Editor’s note: The following (with added comment) is a guest column provided to LouisianaVoice by the Healthcare Alliance for Regulatory Board Reform (HARBR):

By Christian Wolff

Louisiana Senate Bill 286, dubbed the Physician’s Bill of Rights, fell into a “coma” before the Louisiana Legislature on last Wednesday but not before an outburst over the testimony of the bill’s author.

Sen John Milkovich (D-Shreveport) was in the middle of explaining the obvious conflict of interest on the Louisiana State Board of Medical Examiners when he was interrupted by New Orleans attorney Jack Stolier who twice shouted that Milkovich’s testimony was a “bald faced lie.” (Milkovich’s testimony and Stolier’s off-camera interruption can be heard beginning at the 7:15 MARK of this video of the House Health and Welfare Committee.)

Milkovich had just referenced an “affair” between Dr. Cecilia Mouton, then an investigator for the board of medical examiners, and Stolier, who represented physicians before the board in disciplinary matters.

But hey, the brief flareup was by far the most interesting—and probably the most intelligent—moment of this session sadly marked by legislative ineptitude, indecision, and concerted efforts to bow to the will of special interests st the expense of constituents and Louisiana (See the disgraceful Senate passage of the Payday Loan bill. How anyone can hold out one scintilla of hope for this bunch is beyond comprehension).

After Stolier was escorted from the committee room by Capitol security personnel, Milkovich read from a March 18, 2016, LouisianaVoice post which alluded to the relationship between the two. He also cited a letter from a board director which acknowledged a “personal relationship” between the two. Mouton, now Director of Operations for the board, and Stolier have since married but Milkovich called the romantic link between Mouton, who was prosecuting doctors, and Stolier, who was defending them, a blatant conflict of interest.

This, folks, is typical of the manner in which both the Board of Medical Examiners and the Louisiana State Board of Dentistry disregard due process and run roughshod over members of the medical profession who are charged and deemed guilty without even a nod at procedure. Guilty until proven innocent turns legal procedure on its head and is the very reason why some sort of checks and balances are desperately need to bring these rogue board under control.

But instead, the board, without objection, agreed that the bill be involuntarily deferred, meaning that for all practical purposes, it is dead for this session. (This, by the way, is the same Board of Medical Examiners that has defied a court order and continues to refuse to allow the legislative auditor to see its records so the auditor can do his job.)

Typically, the House does not entertain motions to override/hear bills that were involuntarily deferred in a committee.

This is the same legislature that is on the verge of approving (the Senate already has, by a 20-17 vote) an increase to 167 percent in interest rates payday loan predators can charge, along with doubling loan origination fees. Looks like the American Legislative Exchange Council (ALEC) has been busy this session—as it has in past years.

Advocates of SB 286 praised it on May 2 as an excellent piece of legislation. It was referred to it as “landmark” bill with implications for the due process reforms of healthcare licensing boards in every state in the nation.

Legislators’ indifference—not unlike their indifference to solving the state’s fiscal ills—could open the state up to litigation, leaving it to Attorney General Jeff Landry to try and defend the state, an interesting proposition in itself. Such potential litigation already has a precedent: a recent U.S. Supreme Court decision, North Carolina Board of Dental Examiners v Federal Trade Commission. In that decision, SCOTUS laid out conditions by which licensing and regulatory boards could and could not act as agents of their respective states.

In order to be considered a “state agency,” boards now need to show that they have a voting minority of “market place participants” in the profession being regulated. The other means by which a state regulatory or licensing board may come into compliance with the SCOTUS decision, and now, the Federal Trade Commission (FTC) mandate, is to have demonstrable and meaningful state oversight by an entity or entities which are not marketplace participants in the profession regulated by the board over which they are providing oversight.

The concern of SCOTUS and the FTC is that without meeting at least one of these two conditions, licensing and regulatory boards might act in their own interests rather than in the interest of the public. Moreover, SCOTUS and FTC, are concerned that beyond acting in the interest of their own professions over the interest of the public, boards may act in the interest of boards themselves over the fair and equal interest of given licensees or classes of licensees. This might be called “market capture via regulatory capture” and would be to the detriment of patients, the public, and licensees alike.

States whose regulatory boards do not comply with the conditions set forth in North Carolina Dental Board leave every member of every board including administrative staff and legal counsel legally exposed in their professional capacities and as individuals. Suits might be based in the violation of anti-trust laws, or on injury against persons (such as licensees) who were harmed without the benefit of due process of law.

Healthcare licensees in every state across the nation are being awakened to the injustices which have befallen physicians, and increasingly, other healthcare providers, since the passing of the short-sighted Healthcare Quality Improvement Act in 1986.

Louisiana is not alone by any stretch. It was foolish and immature for the Louisiana House Health and Welfare Committee to put SB 286 to rest in the way it did. When the Physicians’ Bill of Rights awakens from its “Involuntary Deferment” it may well be in a different state already positioned to make the proper move. The first state will set the landmark precedent and if the precedent does not affect national policy, it will be followed by every state in the nation.