For the Defense - Vol. 5, Issue 2 - 19

happens after a drug overdose.
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
If the Petition for
Immediate Temporary
30
constitutional
right.
Suspension ("ITS") is granted, the licensee is

*

Giant food store or any other store that has a
Using the strategy above, people both in and
pharmacy, and as a clerk in a LensCrafters store.
outside my office have had tremendous success with
Rule 600
just making
it plain
In motions.
addition Oftentimes,
to the mandatory
exclusion,
to thethere
Commonwealth
that youexclusions
intend to seriously
entitled
to a preliminary
thirty
are also permissive
under 42
Request
discovery
early and inhearing
writing.within
That way,
litigate
this
issue
can
get
you
results.
It is onlycould
one
days.
The
hearing
is
conducted
by
the
board
U.S.
Code
§1320
a-7(b).
An
individual
if the Commonwealth fails to provide requested
weapon
in your
arsenal, but
becausefor
a win
means
receive
a permissive
exclusion
a license
or Office
Hearingcontinuance
Examiners in
Harrisburg.
discovery,
anyofrequired
will
be on
discharge,
it
is
a
potent
weapon
that
should
that time, If
the
preliminary
hearingwith
shallthe
be
revocation or suspension, a convictionnever
for fraud,
theAt
prosecution.
you
have to follow-up
a misdemeanor conviction related to controlled
limited to evidence on the issue on whether there be overlooked.
Commonwealth about discovery they have failed to
is a prima facie case to support the temporary
substances, as well as other offenses. For more
hand over, be sure to memorialize such requests in
suspension of the healthcare worker's license and NOTES:
information on OIG Exclusions see http://oig.hhs.
a writing such as an email.
1
other authorizations to practice the profession
gov/exclusions/files/sab-05092013.pdf.
Commonwealth
v. Mills, 162 A.3d 323 (Pa. 2017).
2
U.S.
C
onSt
.
A
mend
. VI; PA. CONST. art. 1, § 9.
issued
by
the
board.
If a continuance is required due to the
3
Commonwealth
v.
665 A.2d
427, 431the
(Pa. 1995).
Navigating DeBlase,
the licensee
through
Commonwealth's failure of diligence, be sure to
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
professional licensure disciplinary process when
A prima
facie
case at
exists
the continuance
Commonwealth
put that
on the
record
thewhen
time the
constitutional test); Commonwealth v. Preston, 904 A.2d
there
is an arrest
is (the
complex.
Many
the
establishes
a
reasonable,
reliable
basis
for
concluding
1, 10
(Pa. Super.
Ct. 2006)
Barker test
is anof
entirely
is requested. Even if the judge does not rule in
healthcare
professionals
you
represent
will
that
the
facts
justifying
the
suspension
are
accurate.
separate analysis from Rule 600 and therefore needs
to also
be
your favor, you have at least preserved the issue for
raised
separately).
have
underlying drug and/or alcohol issues.
The licensee is entitled to present evidence at the
appeal.
5
Pa.R.Crim.P.
Rule
600(2)(a);
seealcohol
also Commonwealth
Although
drug
and/or
treatment may
preliminary hearing and to have an attorney present
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
often
benefit
the
licensee
charged
with a crime
who
can
cross
examine
witnesses,
inspect
physical
All motions to dismiss pursuant to Rule 600 must be
"prejudice" need be shown to obtain Rule 600 dismissal).
31
at sentencing,
maydefinitive
work against
thatthe
person
evidence,
call witnesses,
offermotion
any evidence
and
File yourand
client's
after the
made
in writing.
While
Rule 600 has ait
more
time period,
sole in
the
professional
licensure
forum.
A
diagnosis
of
testimony.
focus
of
Rule
600
is
on
the
action
of
the
Commonwealth.
365-day period has elapsed. If the trial judge rules
Thus,
a
constitutional
argument
should
be
forwarded
substance
or
alcohol
abuse
may
force
the
licensee
against you and subsequently the Commonwealth
when
a delay
prejudices
a defendant program
and that delay
was
into
a very
rigid monitoring
with
the
If another
the board
or hearing
examiner
finds
causes
substantial
period
of delay,
filea prima
primarily caused by the courts.
licensing
board.
It
is
important
to
understand
the
facie
case
is
not
established,
the
license
and
other
6
a new Rule 600 motion based on this additional
Pa.R.Crim.P. Rule 600(D)(1).
nuances and weigh all options in strategizing
authorizations to practice the profession will
time and litigate it prior to any trial to preserve an
your game
be immediately restored. If a prima facie case
Click
here plan.
to view and/or print the
objection to the additional time period.
is established, the temporary suspension shall
full notes section for this article.
NOTES:
remain
effect
untilafter
vacated
the board,
At the
Rulein600
hearing,
the by
defense
has but
in
no
event
longer
than
one
hundred
eighty
days,
made a prima facie showing that the defendant
1
otherwise
agreed
by the
35 P.S. § 780-123(c).
hasunless
not been
broughtordered
to trial or
within
365 to
days,
2
parties.
35 P.S. § 780-123(c).
the Commonwealth bears the burden of proving
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that they have nonetheless acted with diligence.
Collateral
formade
Medical
ThisOther
means
that afterConsequences
the defense has
such
Providers
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
There is also a mandatory exclusion under
and the defense should only argue after the
42 U.S.C. § 1320a-7(a)(4) from participation in
Commonwealth
done
so. Essentially,
a Rule
Medicare andhas
state
healthcare
programs
by600
any
hearing
should
proceed
in
form
almost
identically
individual convicted under Federal or State law of
to aa suppression
hearing.
If the judge
asks you
criminal offense
consisting
of a felony
relating
to argue
prior
to
the
Commonwealth's
evidence,
to the unlawful manufacture, distribution,
make
it clear thatoryou
could notofpossibly
argue
prescription,
dispensing
a controlled
on substance.
behalf of your client until you know what the
Commonwealth's evidence of diligence is.
In essence, this means that any healthcare
* If the Commonwealth appears at the Rule 600
licensee convicted of a felony under the Drug Act
hearing
and does
notemployment
present any evidence
is excluded
from
with any that
company
it acted
with
diligence-for
instance,
did notwith
that receives payment for servicesthey
provided
bring
in theor
officer
testify to program
the attempts
made
Federal
Stateto
healthcare
funds.
As
to find
and
apprehend
the
defendant-argue
that
such, if convicted of a felony under the Drug Act,
they
not met
their burden
because
the working
burden
anhave
individual
would
be precluded
from
of proof
includes
the burden of production
as: a clerk
or administrative
assistant inand
a doctor's
office orofhospital,
clerk
a Target, Rite Aid,
arguments
counsel aare
notin
evidence.

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#EAC137

About the Author

Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Brian E.Office.
Quinn,She
concentrates his
Defender's
practice on the representation
handles appeals from all
of healthcare professionals in
units,disciplinary
juvenile toproceedings
homicide, before
and she
formulates
thealso
Pennsylvania
Bureau of
Professional
and
Occupational
legal strategy for pre-trial
Affairs as well
as defense
and trial units. Katherine graduated
Magna
Cum of
healthcare professionals in
Laude from Loyola Law School,
New
Orleans
criminal
cases.
He has been
in 2007 and was on law review.
Shecriminal
practiced
handling
cases for over
30 years. His
practice
includes
consultationout
with criminal
at Kaufman,
Coren
& Ress
in Philadelphia
attorneys
representing
professionals
of law
school,who
andare
thereafter
didhealthcare
work in the
in criminal cases. Brian was admitted to the Pennsylvania
intersection
of horseracing law and §1983 for a
and New Jersey Bars in 1985. He is a graduate of Temple
number
of
years
before
following
her passion
University School
of Law
and St. Joseph's
University. For
more information,
visit The Law Offices of Brian
for indigent
criminal please
defense.

About the Author

E. Quinn website.

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