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07/03/97 DEBORAH MARIE FIRMAN v. DEPARTMENT STATE

July 3, 1997

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



Appealed From No. 0200-Misc-96 and 0198-Misc-96. State Agency State Board of Medicine and State Board of Nursing.

Before: Honorable Joseph T. Doyle, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: July 3, 1997

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. *fn1 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, *fn2 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. *fn3 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). *fn4 Firman was sentenced to twenty-four months probation. *fn5

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) *fn6 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. *fn7

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 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 ...


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