The Appellate Division continued in relevant part: Contrary to the State’s arguments, we conclude that a violation of PALA is not criminal. PALA explicitly states “any physician assistant who practices in violation of any of the conditions specified in subsection a. of this section shall be deemed to have engaged in professional misconduct.” N.J.S.A. 45:9-27.15(b). Such professional misconduct violations are resolved by the Board. N.J.S.A. 45:9-27.15(b); N.J.S.A. 45:9-27.17(b). The statutory provisions and related regulations authorize the Board to suspend or revoke a physician assistant license, but do not subject a physician assistant or a physician to criminal sanctions. Indeed, Campione ultimately received a three-year suspension of his physician assistant license. He is also responsible for costs and fees if he violates the consent order. These are civil penalties, not criminal sanctions.
As we recently explained in State v. Saad, ___ N.J. Super. ___ (App. Div. 2019): In addition, we do not accept the premise that the elements of a crime can be defined by an administrative regulation, which can be amended or repealed by the Board without involvement of the Legislature. Moreover, interpreting the statute to incorporate the regulation would introduce ambiguity as to which acts constitute criminal behavior, raising serious concerns regarding notice. Accordingly, an agreement to promote or facilitate a violation of PALA is not a criminal conspiracy.
While the State presented enough evidence to the grand jury showing Campione violated N.J.S.A. 2C:21-20(c) by knowingly holding himself out as a person eligible to practice medicine, the record does not support the State’s theory that Katz and Campione conspired to make patients believe Campione was a medical doctor. In addition, there is insufficient evidence that Campione violated N.J.S.A. 2C:21-20(a) or (d) to impute Campione’s alleged unlawful practice of medicine to Katz. For these reasons, we affirm the dismissal of count one with prejudice.
The dismissal “with prejudice” might encourage the State to appeal this decision to the New Jersey Supreme Court. To the extent they develop additional evidence or an alternat theory based on the evidence that they possess, an appeal would be necessary to overturn the “with prejudice” aspect of this decision.
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