When Dentists Go Too Far: North Carolina Board of Dental Examiners v. Federal Trade Commission

Screen Shot 2015-03-17 at 12.25.17 PMhttp://www.forbes.com/sites/georgeleef/2015/03/04/eeoc-keeps-its-losing-streak-intact-reinforces-the-case-against-administrative-law/


The recent strike down of anticompetitive regulation in N.C. dental case opens the door to antitrust litigation against other state Regulatory Agencies such as Medical Boards.

The Federation of State Physician Health Programs has set up a “hidden” system of coercion and control using various methods (policy and moral entrepreneurship, changes in state medical practice acts and administrative procedure, misuse of health law, etc.) to create a system that lacks oversight and regulation. As a power unto themselves they are accountable to no one.

Although originally funded by medical societies and staffed by volunteer doctors in order to help sick colleagues and protect the public, any system can be subverted for profit and power, and these programs have been taken over by groups representing the multi-billion dollar drug and alcohol testing, assessment and treatment industry and become reservoirs of bad medicine and fraud. All manner of abuse can be hidden under a veil of benevolence. Although most are afraid to speak publicly under fear of punishment and retaliation (“swift and certain” consequences, summary suspension) I have herd from many many doctors in multiple states. Their stories are all the same.

In addition to misconduct related to the non-FDA laboratory developed tests (they themselves introduced into the market using a loophole that bypasses FDA approval) there are reports of coercion into unneeded evaluation and treatment at a couple dozen or so “PHP-approved” facilities under threat of loss of licensure.

Reports to a state PHP can be done anonymously with confidentiality guaranteed to the reporter. Any report will result in a meeting with the state PHP and if they feel a licensee is in need of an assessment they require it be done at a “PHP-approved” assessment center.

As non-profit tax exempt corporations, PHPs do not provide clinical assessments. They can only recommend assessments.  State Regulatory Agencies (Medical Boards, Nursing Boards, etc.) have accepted the PHPs requirements of limiting assessments to those approved by the PHP.   In fact many states mandate assessments to solely  “PHP-approved” assessment centers under threat of summary suspension of a professional license.

An Audit of the North Carolina PHP by State Auditor Beth Woods, however,  found financial conflicts-of-interest in the use of these predominantly out-of-state assessment facilities to which the N.C. PHP was referring and the state Medical Board was requiring.  Woods requested the qualitative indicators and quantitative measures used to  “approve” these assessment centers from the N.C. PHP but they were unable to produce any documentation showing any quality indicators or objective criteria existed!  The best response they could come up with was “informal” methods and “reputation.” The full audit can be seen here.

Imagine if the FDA gave this reply if  asked to provide the criteria used to “approve” medications or medical devices in the “FDA-approval” process!

Making matters even worse, the Medical Director of the N.C. PHP, Dr. Warren Pendergast was serving as President of their national organization, the FSPHP at the time of the audit.

The simple fact is no criteria exist.

A recent class action lawsuit in Eastern Michigan found this same pattern of referral to out-of-state assessment and treatment centers ( Marworth, Talbott, Hazelden. Promises,etc.)

State referrals to “PHP-approved” facilities has become a matter of public policy. Both the American Society of Addiction Medicine and the Federation of State Medical Boards have issued public policy statements stating that only “PHP-approved” centers be utilized by Regulatory Agencies in the assessment and treatment of their licensees.  Moreover, these policies specifically exclude “non-PHP-approved facilities and often involve a limited time-frame.  No choice, no appeal and no bartering.  Do it. Do it now and if you don’t suffer the consequences.

These public policy statements can be seen in the 2011 ASAM “Public Policy Statement on Coordination between Treatment Providers, Professionals Health Programs and Regulatory Agencies” and the 2011 FSMB “updated Policy on Physician Impairment.”  Many state Regulatory Agencies have strictly adhered to these policy recommendations.

What this means is that  states are mandating evaluations at  “PHP-approved” facilities even though there is no documentable or plausible reason for doing so.  No measurable criteria exist as to how the list of “approved” facilities were “approved” yet they have “cornered the market,” removed choice and created an imposed monopoly under threat of loss of professional licensure.

In reality no official “PHP-approved” list exists.  Neither does any objective published criteria for approving them.  At the same time state Regulatory Agencies and Boards are forcing evaluations on licensed professionals at these couple-dozen or so facilities.  They are excluding patient autonomy and choice violating the fundamental freedoms of the individual and informed consent.

All semblance of due process has been removed.  If  a plausible reason existed (i.e. they met some minimum standard of credentialing, quality or patient outcome) for referring to a proscribed list of assessment centers it could be arguably justified.  Without such criteria, and in light of the economic and ideological conflicts of interest involved, it is patently unjustifiable.

Even more disturbing is, as Drs. John Knight and J. Wesley Boyd (who collectively have more than 20 years experience as Associate Directors at the Massachusetts PHP, PHS, Inc.) pointed out in their 2012 paper published in the Journal of the American Society of Addiction Medicine,  many of these facilities are willing to “tailor” the diagnosis and recommendations of an evaluation to fit the wishes of the PHP.    “Tailoring” an assessment and recommendations to anything other than what the true data show is healthcare fraud.  It is, in fact,  the political abuse of psychiatry.

PHPs started out as “Physicians Health Programs” but many are transitioning to “Professionals Health Programs”  to widen the net.  For example in Michigan  and Florida the state PHP covers all health care practitioners from Acupuncturists to Veterinarians. PHPs have also entered non -healthcare employee assistance programs (EAPs) such as the aviation industry and the grand plan is expansion to  non-healthcare professions. They are doing this by claiming remarkable success rates and brandishing themselves as the “gold-standard” of substance abuse treatment.   Interestingly, the same individuals claiming how successful PHP programs are are the same individuals profiting from the drug and alcohol testing they introduced.  Anyone with any sort of license is at risk.

So whether you cut hair, teach, take care of patients or even drive a car they could be coming after you next and they don’t have to convince you of the validity and reliability of their services–they only need to convince those who regulate your license and, as we have seen, they are very accomplished at persuasion in this department.

And that is why we need more state audits of PHPs and Medical Boards.  The starting point is simple. Request from the state PHP and Board  a  list of “PHP-approved” facilities and the criteria by which they were approved. What should be a simple reply will undoubtedly not be as they will not be able to provide either.

Article 8

Antitrust litigation hasn’t disappeared, but rather changed its focus. Instead of targeting the great railroad empires of the late 19th century, today’s antitrust efforts focus on more minute industries, like dentistry.

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Class Action Suit Filed Against Michigan PHP Alleging Constitutional Violations Related to Involuntary Treatment

Screen Shot 2015-01-09 at 1.59.40 AMA Federal class action lawsuit has been filed in the Eastern District of Michigan against the state PHP program alleging constitutional violations related to the forced medical treatment of health care professionals involved in the State’s  “Professionals Health Program” (PHP)  and the “callous and reckless termination of professional licenses without due process.”  According to the complaint:

“The Health Professional Recovery Program (HPRP) was established by the Michigan Legislature as a confidential, non-disciplinary approach to support recovery from substance use or mental health disorders. The program was designed to encourage impaired health professionals to seek a recovery program before their impairment harms a patient or damages their careers through disciplinary action. Unfortunately, a once well-meaning program, HPRP, has turned into a highly punitive and involuntary program where health professionals are forced into extensive and unnecessary substance abuse/dependence treatment under the threat of the arbitrary application of pre-hearing deprivations (Summary Suspension) by LARA.filed in the the State of Michigan and a private contractor (Ulliance, Inc. of Troy, Michigan) engaged in a conspiracy to violate the civil rights of Michigan health professionals by involuntarily subjecting them to excessive and unnecessary treatment for substance abuse and suspending their licenses if they do not comply.”

As is the case with most PHPs across the country taken over by the FSPHP the mechanics and mentality are the same.  Referrals can be made anonymously by “colleagues, partners, hospital administrations, patients, family members, or the State” to the PHP for any health professional (from acupuncturist to veterinarian) exhibiting “potential signs of impairment”

The HPRP website states the names of those reporting are kept confidential “unless testimony is needed at a later disciplinary hearing.”

Screen Shot 2015-03-16 at 3.28.39 AMAfter initial intake with HPRP, the licensee is referred to a “qualified evaluator” and “If the evaluation indicates a substance use and/or mental health disorder that represent a possible impairment” the HPRP makes referrals for treatment services to an “approved provider.Screen Shot 2015-03-16 at 3.29.35 AM

The “qualified evaluators” and “approved providers” are undoubtedly  the same out-of-state  facilities North Carolina state Auditor Beth Woods found her state program was referring to in her audit of the N.C. PHP under the undefinable justification they were “PHP-approved.”

As with North Carolina,  the Michigan PHP will be unable to provide what quality indicators and quantitative measurements are being used to “qualify” and “approve these facilities.    None exist as the common denominators in these “PHP-approved” and state mandated assessment and treatment centers are ideological and economic.  

The medical directors of almost if not all of them can be seen on this list of “like-minded docs.”  The conflicts-of-interest and intertwined relationships among this group is staggering.

The philosophy of Like-Minded Docs is the following:

“We believe that evidence from extensive, well-designed studies demonstrates the great benefits of Twelve-Step recovery modalities including Twelve Step Facilitation in promoting long-term recovery. Further, Twelve-Step modalities are compatible with other treatment strategies including medication-management. We believe that Addiction specialists need to facilitate a path for our patients toward the best possible state of wellness and recovery as they receive treatment for this chronic disease.  We believe a well-rounded educational and clinical preparation for physicians choosing to practice addiction medicine or addiction psychiatry requires a comprehensive exposure to the psychosocial and spiritual modalities of treatment as well as the neurobiological and psychopharmacological modalities.”

This connection needs to be made by both North Carolina and Michigan as the state is mandating treatment not only to assessment and treatment centers with economic conflicts of interest but with ideological ones as well.  Health care practitioners are being forced into evaluations exclusively at 12-step facilities and excluding non-12 step assessment and treatment centers.  This is a clear violation of the Establishment Clause of the 1st Amendment.

The complaint goes on to state the HPRP:

“has expanded its role to include making treatment decisions in place of the opinions of qualified providers. Licensees are subjected to intake evaluations by a pre-selected cadre of providers who profit from the enrollment of HPRP members. This process culminates in a large number of health professionals receiving a “Monitoring Agreement” which is essentially a nonnegotiable contract for treatment selected by HPRP. While HPRP’s contract with the State requires that treatment be selected by an approved provider and that it be tailored in scope and length to meet the individual licensee’s needs, licensees generally receive the same across-the-board treatment mandates regardless of their diagnosis or condition. Further, treatment providers are not permitted to recommend the specific treatment rendered and HPRP has a policy that only HPRP can set the terms of the treatment required in the contract. Failure to “voluntarily” submit to unnecessary and costly HPRP treatment results in automatic summary suspension..”

“Facing the threat of summary suspension in the event of non-compliance, licensed health professionals are induced into a contract as a punitive tool of BHCS and are often required to refrain from working without prior approval, refrain from taking prescription drugs prescribed by treating physicians, and sign broad waivers allowing HPRP to disclose their private health information to employers, the State of Michigan, and/or treating physicians.”

“Every licensee in the State of Michigan who has received a summary suspension, as a result of HPRP non-compliance, has had their private health data transmitted to the BHCS for use during administrative proceedings. In short, the mandatory requirements of HPRP, coupled with the threat of summary suspension, make involvement in HPRP an involuntary program circumventing the due process rights of licensees referred to the program. The involuntary nature of HPRP policies and procedures as outlined above and the unanimous application of suspension procedures upon HPRP case closure are clear violations of Procedural Due Process under the Fourteenth Amendment.”

This is exactly the same system of institutional injustice seen at Ridgeview under G. Douglas Talbott.  Multiple physician suicides were attributed to these same abuses–involuntary forced treatment under extortion of loss of licensure.  It is time this elephant in the room be addressed in terms of the marked increased in suicide we are seeing now.

 

http://www.chapmanlawgroup.com/hprp-class-action/

Health Professionals File Class Action Against HPRP

Jurisdiction: U.S. District Court for the Eastern District of Michigan

Subject: Plaintiff’s filed a class action lawsuit on behalf of Michigan health care professionals, alleging constitutional violations related to the forced medical treatment of health care professionals involved in the State’s substance abuse monitoring program (HPRP) and the callous and reckless termination of professional licenses without due process by HPRP and the Bureau of Healthcare Services.

Three Michigan health professionals filed a federal class action for due process violations arising out of execution of a State substance abuse monitoring program known as the Health Professionals Recovery Program. According to the class action lawsuit filed today in the Eastern District of Michigan, the State of Michigan and a private contractor (Ulliance, Inc. of Troy, Michigan) engaged in a conspiracy to violate the civil rights of Michigan health professionals by involuntarily subjecting them to excessive and unnecessary treatment for substance abuse and suspending their licenses if they do not comply.

HPRP, intended as a voluntary treatment program by the legislature, has become a highly punitive and involuntary tool designed to circumvent due process, the complaint states. However, according to the complaint, Carole Engle, the Former Director of the Bureau of Healthcare Services, implemented a policy that any person who does not voluntarily submit to this unnecessary treatment would be immediately suspended without a hearing and prevented from practicing as a health professional. Carole Engle recently resigned her position after Governor Snyder refused to renew her contract with the State of Michigan. It is unclear whether her recent resignation is related to the recently filed class action.

The controversial treatment program has generated a significant amount of criticism in recent years from Michigan health professionals who have called for a class action in an effort to stop HPRP’s abuse of their broad sweeping power. For years, HPRP subjected nurses to three years of intense addiction treatment sometimes on the basis of an anonymous tip.

“We turned to the courts for fairness because HPRP’s mandate of unnecessary treatment has ruined countless lives. My life has been ripped apart by HPRP despite the fact that two evaluators determined that I do not need treatment. I am only one of hundreds who have had to choose between suspension of my license and tens of thousands of dollars worth of treatment that was unnecessary – I just couldn’t afford it, and now I can no longer practice as a nurse” said Carol Lucas, a registered nurse and a Plaintiff in the class action.

Chapman Law Group, a Michigan health care law firm, filed the complaint on behalf of three named Plaintiffs, each of whom fell victim to HPRP’s demand that they submit to unnecessary treatment or have their license suspended. The class includes Michigan health professionals who are or were participants in the Health Professionals Recovery Program during the period from January 1, 2011 to present.

The complaint and amended complaint can be seen below:

Michigan Case 2-15-cv-10337

Michigan Amended Complaint 2-15-cv-10337