A Drug Act Conviction – An Automatic License Suspension – Not Revocation – and Reinstate
In McGrath v. Bureau of Prof’l & Occupational Affairs, No. 5 WAP 2017, 2017 Pa. LEXIS 3109, at *12-13 (Nov. 22, 2017), the Pa Supreme Court addressed licenses restatement petitions for nurses whose licenses are suspended by the Nursing Board after a Drug Act conviction.
History of the LawPennsylvania's Nursing Law has existed since 1951. Between 1951 and May 1985 the Nursing Law did not include a provision automatically suspending a license upon conviction of a Controlled Substance Act felony. In 1985, the Legislature revised the statute by adding Section 16.1 which states:
A license issued under this act shall automatically be suspended upon . . . conviction of a felony under the [Controlled Substance Act] . . .. As used in this section the term "conviction" shall include a judgment, an admission of guilt or a plea of nolo contendere. . . . Restoration of such license shall be made as in the case of revocation or suspension of such license.
A Recent Pennsylvania Supreme Court CaseMcGrath v. Bureau of Prof'l & Occupational Affairs, No. 5 WAP 2017, 2017 Pa. LEXIS 3109, at *12-13 (Nov. 22, 2017). Once issued, nursing licenses may be suspended or revoked by the Board. As set forth in Section 14 of the Law, the Board may suspend or revoke a license if it makes certain findings. See 63 P.S. ? 224(a), (b)(3). Additionally, the Board may refuse to issue an initial license for these same reasons.
McGrath's nursing license was automatically suspended - not revoked - when she was convicted of violating the Drug Act (it seems a felony). McGrath petitioned for reinstatement of her nursing sometime shorter than 10 years. McGrath argued the Nursing Act's provision for reinstatement allowed for the Board to grant such application within its discetion at any time, not earlier then 10 years stated under a separate provision of the Nursing Act.
The Case LawThe Pennsylvania Supreme Court in McGrath determines that after the Nursing Board has suspended a license, it may restore or reissue the license in its discretion (less than 10 years) subject to any disciplinary or corrective measure it could have originally imposed. ? 224(b)(6). The process for doing so is reflected in Section 15 of the Nursing Law, which states, in pertinent part:
All suspensions and revocations shall be made only in accordance with the regulations of the Board, and only by majority vote of the members of the Board after a full and fair hearing before the Board.... The Board, by majority action and in accordance with its regulations, may reissue any license which has been suspended. If a license has been revoked, the Board can reissue a license only in accordance with section 15.2.
63 P.S. ? 225. There are distinct procedures for the restoration of suspended versus revoked licenses, and it imposes a more restrictive regimen in relation to revoked licenses. In addition to the discretionary suspension of licenses under Sections 14 and 15, the Nursing Law contains a provision, added in 1985, for automatic suspension due to a felony conviction under the Controlled Substance, Drug, Device and Cosmetic Act. 63 P.S. ? 225.1(b). In particular, Section 15.1(b) of the Law states:
A license issued under this act shall automatically be suspended upon ... conviction of a felony under the [Controlled Substance Act] .... As used in this section the term "conviction" shall include a judgment, an admission of guilt or a plea of nolo contendere.... Restoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license.
The Importance of The DecisionMcGrath Supreme Court specific states a professional nurse who has been licensed but whose license has been suspended is not similarly situated to an individual who has never been licensed--or, for that, matter, a person who was once licensed but whose license has been revoked. Having concluded that reinstatement is eligible in less that ten years, such is still within the discretion of the Board. More importantly, the Court affirmed the proposition that
Section 15.1(b) reflects a clear legislative policy judgment that a felony violation of the Controlled Substances Act is an especially serious infraction warranting an automatic license suspension. "The Board [still possesses] ... discretion to restore such a license in the manner applicable to other license suspensions after conducting an appropriate administrative review."
ConclusionSection 15.1(b) reflects a clear legislative policy judgment that a felony violation of the Controlled Substances Act is an especially serious infraction warranting an automatic license suspension. "The Board [still possesses] ... discretion to restore such a license in the manner applicable to other license suspensions after conducting an appropriate administrative review."
This huge legal victory, is however, probably short lived. The McGrath Court simply counsel's the Board to seeking revocation of a license, in accordance with the procedures outlined in the Nursing Law, following a conviction under the Controlled Substances Act. See63 P.S. ? 224(a)(8) (authorizing the Board to impose discipline, up to and including revocation, based on the acquisition, possession, distribution, or use of a controlled substance for other than acceptable medical purposes). ("The Board could have sought revocation of Ms. McGrath's license [under Section 14] ... but it did not." (emphasis omitted)). If an automatically-suspended license is ultimately revoked, reinstatement would then be governed by Section 15.2.
The McGrath lesson is two fold. The case reveals very poor legislative drafting that creates a loop-hole, for suspended licensees convicted of Drug Act violations, which allows them to seek to seek license reinstatement under ten years when they have a good reason. However, either the General Assembly will fix this statutory construction problem or the Board will change its policy and start revoking licenses of those professionals convicted of Drug Act violations.