Well almost.  Some Pennsylvania licensing boards have that power now, but it was unclear if others did.  Therefore, the law is being amended.  House Bill 261 has passed both the House and the Senate and, as of January 15, sits on Governor Corbett’s desk for signature.  All indications are that he will sign this bill.   Once signed, the bill will go into effect sixty (60) days later.

The bill will provide the authority for each licensing board to deny, suspend or revoke any license for failure to pay any fines, interest, or costs assessed as a result of a disciplinary proceeding.  It also provides that if the amount due exceeds one thousand ($1,000.00) dollars and remain unpaid the board has the ability to enter the amount as a civil judgment against the individual or corporate entity.  This judgment remains of record and does not need to ever be revived.  The board has up to sixty (60) months to enter such a judgment.  Further, once paid the board has up to ninety (90) days to satisfy their judgment.

In my opinion, this is good fix because certainly the intention has always been to be able to discipline a licensee for failure to pay their fines. I do not see the requirement for entering the fine as a judgment but generally this should never be an issue for a licensee.  I have been able to negotiate payment terms in cases where payment was difficult.

If you have any questions about licensing please contact me at jmcguire@c-wlaw.com.
 

Note:  The Governor signed this bill on February 4, 2014.
 
 
On Saturday, December 1st, it became official. The revised regulations were published in the Pennsylvania Bulletin and now all licensed accountants in Pennsylvania must obtain at least four hours of CPE in ethics during each renewal.  Pennsylvania has not made this ethics requirement state or statute specific, so any ethics course from any approved sponsor is acceptable.  Be sure to obtain your 4 hours from an approved sponsor before December 31, 2013.
             
Speaking of approved program sponsors, the new regulations clean up what entities are approved sponsors, which will eliminate most of the prosecution that has historically resulted from courses not being approved by the Board.  Now any sponsor who is approved by the state board of another state that has substantial equivalency is deemed to be an approved sponsor along with anyone who is NASBA approved.  This is good for PA accountants because all of our neighboring states and almost every state has substantial equivalency.

In other items of interest, the Board did elect to maintain “specialized knowledge and applications” as an approved subject area. CPAs further retained the ability to obtain CPE credit for authorship of writings.  However, to receive credit for authorship each licensee must receive approval from the Board prior to renewal for these credits to apply, so if you are considering this, please keep the time constraints in mind and review the regulations for the specific requirements. 
          
Also published the same day, were regulations adopted by the Board which set forth a schedule of civil penalties for first offenses for CPE violations and unlicensed practice.  Hopefully, the prosecutors who handle accounting licensing cases will begin to use this process for these “minor violations” rather than the formal filing that results in a hearing and full prosecution. Further, it is hoped that someday there will be legislation that passes allowing expungement of these “minor violations”.  Legislation was introduced in the last session by Representative Harper [HB 646]that would have made this the law.  Unfortunately, while it passed the house (unanimously I believe), it stalled in the Senate and never came out of committee.  Therefore, this legislation will have to be reintroduced in the next legislative session.
             
Here are links to the PA Bulletin where these regulations were published.  
http://www.pabulletin.com/secure/data/vol42/42-48/2312.html  (Continuing Professional Education)
http://www.pabulletin.com/secure/data/vol42/42-48/2313.html  (Schedule of Civil Penalties)
           
If you have any ethics or licensing questions please contact me at jmcguire@c-wlaw.com.  Please sign up for any of my ethics courses through PICPA or contact me if you wish an in house ethics course.

 
 
Even if you haven’t taken an ethics course you already know that it would be unethical to lie about having taken an ethics course.  The New Jersey Board of Accountancy collected $4.2 million in penalties from CPAs last year who apparently did just that.  That’s right $4,200,000.00!  The New Jersey Star Ledger reports that this amount exceeded the “total amount of penalties leveled by all the state boards in each of the last five years.”  The largest fine assessed was $8,000, so there were a lot of CPAs who failed to obtain the required CPE.

In New Jersey, CPAs are required to take a state specific ethics course every three years.  Like many states New Jersey usually selected about 10% of renewal applications to conduct an audit of all CPE courses.  Instead, last year they elected to compare the list of attendees at the required ethics course from 2006 through 2008 to the list of CPAs who renewed as of January 1, 2009.  Everyone who filed a renewal but had not attended the state specific course was audited for all courses.  While I’m certain some of these CPAs attended a non-state specific ethics course and believed that was acceptable there was a disturbingly large number of CPAs who didn’t take any courses.  That means these CPAs lied on their applications not only about taking the ethics course but also about taking the required 120 hours.  
 
Not surprisingly the New Jersey Board has indicated that it will conduct another audit for the January 1, 2012 renewals and it should come as no surprise that other states and other professional boards are considering conducting audits of their own.  $4.2 million is certainly an incentive for any state.  New Jersey has already indicated that they may more vigorously review doctors, nurses, pharmacists and psychologists. 

CPAs are generally considered to be the most honest and trustworthy profession, so, if they have trouble meeting their ethics requirements the other professionals are as well.  Hopefully, the lesson learned here is that every professional should take their CPE requirements seriously.  If anyone has any questions about their requirements or has a licensing issue please contact me.  And remember to contact me before meeting with an investigator.

 For CPAs, please remember that in Pennsylvania, your next renewal will be on January 1, 2014.  You are required to obtain at least 20 CPE credits each year during the two year cycle and 80 hours total during that period. Although the regulations still have yet to be passed, the Board has indicated that it will be requiring 4 credits of ethics for the upcoming renewal.  Remember, it is also your responsibility to make certain that the CPE credits you have taken are approved for credit in Pennsylvania.  Your provider should be able to give you this information.

 All other professionals have renewal deadlines and CPE requirements which must be followed.

 While it remains to be seen if Pennsylvania will increase its CPE audits and prosecutions,  you can avoid any concern about an audit or prosecution if you simply follow the regulations of your profession.

 
 
The passage of Massachusetts law restricting mandatory overtime for nurses gave me the occasion to look back and report on the Pennsylvania’s law.  Act 102 of 2008 is called the Prohibition on Excessive Overtime in Healthcare Act and went into effect on July 1, 2009.  These laws are designed to provide increased patient safety by preventing nurses from being forced to work mandatory overtime. Numerous studies have linked nurse fatigue and/or overwork to medical errors and/or patient deaths.  
 
At this time, with the addition of Massachusetts there are now 15 states with laws restricting mandatory overtime for nurses.  New Jersey, New York, and West Virginia are the neighboring states with such a law.  
  
Pennsylvania’s law does not go so far as to prohibit voluntarily exceeding eight hours in a day or forty hours in a week as some states have done.  Therefore, in Pennsylvania, a nurse may voluntarily work as many hours in a day or week as they like.  The law protects nurses from discrimination or retaliatory action for refusing to work overtime.  There are limited exceptions when a nurse may be required to work overtime but those essentially involve patient safety issues should the nurse not work the overtime.
 
The Department of State has a web page devoted to this law and reporting violations.   http://www.portal.state.pa.us/portal/server.pt?open=514&objID=614498&mode=2 The  Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP)  indicates on their website that they continue to monitor Pennsylvania’s law as well. http://www.pennanurses.org/pac/mot.html

If you have any questions about this, please contact me a jmcguire@c-wlaw.com.

 
 
           
On June 22, 2012 Governor Corbett signed Act 65 into law [SB 388].  The law goes into effect August 21 (60 days after it was signed).  This law amends the Pennsylvania Dental Law to require dentists licensed in Pennsylvania to purchase professional liability insurance. Pennsylvania is one of only a few states to require dentists to maintain this insurance.
                 
The law requires limits of at least one million dollars per occurrence and three million dollars per annual aggregate. However, it does allow dentists to be self insured.  Until the regulations are passed, it is unclear exactly what proof of assets or solvency will be required to satisfy the self insured status.  
                 
What is required to under the law is to maintain insurance and provide proof of insured status upon license renewal.  In order to be compliant with the new law it is important that dentists have insurance in place on or before August
21.  The Pennsylvania Dental Board has the ability to refuse, revoke or suspend a dentist’s license for failing to
comply with this requirement.
                 
Commissioner Katie True of the Bureau of Professional and Occupational Affairs [BPOA] testified before the House Insurance Committee that requiring insurance would be beneficial to the public.  The Pennsylvania Insurance Department also supported this law. In Pennsylvania other professionals that are required to maintain professional
liability insurance in order to maintain their licenses include doctors, optometrists, chiropractors, nurse-midwives and physician assistants.  The question remains whether the BPOA and/or Insurance Department will push for the same or similar legislation for other professions or occupations.  So far the requirement to maintain insurance is limited to the medical boards although it is interesting to note that attorneys must disclose to their client the fact that they do not maintain a certain level of insurance and this information is available online if you search an attorney's license status.

For now, we'll just have to wait and see whether BPOA attempts to expand the insurance requirement to other Professional or Occupational licensees.
 
 
                
     In a prior blog, I talked about the ability to maintain your license in the face of substance abuse addiction and a board prosecution.  I mentioned the Voluntary Recovery Program (VRP) and the Disciplinary Monitoring Unit DMU). These are very similar programs available to the Pennsylvania Department of State’s Bureau of Professional and Occupational Affairs and to be used by the various boards that fall under that umbrella (i.e. Accountancy).  They allow impaired professionals to continue to practice as long as they abide by the terms of the program.  Often any disciplinary action is deferred pending compliance with the program and then dropped upon successful completion.                 
     The VRP, as its name suggests, is voluntary.  The goal of this program is to allow impaired professionals to practice safely.  One of its greatest benefits is that enrollment in this program is confidential and there will not be any indication on your license that there has been any discipline for this occurrence.  This program is generally for individuals who have not had prior problems, particularly felony convictions.  When an issue is caught early before someone is convicted of any crimes, or maybe with just a DUI, this is a program which should be considered.  To be eligible to enroll in the VRP, one must undergo an assessment by a VRP assessor and be recommended for the program.  Then, the individual must enter a consent order with the board agreeing to disciplinary action which will be deferred as long as the licensee remains compliant with the terms of the VRP and which will include specified treatment and other conditions.                    
     There are several things that can make a licensee ineligible for the VRP.  These items include: felony drug convictions, a history of patient harm, a history of drug distribution or sales, sexual offenses and prior failure in this or a similar program.                   
     The DMU is not a voluntary program.  This program is for those individuals who are either not eligible for the VRP or who have been subject to formal discipline by their board and must comply in order to either continue to
practice or to get their license back.  Otherwise, the program is essentially the same as that of the VRP.  A licensee can fail out of the VRP for violating its terms and possibly still continue to practice if they can demonstrate that they will then be compliant with the DMU requirements, however, a hearing may be necessary.                 
     Neither option is a good idea for someone who is in an active addictive state because they will violate the terms of the program and find themselves facing the penalty that had been deferred by the board. The license will certainly be suspended pending a hearing with a positive drug test and/or failure to follow required treatment.                 
     If you find yourself suffering from a physical or mental impairment, you should consult with the appropriate professionals.  If you contact me, I can assist you through this process.
 
 
            
     If you are facing a licensing investigation due to a substance abuse issue, there is hope to maintain your license.  The licensing board may begin an investigation on the basis of a DUI or drug conviction or due to complaints received from a colleague or client.  It doesn’t matter what prompts the investigation, the consequences can be very serious.              
     The board has the authority to suspend your license pending a hearing if  they believe you constitute a danger to the public. While this process is most often used for the medical boards (including nurses), where patient safety is the number one priority, generally, it can be used by any of the boards.  Physicians must remember that they are required to disclose arrests for DUI within 60 days and cannot wait to see if they are convicted.                 
     It is imperative that you receive professional advice immediately, in order to most successfully navigate through this process and maintain your license.  You will need both legal advice and the advice of medical professionals.  Certainly, if there are criminal charges pending, you should have the advice of an experienced criminal attorney but they may not understand the impact that any charges or conviction would have upon your ability to practice.  Medical experts to assist you with any substance issue will be imperative to maintaining your license.
     If you have a substance abuse problem you will have to acknowledge it and receive professional help to address it in order to maintain your professional license and continue to practice.  You will be required to demonstrate that you can competently practice your profession.  Substance abuse counseling, in-patient treatment, AA meetings, and mental and/or physical examinations may all be necessary and will certainly be helpful to establish your ability to practice.  If the board allows you to continue to practice, they may require submission of the reports from the above treatment and may also require random drug and/or alcohol testing.  Further, they may require attendance at appropriate twelve step meetings and they may require a workplace monitor.  
     The random testing can take the form of urine, serum, blood, saliva, perspiration, or hair, although the most common is urine.  (False positive results can occur with these tests and it is extremely important to follow the specific onditions i.e. no poppy seeds on rolls etc.)  Workplace monitors can be a partner if approved by the board. There are two types of monitoring programs used by the Department of State to supervise practitioners and to ensure compliance with any Orders of the board.  Those programs are the Voluntary Recovery Program (VRP) and the Disciplinary Monitoring Unit (DMU).                   
     While substance abuse addiction and a board prosecution can be very daunting problems, with the assistance of the proper professionals you can maintain your license and continue to practice.  If you find yourself suffering from a physical or mental impairment you should consult with the appropriate professionals.  If you contact me, I can assist you through this process.
 
 
Are you insured for your professional licensing  matter?  Surprise . . . you may be.  I’ve represented many  professionals in licensing issues before the various Pennsylvania Licensing Boards.  I’ve also represented many  professionals in malpractice claims so I have had occasion to review many Professional Liability policies.  Many insurance companies do provide coverage for licensing complaints. Sometimes it is in the base policy and sometimes it is offered in a rider or even separate coverage.

 Often the insurance company will provide coverage because a license complaint is frequently filed in conjunction with a civil lawsuit and the insurance company doesn’t want the licensing matter to compromise the defense of the civil suit.  There is also an issue about control of what documents are provided in the licensing case and making certain no more than what must be disclosed is disclosed.

The insurance company will only cover your expenses, including legal fees, to defend the licensing case.  There will be no coverage for any fines or costs imposed by the licensing board.  Be certain to contact your attorney and/or insurance company early in the process so you have the benefit of their expertise from the beginning.  Often, the early intervention of an attorney can resolve a licensing complaint particularly when there is also a civil action or the treat of a civil action because those matters really should be dealt with in the civil courts rather than at the licensing board.

 If you would like me (or any specific attorney for that matter) to represent you and you do have insurance that will cover your attorney’s fees, you can request that the insurance company hire me.  If you let me know I can provide the insurance company with my resume and usually they will allow me to do the work rather than their panel attorney who may not have as much experience as I do.  In fact I may already be approved by the insurance company to do that work for them. 
 
So anytime an investigation is started or you receive an Order to Show Cause, make sure that you not only contact an attorney but also your insurance company in case you have coverage.

 
 
Most professional license holders have no idea that failure to pay child support in Pennsylvania can result in the suspension of their professional license.  In Pennsylvania, the domestic relations act provides that the holder of a professional or occupational license may have their license suspended, non-renewed or not issued for certain actions.  See 23 Pa.C.S. §4355.  These actions include failing to pay child support to the extent that the amount due equals three months or more of the monthly support obligation and where the department has been unable to attach the income directly from the employer.  So don’t play games with child support because your license is at risk.  In addition, your license can also be affected if you have failed to comply with a visitation or partial custody order and have been held in contempt.  Your license can further be affected if you fail to comply with subpoenas and/or warrants relating to paternity or child support proceedings.  Remember a license is a privilege not a right and you must live up to the standards to maintain that privilege.

Fortunately, as a licensee, you do have certain rights and your license cannot be affected without a hearing and notice to you.  It is not in anyone’s best interest that your ability to earn a living be put in jeopardy so generally these issues can be resolved short of an actual license suspension.  Certainly complying with all court orders is a start.  Having your company begin to deduct child support directly will also help. 

The process provides that the licensee must be provided thirty days notice that his or her license will be suspended and an opportunity to contest the decision.  However, the decision can only be contested on a mistake of fact as to the amount owed or as to mistaken identity.  But it does allow for a resolution by paying the arrears, entering a payment plan, responding to the subpoena etc.

On a side note this same statute applies to motor vehicle, boating, hunting and fishing licenses.

If you have any questions please contact me.  jmcguire@c-wlaw.com