L.J. Kansky, DPM v. State Board of Podiatry

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lawrence J. Kansky, DPM, :
Petitioner :
:
v. :
:
State Board of Podiatry, : No. 743 C.D. 2022
Respondent : Submitted: March 31, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: July 21, 2023
Lawrence J. Kansky, DPM (Kansky), representing himself,1 petitions
for review of a Final Order of the Commonwealth of Pennsylvania, Bureau of
Professional and Occupational Affairs, State Board of Podiatry (Board), dated June
21, 2022. Kansky is seeking reinstatement of his license to practice podiatry, which
he voluntarily relinquished in 2008. In its Final Order, the Board reinstated
Kansky’s license to “expired–on probation” status and set forth a number of
conditions Kansky would have to satisfy in order to apply for reactivation of his
license. Certified Record (C.R.), Item #18. Upon review, we affirm the Board’s
Final Order.
1
Kansky is also a licensed attorney.
I. Background
Kansky was licensed as a podiatrist in Pennsylvania. Reproduced
Record (RR) at 3a & 34a. In the course of his practice, he maintained three medical
offices. Id. at 38a & 171a. He sometimes administered and dispensed the opiate
hydrocodone, a controlled substance, to patients for pain related to his treatment of
their medical conditions. Id. at 55a, 83a & 171a. Kansky had shipments of
hydrocodone delivered to his home and then distributed it among his three offices.
Id. at 38a. Kansky did not maintain records concerning his administering and
dispensing of hydrocodone. Id. at 4a.
In 2007, law enforcement authorities disclosed to Kansky that they
were investigating his purchases of hydrocodone and requested a log of such
purchases relating to the period from January to June 2006. RR at 3a-4a & 171a.
Kansky had no such log; he acknowledged his lack of record-keeping and also
admitted that he had been self-administering hydrocodone, ostensibly to treat his
dental pain. Id. at 4a, 37a-39a & 171a.
In October 2007, Kansky voluntarily surrendered his podiatry license
to the Board, stating in his accompanying letter that he was retiring completely and
permanently from the practice of podiatry and was requesting that his license be
placed on permanent inactive status. RR at 1a. In November 2007, Kansky pleaded
no contest2 in the Court of Common Pleas of Luzerne County to one count of
2
A defendant’s plea of no contest has been described as “not admitting he committed the
crime but agreeing that should the matter proceed to the scheduled trial the Commonwealth would
likely be able to meet its burden of proof with the effect being the same and that is a conviction
for the noted charges . . . .” Commonwealth v. Ortiz (Pa. Super., Nos. 1690 & 1691 MDA 2019,
filed Mar. 27, 2020), slip op. at 4 (quoting county court’s post-conviction relief decision)
(additional quotation marks omitted). Ortiz is cited as persuasive pursuant to Section 65.37(A) of
the Superior Court’s Internal Operating Procedures, 210 Pa. Code § 65.37(A). See also
2
acquiring a controlled substance, i.e., hydrocodone, by misrepresentation, fraud,
forgery, or deception, in violation of Section 13(a)(12) of The Controlled Substance,
Drug, Device and Cosmetic Act (Drug Act),3 35 P.S. § 780-113(a)(12). Id. at 4a.
He received a sentence of six months’ probation without verdict,4 after which the
charges were subject to possible dismissal. Id.
In March 2008, Kansky executed a Consent Agreement and Order
(Consent Order), which the Board accepted in April 2008. RR at 3a-___
(unnumbered).5 In the Consent Order, Kansky expressly acknowledged that he had
failed to maintain required records when administering and dispensing hydrocodone
Commonwealth v. Camacho-Vasquez, 81 Pa. D. & C.4th 353, 365 (C.P. 2007) (explaining that a
plea of no contest “requires that a defendant acknowledge he has no defense”).
3
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 – 780-144.
4
Section 17 of the Drug Act allows a court to impose a sentence of “probation without
verdict” if the defendant pleads no contest to a nonviolent offense under the Drug Act and “proves
he is drug dependent.” Kearney v. Bureau of Pro. & Occupational Affs., State Bd. of Med., 172
A.3d 127, 132 (Pa. Cmwlth. 2017) (quoting 35 P.S. § 780-117). Upon imposition of a sentence of
probation without verdict, the defendant’s plea is “held in abeyance, or not accepted,” and if the
defendant satisfactorily completes the terms and conditions of probation, “the trial court dismisses
the charges and there is no verdict or finding of guilt in the matter.” Kearney, 172 A.3d at 132.
We note that the Drug Act’s requirement of proof of drug dependency in order to qualify for
probation without verdict stands in contrast to Kansky’s repeated insistence that he has never been
dependent on drugs. See, e.g., RR at 83a-84a, 112a, 172a & 176a.
As this Court observed in Kearney, “[i]n some statutes, our General Assembly, without
using the word ‘conviction,’ has expressly included the phrase ‘probation without verdict’ to
describe the basis upon which a licensing board can refuse, suspend, or revoke a professional
license.” 172 A.3d at 132. The Podiatry Practice Act, Act of March 2, 1956, P.L. (1955) 1206, as
amended, 63 P.S. §§ 42.1 – 42.21c (Podiatry Act), is one such statute. Section 16(a)(2) of the
Podiatry Act allows the Board to suspend, revoke, cancel, or refuse to grant a license as a
consequence of “[p]leading guilty or [no contest] to, or being found guilty, or receiving probation
without verdict, disposition in lieu of trial, or an Accelerated Rehabilitative Disposition in the
disposition of felony charges or an offense in connection with the practice of podiatric medicine
. . . .” 63 P.S. § 42.16(a)(2) (emphasis added).
5
The Consent Order’s final page is not numbered but falls between pages 7a and 8a in the
reproduced record.
3
to patients and that he had self-medicated with hydrocodone. Id. at 4a. He further
acknowledged that his conduct, including his plea of no contest and his sentence of
probation, made him subject to disciplinary action under the Podiatry Practice Act
(Podiatry Act). Id. at 5a. The Consent Order allowed Kansky to apply for
reinstatement of his license after a period of at least three years. Id. at 6a. However,
reinstatement would not be automatic, as the Consent Order provided further that
“[s]hould the Board choose to reinstate [Kansky’s] license to practice podiatry, it
may reinstate the license subject to any terms and conditions that the Board in its
sole discretion deems to be reasonable and appropriate, after reasonable notice and
a hearing.” Id. (emphasis added). The Consent Order also explicitly provided that
it “constitute[d] a public action” and that the Board would report it “to entities
including, but not limited to, the National Practitioner Data Bank, the Healthcare
Integrity and Protection Data Bank, if applicable, the Federation of State Medical
Boards, the licensing authority of any state or jurisdiction, government entities, and
any private or public health care facility.” Id. at 5a-6a.
Kansky verified the facts and statements in the Consent Order “subject
to the criminal penalties of Section 4904 of the Crimes Code, 18 Pa.C.S. § 4904[6]
6
Section 4904(a) and (b) of the Crimes Code provides:
(a) In general.--A person commits a misdemeanor of the second
degree if, with intent to mislead a public servant in performing his
official function, he:
(1) makes any written false statement which he does not
believe to be true;
(2) submits or invites reliance on any writing which he
knows to be forged, altered or otherwise lacking in
authenticity; or
4
relating to unsworn falsification to authorities.” RR at ___ (unnumbered).7 The
Consent Order also contained a statement that the parties intended to be legally
bound by its provisions. Id. at 5a. Significantly, Kansky was represented by legal
counsel in connection with his execution of the Consent Order. Id. at 35a; C.R.,
Item #3 at 14.
In December 2020, Kansky applied to the Board for reinstatement of
his podiatry license. RR at 8a-9a & 11a. He submitted a criminal record check, a
verification that he had not practiced podiatry since surrendering his license, an
updated curriculum vitae, documentation of continuing medical education credits
from 2012, and a psychiatric report. See id. at 8a-9a & 11a-13a.
The Board appointed its Chief Hearing Examiner to hold a hearing on
Kansky’s application; that hearing was held in April 2021. RR at 16a. Kansky, who
is now an attorney, represented himself at the hearing. Id. at 17a On cross-
examination by counsel for the Board, Kansky made a number of critical admissions.
Kansky acknowledged that in the Consent Order, while represented by
legal counsel, he admitted that he had not kept legally required records concerning
(3) submits or invites reliance on any sample, specimen,
map, boundary mark, or other object which he knows to be
false.
(b) Statements “under penalty”.--A person commits a misdemeanor
of the third degree if he makes a written false statement which he
does not believe to be true, on or pursuant to a form bearing notice,
authorized by law, to the effect that false statements made therein
are punishable.
....
18 Pa.C.S. § 4904(a) & (b).
7
The cited page is not numbered but falls between pages 7a and 8a of the reproduced
record.
5
the hydrocodone he dispensed to patients. RR at 36a-38a. Kansky also admitted he
had hydrocodone delivered to his house and then distributed it among his three
offices. Id. at 38a. He admitted that doing so violated applicable regulations, but he
claimed he did not know at the time that his conduct was not legal. Id. at 55a-56a.
Nonetheless, he specifically acknowledged the Board’s authority to take disciplinary
action against him based on his sentence of probation without a verdict on the felony
charge to which he pleaded no contest. Id. at 41a.
Kansky also admitted to self-medicating with hydrocodone for dental
pain. RR at 38a-39a. In addition, he admitted he may also have self-medicated at
times for other maladies such as injuries and headaches. Id. at 39a. He testified that
when prescribing opioids and narcotics, he was required to practice within the scope
of his license and keep documentation of the prescribed medication in the patient’s
file. Id. at 54a. However, he offered no evidence that he did either regarding his
self-medication with the hydrocodone he purchased for his podiatry practice.
In his closing argument, Kansky “agree[d] with just about everything
[the Board’s counsel] said because the issues he brought up ma[d]e sense . . . .” RR
at 96a. Kansky specifically agreed that he needed some continuing education credits
and needed “to satisfy the Board a little bit further regarding competence.” Id. The
only concern he expressed was with how the Board would decide how he should be
monitored to determine his competence; he requested that his wife, an internist, be
allowed to monitor him because “that would be the easiest.” Id. at 98a. In the
alternative, he requested monitoring by “a local podiatrist.” Id. at 99a. Kansky also
stated, “I don’t have a problem with taking assessment exams and then I have
confidence I’ll pass but if I don’t and they [sic] therefore recommend some
6
corrective measures of [continuing education] if I was weak in a subject I don’t have
a problem with that.” Id. Finally, Kansky commented:
I’ll follow rules and regulations. But law school taught me
one thing, that if I think it’s incorrect I need to exercise my
right at the time. And once that’s vetted and they [sic]
make a ruling that’s the end of it . . . .
As [the Board’s counsel] said I was ignorant, and I really
was . . . . But it is what it is. And you can’t go back. I
can only go forward. And that’s what I want to do . . . .
Id. at 100a.
In May 2021, the Chief Hearing Examiner issued a proposed
adjudication and order. RR at 105a-25a. Kansky filed exceptions, which the parties
briefed. On June 21, 2022, the Board issued the Final Order reinstating Kansky’s
license to “expired–on probation status” and directing, in part, as follows:
[Kansky] may apply to reactivate his license but must sit
to retake the podiatry licensing examination and, provided
he successfully takes and passes the examination and
submit[s] to the Board all required fees and documentation,
including satisfactory proof that he has completed the
requisite continuing education, current criminal record
check, and proof of compliance with the Commonwealth’s
medical malpractice insurance requirements.
Upon reactivation, [the] license shall be IMMEDIATELY
placed on PROBATION for no less than TWO YEARS.
During the probationary period, [Kansky] is subject to the
following terms and conditions . . . .
Id., Item #18 at 1. The probationary conditions included “monitoring, supervision,
and investigation” by the Commonwealth’s Bureau of Enforcement and Investigation
(BEI) and Kansky’s cooperation with those activities, as well as ongoing written
notifications by Kansky to the Board’s probation compliance office regarding any
changes in his address, office locations, or contact information. Id. at 3.
7
Kansky’s petition for review in this Court followed.8
II. Issues
Kansky asserts two arguments on appeal. First, he contends that the
Final Order is unenforceable because Section 16(a)(2) of the Podiatry Act, 63 P.S.
§ 42.16(a)(2), on which the Board based its adjudication, is unconstitutional and
therefore void ab initio. Second, Kansky contends that the Final Order was based
on bad faith and abuse of discretion and was not supported by substantial evidence.
In opposition to these arguments, the Board asserts that Kansky did not
appeal from the Consent Order and that he cannot challenge its enforceability
collaterally 13 years later. The Board further argues that it properly exercised its
discretion by reviewing the entire record, that its Final Order was supported by
substantial evidence, and that it did not abuse its discretion; rather, Kansky merely
disagrees with the weight the Board assigned to the evidence in the exercise of its
discretion.
III. Discussion
A. Enforceability of the Consent Order
In his ersatz constitutional argument, Kansky is essentially arguing that
he was not convicted of a crime based on his plea of no contest, and therefore,
Section 16(a)(2) of the Podiatry Act was not a valid basis to subject him to discipline.
Kansky insists he “is not now arguing that the Consent [Order] is not a valid
8
“Our scope of review of the Board’s order is limited to considering whether necessary
factual findings are supported by substantial evidence, whether the Board erred as a matter of law,
and whether constitutional rights were violated.” Long v. Bureau of Pro. & Occupational Affs.,
State Bd. of Podiatry, 112 A.3d 671, 674 n.2 (Pa. Cmwlth. 2015).
8
agreement between the parties[;] he is arguing that all Board disciplinary actions
contained in the Consent [Order] are not enforceable, as . . . they originate from
[the Board’s] total reliance on 63 P.S. § 42.16(a)(2) of the Act, . . . which is
unconstitutional . . . .” Kansky Br. at 10.
The Board responds that Kansky is improperly attempting to re-litigate
the Consent Order and that Kansky cannot challenge the constitutionality of the
Consent Order through the vehicle of a license reinstatement petition filed 13 years
after the entry of the Consent Order. We agree.
As the Board correctly observes, a judgment entered by consent “binds
the parties with the same force and effect as if a final decree ha[d] been rendered
after a full hearing on the merits.” Board Br. at 12 (first quoting Zampetti v.
Cavanaugh, 176 A.2d 906, 909 (Pa. 1962) (additional quotation marks omitted)9;
and then citing Pa. Hum. Rels. Comm’n v. Ammon K. Graybill, Jr., Inc., Real Estate,
393 A.2d 420, 422 (Pa. 1978)). Kansky did not appeal the Consent Order and thus
never obtained a judicial determination overturning or invalidating the Consent
Order. Further, at his reinstatement hearing before the Chief Hearing Examiner,
Kansky was specifically asked whether he acknowledged “. . . the Board’s authority
to have taken disciplinary action based on [pleading no contest and receiving
probation without verdict in the disposition of one felony charge].” RR at 41a.
Kansky testified that “[a]ccording to [his] attorney, [the Board] had the authority.
And so, the answer’s yes.” Id. Having acknowledged under oath at the hearing that
the Board was authorized to impose discipline upon him as set forth in the Consent
Order’s provisions, Kansky is bound by those provisions.
9
The quotation is as stated by the Board, with minor non-substantive changes from the
quoted language in Zampetti.
9
Moreover, parties may waive even constitutional challenges by failing
to assert them timely and properly. In re J.M.Y., 218 A.3d 404, 417 (Pa. 2019)
(explaining that “[e]ven constitutional challenges must be brought in a manner
specified by law, and in a timely fashion, or else they are waived”) (citing
Commonwealth v. Knox, 190 A.3d 1146, 1152 n.5 (Pa. 2018) (observing that
“[c]onstitutional claims are subject to waiver regardless of their importance”)); Haaf
v. Zoning Hearing Bd., 625 A.2d 1292, 1296 (Pa. Cmwlth. 1993) (concluding that
zoning applicant waived its right to pursue a challenge to the constitutional validity
of a zoning ordinance when it entered into a compromise agreement with the zoning
hearing board). Such a waiver precludes the party from asserting a collateral attack.
See Mitchell v. United Elevator Co., 434 A.2d 1243, 1247 (Pa. Super. 1981)
(explaining that where a litigant fails to raise an issue on direct appeal, the doctrine
of waiver precludes a collateral attack, even regarding errors of constitutional
dimension) (quotation marks and additional citations omitted). Here, it is undisputed
that Kansky made no attempt to appeal or otherwise assert a prompt challenge to the
validity of the Consent Order. Accordingly, he waived any such challenge and may
not raise it now through a collateral attack. As Kansky himself commented in his
closing argument to the Chief Hearing Examiner, “if I think it’s incorrect I need to
exercise my right at the time. And once that’s vetted and they [sic] make a ruling
that’s the end of it . . . . [I]t is what it is. And you can’t go back . . . .” RR at 100a.
B. The Board’s Exercise of Discretion
In a related argument, Kansky asserts that the Board’s decision should
be reversed because it constituted bad faith and an abuse of discretion and was not
supported by substantial evidence. We discern no merit in this argument.
10
Kansky alleges that the Board made numerous false or unsupported
statements in its decision regarding his failure to maintain legally required logs when
dispensing hydrocodone, as well as regarding his expunged conviction.10 Kansky
also argues that the Board ignored evidence that supported his position and that the
Board’s decision therefore was not supported by substantial evidence.
“Substantial evidence is defined as evidence that a reasonable mind
might accept as sufficient to support the conclusion reached.” Frimet v.
Unemployment Comp. Bd. of Rev., 78 A.3d 21, 26 n.7 (Pa. Cmwlth. 2013)
(additional citation omitted). “Where substantial evidence supports [an agency’s]
findings, they are conclusive on appeal . . . . Further, it is irrelevant whether the
record contains evidence supporting findings other than those made by the
[agency]; the proper inquiry is whether the record supports the findings actually
made.” Id. (emphasis added) (additional citation omitted).
Here, the record contained substantial factual evidence to support the
Board’s decision. Indeed, the evidence consisted largely of Kansky’s own
admissions during his hearing testimony. Kansky acknowledged having admitted in
the Consent Order that he had not kept records of the hydrocodone he dispensed to
patients. RR at 36a-38a. He also admitted that he had hydrocodone delivered to his
house and then distributed it among his three offices. Id. at 38a. He further admitted
to self-medicating with hydrocodone for dental pain. RR at 38a-39a. In addition,
he admitted he may also have self-medicated at times for other maladies such as
10
Regarding the expunction, Kansky alleges that the Board made a “knowingly false”
statement that his sentence of probation without verdict justified suspension of his podiatry license,
when in fact his record regarding that sentence was subject to expunction. Kansky Br. at 20.
However, as noted on page 3 above, Section 16(a)(2) of the Podiatry Act expressly allows the
Board to suspend, revoke, cancel, or refuse to grant a license as a consequence of, inter alia,
“receiving probation without verdict . . . .” 63 P.S. § 42.16(a)(2). Thus, the Board’s statement
was true.
11
injuries and headaches. Id. at 39a. Thus, the Board’s findings were supported by
substantial undisputed evidence.
To the extent that Kansky’s assertions are based on legal arguments,
those arguments are also without merit. First, as discussed in the previous section,
Kansky has waived any challenge to the validity or enforceability of the Consent
Order. As most of his factual arguments depend on refuting admissions contained
in the Consent Order, those arguments are likewise waived.
Further, Kansky’s legal arguments in opposition to the Board’s
conclusions are meritless. He is incorrect in suggesting that he was not legally
required to maintain dispensary logs concerning his administration of hydrocodone
to his patients. Kansky relies on Section 12(a) of the Drug Act, which provides:
(a) Every person who sells or otherwise distributes
controlled substances, shall keep records of all purchases
or other receipt and sales or other distribution of such
substances for two years from the date of purchase or sale.
Such records shall include the name and address of the
person from whom purchased or otherwise received or to
whom sold or otherwise distributed, the date of purchase
or receipt or sale or distribution, and the quantity involved:
Provided, however, [t]hat this subsection shall not apply
to a practitioner who dispenses controlled substances to
his patients, unless the practitioner is regularly engaged
in charging his patients, whether separately or together
with charges for other professional services, for
substances so dispensed.
35 P.S. § 780-112(a) (emphasis added). Kansky insists, without evidentiary support,
that he distributed hydrocodone to his patients for free and therefore did not have to
keep records under Section 12(a). However, even putting aside the lack of any
record support for Kansky’s self-serving claim that he did not charge patients for
12
hydrocodone he dispensed to them, his argument ignores the record-keeping
requirements imposed by Section 12(b) of the Drug Act, which provides:
(b) Every practitioner licensed by law to administer,
dispense or distribute controlled substances shall keep a
record of all such substances administered, dispensed or
distributed by him, showing the amount administered,
dispensed or distributed, the date, the name and address of
the patient, and in the case of a veterinarian, the name and
address of the owners of the animal to whom such
substances are dispensed or distributed. Such record shall
be kept for two years from the date of administering,
dispensing or distributing such substance and shall be
open for inspection by the proper authorities.
35 P.S. § 780-112(b) (emphasis added). Kansky was undisputedly a practitioner
licensed by law to administer, dispense or distribute controlled substances.
Therefore, he was required to maintain records of all such substances he
administered, dispensed, or distributed. He admittedly did not maintain any such
records.
Kansky admitted that having hydrocodone delivered to his house and
then distributing it among his three offices violated applicable regulations. RR at
55a-56a. He also acknowledged the Board’s authority to take disciplinary action
against him based on his sentence of probation without a verdict on the felony charge
to which he pleaded no contest. Id. at 41a. Kansky further admitted that when
prescribing opioids, he was required to practice within the scope of his podiatry
license and keep documentation of the prescribed medication in the patient’s file.
Id. at 54a. However, none of the stated purposes of his self-medication (dental pain,
unspecified injuries, and headaches) were shown to be within the scope of his
podiatry practice, nor did he produce documentation of his self-medication that had
been maintained in any kind of file.
13
The undisputed facts discussed above provide substantial evidence in
support of the Board’s findings. In addition, the legal authorities cited above support
the Board’s reasoning and conclusions. Accordingly, we will not disturb the Board’s
decision.
IV. Conclusion
Based on the foregoing analysis, we affirm the Board’s Final Order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lawrence J. Kansky, DPM, :
Petitioner :
:
v. :
:
State Board of Podiatry, : No. 743 C.D. 2022
Respondent :
ORDER
AND NOW, this 21st day of July, 2023, the Final Order of the
Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs,
State Board of Podiatry, dated June 21, 2022, is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge