Wittorf v. Board of Nursing - Cmwlth. Court - October 12, 2006 (publication ordered 01-10-07)
http://www.courts.state.pa.us/OpPosting/CWealth/out/338CD06_1-10-07.pdf
The Court upheld the decision of the State Board of Nursing to suspend the license of a nurse who had violated a consent agreement which he entered under the Voluntary Rehabilitation Program (VRP), 63 P.S. sec. 224.1(c).
The nurse entered the VRP agreement after he had been charged with DUI, a 2nd degree misdemeanor. The criminal case was resolved without a finding of guilt, when Wittorf successfully completed an ARD program, after which his criminal record was expunged.
The Bureau of Professional & Occupational Affairs then took action concerning his nursing license. It offered him a chance to enter the VRP in lieu of disciplinary charges being brought against him. In the VRP agreement, Wittorf stipulated that a) he was unable to practice nursing with reasonable skill and safety, due to his abuse of and dependency on alcohol. and b) that he had suffered from alcohol abuse or dependency for two years. Under the VRP agreement, Wittorf's license was suspended, but the suspension was stayed in favor of probation, conditioned on, inter alia, his complete abstention from the use of alcohol and his documented regular attendance and active participation in a support program.
The Bureau petitioned to suspend Wittorf's license when he later violated the VRP agreement by testing positive for alcohol several times and failing to submit support group attendance records after being requested to do so. At a hearing, Wittorf did not dispute violating the VRP agreement. Instead he argued that the Board had no authority to force him to enter into a VRP agreement, because he had only been charged with a misdemeanor, and the statute, 63 P.S. sec. 224(a)(5), only authorized suspension if the offense was a felony.
The Court held that Wittorf's argument ignored the Board's independent authority under 63 P.S. sec. 224(a)(2), 224(b)(4) and 224.1(c) to a) suspend or revoke a nurses license or, in the alternative, or to b) require a VRP program, when a nurse us "unable to practice....with reasonable skill and safety to patients by reason of....dependence upon alcohol...."
