrested
on serious charges or has suffered from a health
or mental condition that immediately renders
them unable to safely practice. This often


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For the Defense - Vol. 5, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 2

Contents
For the Defense - Vol. 5, Issue 2 - 1
For the Defense - Vol. 5, Issue 2 - 2
For the Defense - Vol. 5, Issue 2 - Contents
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