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Administrative law

Administrative law governs federal and state agencies. It helps ensure the actions they take are constitutional, and provides a framework for contesting them.

Richard Quinton Hark | Apr 3, 2019

Professional License Application and Disclosure of a Criminal Record and Proof of Rehabilitation

The Crime - a Hearing - A Decision On October 14, 2014 Dr. Christopher Elder, a Texas licensed physician, submitted an application to Pennsylvania's Medical Board for a license to practice medicine and surgery. Unlike Hawes, Elder disclosed a 2010 federal conviction for aiding in abetting and conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. On April 2, 2015 the Pennsylvania Medical Board provisionally denied Elder's application. The Board maintained the Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), authorized licensure denial because of Elder's felony conviction. The Board also denied licensure, maintaining he lacked good moral character and did not possess the requisite training and experience. Elder appealed the conditional denial of licensure. At the hearing before a Board designated hearing officer Elder presented his credentials, training and experience, the facts of the criminal case, and character evidence. Consistent with prior Pennsylvania Supreme Court precedent, Elder maintained the criminal conviction was too remote for the board to determine such affected his current ability to do his job lawfully. Elder's mitigating evidence established his minor role in the criminal case and put in the record his rehabilitation since release from prison. The hearing officer, after hearing and weighing witness' credibility and Elder's mitigating evidence, ruled in Elder's favor. The Hearing Examiner stated that while Elder's criminal conduct demonstrated moral turpitude at the time of its commission, Elder presented persuasive evidence of his rehabilitation and present moral fitness to practice medicine. A period of probation was required to allow Elder the ability to secure appropriate supplemental educational classes for competency. The Medical Board The Medical Board rejected the Hearing Examiner's proposed adjudication. The Board determined Elder's explanation of his crime displayed a lack of remorse and acceptance of responsibility, that Elder still lacked the moral turpitude to be a doctor in Pennsylvania, and lacked the educational qualifications. Elder appealed, maintaining the Board's decision was arbitrary and capricious in light of the competent, uncontested character evidence and age of the criminal act. Commonwealth Court Ruling Commonwealth Court agreed with Elder. For the second time in as many months, the Court took a Pennsylvania licensing Board out to the wood shed and gave it a stern whipping. The Court emphasized that Boards must look at the age of the crime as it related to current fitness. Remote, past dereliction, must be considered where an agency seeks to revoke a professional license on the basis of a criminal conviction. Secretary of Revenue v. John's Vending Corporation, 453 Pa. 488, 309 A.2d 358 (1973). The Court explained that “where the prior convictions do not in anyway reflect upon the [applicant's] present ability to properly discharge the responsibilities required by the position, we hold that the convictions cannot provide a basis for the revocation of a ... license.” For Elder I determined he must present a clear explanation of the criminal enterprise accompanied by extensive mitigating evidence. The Board was dismissive of Elder's mitigating evidence, stating that “[r]ather than to take responsibility and express remorse for his criminal misconduct during his testimony, [Elder] attempted to minimize his role.” Elder responded that such did not minimize his criminal conduct but explained his role in the underlying conspiracy, which the Board misconstrued as a collateral attack on his conviction. Elder directs the Court to Nguyen v. Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 53 A.3d 100 (Pa. Cmwlth. 2012). Case Law The Commonwealth Court reviewed the entire record, the Federal Court sentencing transcript, the 8th Circuit Court of Appeals decision, and each witness' testimony of Elder's character and rehabilitation. The Court emphatically states: The record does not support the Board's assertion that Elder failed to express remorse or to take responsibility for his criminal conduct. At the hearing, Elder stated that he was “really” and “deeply” remorseful and he “absolutely accept[s]” responsibility.” He presented witnesses to attest to his remorse. The Board did not explain how this testimony was inadequate or what else Elder could have said. Elder's attempt to place his criminal conduct into context and explain his role in the conspiracy does not demonstrate a lack of remorse or rehabilitation, as the Board presumed. The Board simply made a subjective determination that was contrary to that of the Hearing Examiner, who directly observed Elder and his witnesses, and accepted his evidence on remorse. We hold that the Board erred and abused its discretion in reaching the conclusion that Elder does not have the present moral character required for a license. Elder's crimes were committed over 14 years ago and were isolated to a single episode in his life. He has served his sentence. The Board erred by categorizing Elder's evidence as not accepting responsibility when he was simply explaining his role in the conspiracy. The Board's conclusion on Elder's moral character cannot be reconciled with John's Vending, 453 Pa. 488, 309 A.2d 358, or Nguyen, 53 A.3d 100. It did not take into account its own findings that Elder's conduct since 2004 has been not only free of criminal conduct but dedicated to significant volunteer and public service activities. In reversing the Board and instructing it to grant licensure, the Commonwealth Court determined the Medical Board sanction was a manifest and flagrant abuse of discretion and purely an arbitrary execution of the agency's duties or functions.” This is an amazing conclusion and decision of the Commonwealth Court. Elder disclosed his federal criminal conviction for conspiracy to illegally distribute drugs. Elder set forth his long road to redemption, of rehabilitation, and his true character. The Court, a court of law, not the quasi-legal self-protecting Medical Board, looked at the facts - which mattered -- and granted licensure.

Elizabeth de Bagara Steen | Mar 4, 2019

Help with L&I Audit in Washington State

Workers compensation L&I reporting for office staff employees: 2 common issues that lead to fines There are two really common issues with office staff in Washington State L&I workers compensation audits. First, construction or other types of manufacturing companies where office staff share space with storage materials or a workshop space can face unexpected fees. L&I auditors will watch for office staff in a shared space without a wall between office employees and a workshop or a storage space, and if there is no physical wall the business owner will have to pay a higher wage rate classification for office staff. Second, a busy small business owner might as an office staffer to purchase supplies for a business that are not strictly office supplies. it might seem like it's not a big deal to ask an employee to pick up a roofing supply or a small load of materials. And of course, most employers use Amazon for almost everything now anyway. Employers should still keep in mind that Washington’s L&I Department will ding employers for any office staffer who is used to buy materials that are not strictly office supplies under WAC 296-17A-4904. If an auditor learns of even one trip, L&I will reclassify all of the work hours for the employee at a higher rate, and the auditor will try to exclude the employee from the office staff risk classification lower rate class entirely. The employer will have to pay the unpaid wage risk classification, plus late fees and fines for all the reclassified hours. It can be an expensive misunderstanding. Workers compensation L&I reporting for business owners who also work on job sites Business owners are normally exempt from reporting their hours as an employee. However, if L&I auditors find a business owner working alone on a job site as a laborer without any other employees present, the auditor will require that the hours spent on the job site be reported as if the business owner were a worker. It's not usually a large fine, but it can also lead to late penalties and other fees.L&I auditors check invoices for details that would indicate a business owner worked a site alone. They also ask customers, clients, and other business owners to report on each other. It's generally best to keep in mind that even for a small job, a business owner who performs work at the job site should be sure to bring at least one other employee with him to avoid a compliance check or fine. Workers Compensation L&I reporting for construction businesses with a permanent storage space Construction companies like to be able to report their lower-skill employees for work spent loading and unloading at a lower risk classification rate. However, employers without a "main" storage space/yard work are not allowed to qualify for “Permanent Yard or Shop” under WAC 296-17A-5206-79. L&I auditors in Washington will only allow workers to be reported for this lower payment if the shop is used for storage and maintenance only. Auditors will look for a shop that combines functions in one storage space and ding the employer for a higher risk classification for all employees. L&I auditors will also watch for companies that use the "yard work" classification for workers loading and unloading at a job site, or other location. To qualify for the lower rate, the work has to be performed at a permanent storage or shop facility.

Richard Quinton Hark | Feb 18, 2019

Immediate Temporary Suspension -- Do Not Sign An Agreement With Out Counsel

Targetted Doctors -- Fake or Real Patients 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 simply writing unreasonable amounts of scheduled narcotic prescriptions. DEA Schedule II data base prescription writing reports spawn both federal and state investigations. Local and federal investigators receive complaints from family members of addicts, alive or dead. Drug purchasers or drug dealers * *flipped* or *turned* that are now confidential sources seeking to avoid jail * will happily turn on their doctor. Once a doctor is targeted for pill mill conduct, federal, state, and local police send confidential informants * fake or real patients * to that doctor. Wired fake patients happily record doctor*s physical evaluations, confidential patient conversations, and prescription discussions. Doctors that breach pain management best practice protocols, for either real or fake patients, are prosecuted. Red flags include not requiring pre-prescribing drug tests, objective MRI or x-rays if warranted, or conducting basic physical evaluations. Proper Patient Care -- The PDMP -- What to do Treating physicians must check the prescription drug monitoring data base. Pennsylvania*s New Prescription Drug Monitoring Program Investigators are statutorily authorized to access the PDMP data base to investigate law compliance. Every prescriber must confirm the patient has neither sought or nor received a similar medication from any other provider. Failure to check the PDMP database is a red flag. It is very easy to confirm doctors database access to review patient prescription history. While the doctor may not ascertain a fake patient from a real one, data base checking give investigators a baseline determination that a targeted doctor is or is not compliant with the law. Physician evaluation appointments must correspond to an appropriate amount of time spent with each patient. Physical examinations, chart documentation, and PDMP checks require time. Charting must document a diagnosed medical condition which warrants a prescription for a therapeutic medical purpose. Multiple prescriptions for multiple, contra-indicated schedule controlled substances are an easy tip off to police investigators of excessive and inappropriate prescription writing. This is part of the criminal prosecution foundation. Established physician practice red flags are utilized in Medical or Osteopathic Board Immediate Temporary Suspension (ITS) petitions. These petitions emergently, immediately, but temporarily suspend a license pending either the criminal prosecution or investigation. Call me when you get these petitions. Do not solely rely on criminal legal counsel on how to address these petitions. My criminal practice experience together with my licensing experience allows me to better represent the physician at this juncture. Too many physicians get the wrong legal advice on how to deal with these matters with a pending criminal case. On too many occasions either these probable cause suspension hearings are continued or exchanged for a consent agreement for an immediate indefinite license suspension. This is wrong.

Richard Quinton Hark | Jan 29, 2019

Finishing the PHMP Term -- Returning to an Unrestricted Health Care Practice

Compliance -- What is it. How do you get out of Pennsylvania's Professional Health Monitoring Program ("PHMP"). The PHMP administers both the Voluntary Recovery Program "VRP" and the Disciplinary Monitoring Program ("DMU")? As a licensed professional voluntarily enrolled in the PHMP - VRP - or forced into the DMU, you agreed to PHMP terms to keep working. You have been compliant for over three years. Now you think the program time is up! But what you think is "compliant" may not be what your PHMP case worker thinks is compliant. Compliance does mean no positive drug tests and attendance and proper participation in all medical evaluations. Compliance includes AA or NA weekly meeting, daily telephone call-in, and/or random drug testing for at least three-years. Also, it is mandatory to provide three years or more of employer quarterly work evaluations. Compliance also means alcohol and drug free for: 1) the first 3-6 months before the licensing board formally enters the Consent Agreement. This is the time period after signing the contract and filing out the personal data sheet when you accepted VRP DMU terms. Case workers do not tell you that it will take 3-6 months for a board to approve the contract. Also, they do not tell you to stop the drug testing after three years in the PHMP. They do not tell you when the three years clock starts to run. Paying all Program Costs There is one more requirement that is the most important part of compliance; paying all associated costs of the program. Many professionals ignore or forget to pay these expenses. Unless paid, the PHMP term will not end. Recently I have fielded several calls from PHMP participants who have satisfied all of the above compliance requirements but did not finish paying 100% of the PHMP program costs. Each thought they were "done the program". Licensees even receive eligibility letters from their PHMP case worker suggesting that they are poised to be satisfactorily dismissed in thirty days from the PHMP. That thirty day period ran out with no case worker activity. Then, a positive alcohol test is claimed. Case workers then argued the licensee violated the program and requested a 12-18 month extension. These licensees were super angry. How to Get Out of the Program Because a licensee did not pay the monetary expense, PHMP case workers do not file the termination petition with the board administrator. It is only this form, and only filed by the PHMP case worker, that will allow a board to terminate the licensee from the PHMP and reinstate the license to non-probationary status. Case workers continue to expect drug testing and abstinence. Licensees must remain compliant until the board discharges them from the program. This includes drug testing phone calls, testing, travel requirements, medical records, and employment restrictions. An extension of a PHMP agreement after it natural conclusion, solely because a license failed to pay the costs is an abusive practice. It is an example of the PNAP Trap of which I write extensively. Don*t let PHMP PNAP/SARPH/PHP pencil pushing caseworkers harass you and your professional career merely because you didn*t pay program costs. After 3 to 4 years of continued employment, maintaining financial responsibility should be much easier. You should fit this expense in your budget and pay monthly PHMP costs so that when you are eligible for termination from the program, PHMP caseworkers can not subject you any more torture. Call me to discuss.

Athena Jeanette Long Ponce | Jan 24, 2019

Understanding the Arbitrary and Capricious Standard Upon Appeal from a State Agency’s Decision

What makes an agency decision "arbitrary and capricious?" An agency acts arbitrarily and capriciously when it: (1) denies a litigant due process and prejudices its substantial rights; (2) wholly adopts the record from another case involving different parties, fails to make findings of fact, and bases its decision on its findings made in the other case; or (3) improperly bases its decision on non-statutory criteria. In addition, an agency abuses its discretion or its decision is arbitrary if "the agency: (1) failed to consider a factor that the legislature directs it to consider; (2) considers an irrelevant factor; or (3) weighs only relevant factors that the legislature directs it to consider but still reaches a completely unreasonable result." An agency's decision is also arbitrary if it is made without regard for the facts, relies on fact findings that are not supported by any evidence, or lacks a rational connection between the facts and the decision. CPS Energy v. Pub. Util. Comm'n, 537 S.W.3d 157 (Tex. App.--Austin 2017, pet. filed). One instance of the application of the arbitrary and capricious standard: In the case Langford v. ERS, the Third Court of Appeals found that the Texas Employees Retirement System had made an arbitrary and capricious decision regarding Langford's application for disability benefits. 73 S.W.3d 560 (Tex. App.--Austin 2002, pet. denied). Langford was severely injured in a fall during his state employment, and an administrative law judge determined that he should receive occupational disability benefits. However, months after that decision, the ERS board adopted new policies that were at odds with prior agency decisions upon which Langford had relied during his hearing before the administrative law judge. During the next year, the Board considered Langford's appeal, and without any deliberation, chose to reject the ALJ's recommendation and also denied Langford's appeal. The Board then also instructed its general counsel to make new findings of fact and conclusions of law, even though the ALJ was supposed to be the fact-finder in the case. Nonetheless, the Board adopted the new, improper findings of fact and conclusions of law and relied on the agency's new policies that were adopted after Langford's hearing. On appeal, the Third Court found that the Board's conduct created serious due process concerns, because: (1) Langford did not have notice as to the grounds on which the Board would base its decision, (2) it reached a result on grounds other than those presented at the hearing, (3) it first made a decision then made findings of fact to comply with that decision, (4) did not sufficiently explain its departure from prior decisions, and (5) did not comply with its laws concerning changes to an ALJ's findings of fact and conclusions of law. Since the agency had not respected Langford's due process rights, the Third Court found in Langford's favor as to his "arbitrary and capricious" argument.

Athena Jeanette Long Ponce | Jan 24, 2019

How to Navigate the Administrative Remedies Process

Learn your case's procedural steps and deadlines as soon as possible. It's important to know that when you want to challenge an agency's decision that affects you, you will be required to adhere to a prescribed timeline and dispute process that, if not followed, can ruin your chances for making your case. Similarly, if you are an employer, whether or not an employee adheres to Equal Employment Opportunity Commission (EEOC) requirements can make the difference as to whether that employee can pursue a discrimination claim against you. Administrative procedures frequently involve such elements as "contested cases," "formal charges," complaints, hearing officers, the agency's executive director, and hearings before administrative law judges with the State Office of Administrative Hearings. An attorney can explain these terms to you and the role they play in the administrative process and help you identify each step required during a dispute so that either you don't lose your suit before ever stepping inside a courthouse, or so you can create a sound defense based on a plaintiff's failure to exhaust their administrative remedies. Exhaust the required state administrative remedies before heading to state court. Statutes governing administrative disputes will tell you the deadlines and procedures you need to follow in challenging an agency's decision. Correspondence from agencies discussing the dispute will also often provide this information, but it should be confirmed with legal sources such as statutes and agency regulations. If the applicable procedures are not followed, courts will deny your case, whether the actual facts are in your favor or not. For example, in one Harris County case dealing with a corporation's overpayment of nearly $10 million in personal property taxes during 2008, the corporation did not realize until years later that it had overpaid the taxing authority, and it tried to correct its payment with a motion in 2011. The appellate court held that the corporation could not correct its 2008 payment because it had neither protested within thirty days after receiving notice of the appraisal (as required by Texas Tax Code 41.44(a)), nor utilized an option provided under Texas Tax Code section 25.25 to correct statements before the corporation's taxes became delinquent. If the corporation had filed a protest within thirty days of the appraisal notice, it could have sought judicial review (under Tex. Tax Code 42.01(a)(1)(a)) in a district court if was not satisfied with the agency's final decision. Bauer-Pileco, Inc. v. Harris County Appraisal Dist., 443 S.W.3d 304, 310, 313 (Tex. App.--Houston [1st Dist.] 2014, no pet.). Exhaust the required federal administrative remedies before heading to federal court. Federal courts also expect that administrative remedies be exhausted before they get involved in an administrative dispute because this avoids premature interruption of the administrative process, lets an agency develop a factual background for decisions, gives an agency a chance to exercise its discretion and apply its expertise, and avoids judicial interference with an agency until it has completed its action. Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 837 (2001). Bear in mind that a legal claim doesn't have to be directed towards a federal agency to come under the requirement of administrative exhaustion. One common situation wherein federal procedures must be followed is the employment discrimination context. Federal courts do not even have jurisdiction over Title VII claims (those involving discrimination on the basis of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, genetic information, or retaliation) unless those grievances are first presented to the Equal Employment Opportunity Commission (EEOC), investigated, and concluded with a "Notice-of-Right-to-Sue" letter. Deadlines remain relevant, even after this point, because the related lawsuit must be filed within 90 days after receipt of the letter. A party's failure to follow these required procedures will result in the opposing party's easily arguing to the court that a case should be dismissed. An attorney can help you find possible exceptions to administrative exhaustion requirements. Generally, a claim likely has no chance of success in court if the required pre-trial administrative procedures were not followed, but there can be legal exceptions to these requirements. However, these exceptions apply only in certain limited circumstances. An attorney familiar with administrative law and the subject matter of your grievance can best discern whether any possible exception applies to your case.