Firman v. Department, State Bd. of Medicine

• Decision Date: 03 July 1997
• Citation: 697 A.2d 291
• Parties: , 10 NDLR P 197 Deborah Marie FIRMAN, Petitioner, v. DEPARTMENT OF STATE, STATE BOARD OF MEDICINE, Respondent. Deborah Marie FIRMAN, Petitioner, v. DEPARTMENT OF STATE, STATE BOARD OF NURSING, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 291

697 A.2d 291

24 A.D.D. 1093, 10 NDLR P 197

Deborah Marie FIRMAN, Petitioner, v. DEPARTMENT OF STATE, STATE BOARD OF MEDICINE, Respondent.

Deborah Marie FIRMAN, Petitioner, v. DEPARTMENT OF STATE, STATE BOARD OF NURSING, Respondent.

Commonwealth Court of Pennsylvania.

Argued April 10, 1997.

Decided July 3, 1997.

Mitchell A. Sommers, Ephrata, for petitioner.

Herbert Abramson, Harrisburg, for respondents.

Before DOYLE and LEADBETTER, JJ., and JIULIANTE, Senior Judge.

DOYLE, Judge.

Deborah Marie Firman (Firman), a Registered Nurse-Midwife, appeals an order of the State Board of Medicine and an order of the State Board of Nursing (collectively "the Board"), which suspended her Nurse-Midwife license and Nursing license respectively pursuant to Section 40(b) of the Medical Practice Act, Act of December 20, 1985, P.L 112, as amended. ¹ Because of the identity of legal and factual issues presented by Firman's appeal of these orders, her appeals were consolidated by an order of this Court dated February 18, 1997. The facts are summarized as follows.

Since 1989, Firman had been taking Darvocet, ² by doctor's prescription, for occasional migraine headaches. However, beginning in January of 1995, the frequency of the headaches began to increase along with the amount of Darvocet she was taking. Faced with an increasing dependence of Darvocet, she began to forge prescriptions for Darvocet and other drugs.

On September 15, 1995, in Howard County Maryland, Firman forged a prescription, presented it to be filled, and obtained Alprazolam. ³ Again on October 29, 1995, in Howard County, Firman forged a prescription, presented it to be filled, and obtained Darvocet.

On January 16, 1996, the Maryland authorities lodged a criminal complaint against Firman with the District Court of Maryland for Howard County. On September 9, 1996, as part of a plea bargain, Firman pled guilty to one count of obtaining a Schedule IV controlled substance (Darvocet) by fraud and one count of possession of a Schedule IV controlled substance (Darvocet). ⁴ Firman was sentenced to twenty-four months probation. ⁵

On December 10, 1996, upon learning of Firman's guilty plea in Maryland, the Pennsylvania State Board of Medicine issued a "Notice and Order of the Automatic Suspension of the Nurse-Midwife License of Deborah Marie Firman, R.N., License No. MW-008419-L." Similarly, on January 21, 1997, the State Board of Nursing issued a "Notice and Order of Automatic Suspension." These orders suspended Firman from the practice of midwifery and nursing, respectively, pursuant to Section 40(b) of the Medical Practice Act which provides:

A license or certificate issued under this act shall automatically be suspended upon ... conviction of a felony under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or conviction of an offense under the laws of another jurisdiction, which, if committed in the Commonwealth, would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act. As used in this section the term 'conviction' shall include a judgment, an admission of guilt or a plea of nolo contendere.

63 P.S. § 422.40(b) (emphasis added). Firman now appeals her suspensions to this Court pursuant to Section 763 of the Judicial Code, 42 Pa.C.S. § 763, relating to direct appeals from governmental agencies such as the State Boards of Medicine and Nursing.

Our standard of review is limited to a determination of whether constitutional rights have been violated, whether the findings of fact are supported by substantial evidence, and whether errors of law have been committed. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Slawek v. State Board of Medical Education and Licensure, 526 Pa. 316, 586 A.2d 362 (1991).

On appeal, Firman argues that her automatic suspensions under Section 40(b) of Pennsylvania's Medical Practice Act violate Title II of the Americans with Disabilities Act (ADA) ⁶ and 28 C.F.R. § 35.131 (prohibiting state and local government discrimination against past drug users). Firman then mounts a challenge to Section 40(b) of the Medical Practice Act based on Article VI, Clause 2 of the United States Constitution, commonly referred to as the Supremacy Clause. ⁷

The essence of Firman's argument is that Section 40(b) of the Medical Practice Act provides more severe sanctions for drug related felony crimes than the rest of the Act provides for non-drug related felony crimes and, therefore, it discriminates against drug addicts in violation of Title II of the ADA.

To decide whether Section 40(b) of the Medical Practice Act violates the ADA, the Court must "begin with the language of the [ADA] itself, including all of its parts. There is no need to resort to legislative history unless the statutory language is ambiguous." Velis v. Kardanis, 949 F.2d 78, 81 (3d Cir.1991). The Section of the ADA relied upon by Firman provides that:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by such entity.

42 U.S.C. § 12132 (emphasis added).

The language of Section 12132 of the ADA proscribes discrimination based on status, i.e., drug addiction, while Section 40(b) of the Medical Practice Act addresses only the licensee's conduct, specifically, misconduct in the form of felony violations of the Drug Act. ⁸ Although, Section 12132 of the ADA prohibits public entities, such as the Board, from discriminating against qualified individuals by reason of their disabled status, see Clark v. Virginia Board of Bar Examiners, ⁹ the facts of this case do not present such discrimination.

The automatic suspension language of Section 40(b) provides for automatic license suspension when the license holder commits a drug-related felony which is, of course, misconduct. It does not however, provide for automatic license suspension in the case of licensees who are merely disabled by virtue of their drug addiction; that is to say, by virtue of their status. It does not deny a disabled person, because of her drug addiction, entrance into any program, medical or otherwise, because of that disability. Because Section 40(b) classifies persons solely based on their conduct without regard to their status, it passes muster under Section 12132 of the ADA.

Nevertheless, Firman attempts to link her drug-related felonious conduct to her disability by claiming that the nexus between her disability and her conduct is so close that the two are merged. Firman argues that the Board, by punishing drug-related misconduct, is likely to sanction a disproportionate number of persons suffering from drug addiction disability and, thereby, discriminate against them. Therefore, a fortiori, Firman posits a causal connection between disability status and conduct of precisely the type that the ADA forbids. In the context of other anti-discrimination statutes, it has been held to be fundamental that an individual's status cannot be used to make generalizations about that individual's behavior. Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 710-11, 98 S.Ct. 1370, 1376-77, 55 L.Ed.2d 657 (1978). Conduct and status are, therefore, conceptually distinct and misconduct is a permitted basis upon which the Board may make licensing decisions.

Firman's second challenge to her suspension is that the automatic suspension provisions of Section 40(b) violate her right to procedural due process because they require automatic suspension of her license without a prior hearing. We disagree because we believe that Firman received a constitutionally appropriate hearing.

"Once obtained, a [medical professional] has a property interest in his or her medical license." Shah v. State Board of Medicine, 139 Pa.Cmwlth. 94, 589 A.2d 783, 789, petition for allowance of appeal denied, 528 Pa. 646, 600 A.2d 197 (1991). The United States Supreme Court has held that "an essential principle of due process is that a deprivation of life, liberty, or property [interests] be preceded by notice and an opportunity for a hearing appropriate to the nature of the case." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 1493-94, 84 L.Ed.2d 494 (1985). "We have described 'the root requirement' of the Due Process Clause as being 'that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.' " Id. (quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971)) (emphasis in original). "This principal requires 'some kind of a hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment." Id. (quoting Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972)).

However, due process is a flexible standard and the process that is due depends on the particular situation. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The constitutional minimum may be satisfied where the licensee has access to the material upon which the charge is based and the opportunity to respond to the charge. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); see also Barry v. Barchi, 443 U.S. 55, 65, 99 S.Ct. 2642, 2649-50, 61 L.Ed.2d 365 (1979) (no due process violation where horse trainer whose license was suspended was given an opportunity to present his side of the story). In Mathews, the United States Supreme Court set forth three factors to be considered when determining whether a particular procedure satisfies due process:

[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of...