McGrath v. Bureau of Professional & Occupational Affairs, State Board of Nursing

173 A.3d 656
CourtSupreme Court of Pennsylvania
DecidedNovember 22, 2017
DocketNo. 5 WAP 2017
StatusPublished

This text of 173 A.3d 656 (McGrath v. Bureau of Professional & Occupational Affairs, State Board of Nursing) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGrath v. Bureau of Professional & Occupational Affairs, State Board of Nursing, 173 A.3d 656 (Pa. 2017).

Opinions

OPINION

CHIEF JUSTICE SAYLOR

This appeal by allowance involves the automatic suspension of a nursing license based on a felony drug conviction. The question raised is whether, under the governing statute, reinstatement of the license is precluded for a fixed period of ten years, or is instead permitted at an earlier date subject to the discretion of the state nursing board.

The nursing profession in Pennsylvania is overseen by the State Board of Nursing (the “Board”), an arm of the Bureau of Professional and Occupational Affairs (the “Bureau”), which in turn is part of Pennsylvania’s Department of State. Nursing licenses are regulated pursuant to the Professional Nursing Law.1 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. For example, the Board may refuse, suspend, or revoke a license if it finds that the licensee-ror prospective licensee, as the case may be — is repeatedly negligent or incompetent in practice; suffers from a mental or physical illness which renders the person unable to practice with reasonable skill and safety; has willfully and repeatedly violated the Nursing Law; has committed certain types of fraud or deceit; has committed unprofessional conduct;' has possessed .or distributed, a controlled substance for other than medical purposes; has been convicted of a felony or a crime of moral turpitude; or has received probation without verdict in the disposition' of a felony charge. See id. § 224(a).

After the Board has suspended a license, it may restore or reissue- the license in its discretion subject to any disciplinary or corrective measure it co.uld have originally imposed. See id. § 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. Thus, the Law sets forth distinct procedures for the restoration of suspended and revoked licenses, and it imposes a more restrictive regimen in relation to the latter.

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.2 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.

63 P.S. § 225.1(b) (emphasis added). In terms of the “hereinafter provided” clause of the above text, Section 15.2 indicates:

Unless ordered to do so by Commonwealth Court or an appeal therefrom, the Board shall not reinstate the license of a person to practice nursing ... which has been revoked. Any person whose license' has been revoked may reapply for a license, after a period of at least five (5) years, but must meet all of the licensing qualifications of this act for the license applied for, to include the examination requirement, if he or she desires to practice at any time after such revocation.

63 P.S. § 225.2.

Finally, Section 6(c) of the Nursing Law, which relates .to the qualifications for licen-sure, specifies that if a nursing license applicant has been convicted of a felony under the Controlled Substance Act, the Board may not issue a nursing license to that person unless: ten years have passed since the date of the conviction; the applicant demonstrates significant progress in rehabilitation so that licensure is not ex-peeted to .create a substantial risk to patients or the public; and the applicant otherwise satisfies the licensure qualifications set forth in the Law, See 63 P.S. § 216(c).3

Given the interplay among the above provisions — and the fact that Section 16.2 only facially applies to revoked, as opposed to suspended, licenses — there is some uncertainty as to when and how a license which has been automatically suspended per Section 15.1(b) may be restored. At the heart of this appeal is the proper interpretation of Section 15,l(b)’s prescription that restoration “shall be made as hereinafter provided in the case of revocation or suspension of such license.” 63 P.S. § 225.1(b).

Turning to the facts of this case, at the relevant time Appellee held a license to practice professional nursing in Pennsylvania. In 2013, she pled guilty to one count of felony drug possession in violation of the Controlled Substance Act and received a sentence of probation without verdict. The Commonwealth then petitioned the Board to impose an automatic suspension of Ap-pellee's nursing license pursuant to Section 15.1(b) of the Nursing Law. In response, the Board issued a notice and order informing Appellee that her nursing license would be automatically suspended based on her felony guilty plea. As for the length of the suspension, the Board ■ referenced two aspects of the Nursing Law reflecting different time periods. It • first observed that Section 15.2 of the law prescribes a five-year minimum period. See 63 P.S. § 225.2. Next, the Board referred to Section 6(c) of the Nursing Law, which provides for a ten-year period with regard to the issuance of a new license. See 63 P.S. § 216(c). After quoting these provisions, the Board, without explanation, indicated that Appellee’s license would be automatically suspended for ten. years.,

Appellee filed exceptions arguing that the ten-year suspension period was improper.4 Thereafter, the Board entered a final adjudication affirming the notice and order. Applying an interpretation of Sections 15.1(b) and 15,2 which it had recently adopted, see infra note 5, the Board explained that, under the latter provision, Appellee’s license may only be restored “pursuant to the requirements for suspensions and revocations.” In re Automatic Suspension of the License to Practice Prof'l Nursing of Shannon McGrath, No. 1393-51-13, Final Adjudication & Order, slip op. at 5 (Bureau of Prófl & Occupational Affairs Apr. 10, 2015). The Board expressed that, because a person whose licéhse has been revoked must, under Section 15.2, meet all initial licensure requirements at the time of restoration — including the requirements of Section 6(c) — Appellee could only be “relicensed” after a ten-year period. Id. Thus, the Board viewed restoration of an automatically-suspended license as being subject to the same prerequisites as those stated in Section 15.2 for revoked licenses.

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Bluebook (online)
173 A.3d 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgrath-v-bureau-of-professional-occupational-affairs-state-board-of-pa-2017.