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Archive for the ‘Boards’ Category

The breadth and depth of ruthlessness and greed apparently knows no bounds with the Louisiana State Board of Dentistry.

And it’s time, past time, that Gov. John Bel Edwards stepped in and brought an end to the destructive force that the board has become.

LouisianaVoice has documented numerous instances of abuses by the board:

EXAMPLE ONE

EXAMPLE TWO

EXAMPLE THREE

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EXAMPLE FIVE

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EXAMPLE SEVEN

EXAMPLE EIGHT

EXAMPLE NINE

EXAMPLE TEN

EXAMPLE ELEVEN

EXAMPLE TWELVE

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EXAMPLE FIFTEEN

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And these are just a few of the stories we and others have done about the gestapo-like tactics of this board established to protect consumers but which has become nothing other than a means for raising funds to support the salaries of board executives, staff, attorneys and investigators, not to mention rent in luxurious office spaces.

Because it receives no funding from the state General Fund, the board, like the State Board of Medical Examiners, relies on back-breaking fines that are completely out of proportion to the offenses for which doctors and dentists are fined by a board that acts simultaneously as accuser, investigator, prosecutor and judge.

In short, there can be no semblance of due process with kangaroo courts like these.

There have been efforts in the legislature to rein in the runaway boards, but those efforts have met with little success.

In the case of Dr. Ken Starling of Slidell (see Examples 3 and 18), the arrogance of the board and the ineptness of the Office of Inspector General have to be particularly galling.

Starling did everything the board asked of him, including entering and completing a rehab program at a costly facility in Rayville. But that apparently was not enough, for when Starling petitioned the board, sitting in god-like judgment of him, for reconsideration of adverse sanctions assessed against him, he only met with more maddening bureaucracy compounded by the ineptitude of the Office of Inspector General, which appears to have less justification for existence than just about any other state agency.

The PROCEDURES for reconsideration of an adverse disciplinary decision by the board says nothing at all about referring a dentist’s petition to the Office of Inspector General. Yet, that’s precisely what the board did, punting its responsibilities to another equally-bumbling agency.

LouisianaVoice has tracked some of the performance claims of the OIG and found that its claims of recovery of millions of dollars in restitution from felonious state employees were misleading because they basically piggy-backed federal prosecutors who actually led all the leg work.

As tor the OIG itself, it has provided little evidence of being an effective investigative or enforcement agency. In other words, taxpayer dollars wasted on useless inertia.

At any rate, the dentistry board, relying of all things, on the results of an OIG “investigation,” rejected Starling’s petition. Inspector Clouseau would have been a better choice.

The board, in a classic case of the blind leading the blind, noted that the OIG “reported to the Board that it found no irregularities or improper conduct associated with the investigation in 2009-2010 or the Consent Decree of March 5, 2010.”

Of course not. The OIG could not find its posterior with both hands, so it was a safe call by the dentistry board to refer the matter to OIG. You might say it was a classic Catch-22 that would do Joseph Heller proud while sealing Starling’s fate.

The board didn’t even extend the courtesy of sending a letter to Starling notifying him of its decision, relying instead on an email:

From: Rachel Daniel
Date: May 21, 2019 at 2:25:58 PM CDT
To: Kenneth Starling

Cc: Arthur Hickham <ahickham@lsbd.org>

Subject: Request for Reconsideration of Adverse Sanctions

Dear Dr. Starling:

Your petition for reconsideration of adverse sanctions was addressed by the members of the Disciplinary Oversight Committee and by the full board on March 15, 2019 in accordance with LAC 46:XXXIII.116.  While the committee found that your petition should be presented to the full board, the board voted unanimously to refer your case and your concerns to the Office of the State Inspector General of Louisiana (OIG).

After the OIG’s investigation, the OIG reported to the Board that it found no irregularities or improper conduct associated with the investigation in 2009-2010 or the Consent Decree of March 5, 2010.  Therefore, your petition of adverse sanctions was addressed again by the members of the Disciplinary Oversight Committee on May 7, 2019 in accordance with LAC 46:XXXIII.116.

Please be advised that the committee found that your request for reconsideration of adverse sanctions on May 7, 2019 lacked substantial merit and was denied.  Attached please find board rule .116 which outlines the time delay before which you can seek further relief.

Should you have any questions regarding this correspondence, please do not hesitate to contact me.

Sincerely,

 

Arthur F. Hickham, Jr.

Executive Director

Louisiana State Board of Dentistry

P.O. Box 5256

Baton Rouge, Louisiana 70821-5256

225.219.7334  Phone

225.219.0707  Fax

www.lsbd.org

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Southern University has been hit with more than $14,000 in fines and fees as a result of an illegal executive session of the university’s system-wide grievance committee on March 18 involving four professors who were appealing the decision by Southern Executive Vice President/Vice Chancellor James Ammons to either fired, demote or reduce the pay of the four.

Nineteenth Judicial District Court Judge Richard “Chip” Moore awarded $5,000 to the four professors and to yours truly. In addition, he ordered Southern to pay $8,400 in attorney fees to Baton Rouge attorney J. Arthur Smith, III, and to pay $638 in court costs.

RULING ON SOUTHERN CLOSED MEETING

At the same time he ruled that any and all actions by the committee affecting the four professors from March 18 through the date of the ruling (May 13) were null and void, “said evidence being the unlawful fruit collected by the committee in contravention of the Open Meeting Law…”

The decision followed the May 6 trial in which the four professors—Elaine Lawnau, Christy Moland, Terrilynn Gillis and Marilyn Seibert—and Aswell said they were forced to exit an illegally-held closed-door meeting of the grievance committee on March 18.

In his ruling, Judge Moore said that prior to the committee’s convening in the committee room on the Southern campus, committee chairperson Marla Dickerson “met privately with all committee members to discuss whether the hearing should be open or closed to the public. Dickerson testified that the committee members unanimously and clandestinely agreed that the hearing be closed to the public (emphasis mine).

“Thereafter, Dickerson and the other committee members assembled in a boardroom and called the hearing to order with all plaintiffs being present. Dickerson then asked plaintiffs whether they desired the hearing be open or closed, and all plaintiffs moved that it be open to the public. Dickerson then posed the same question to Southern University, which advised through its counsel (Winston Decuir, Jr.) that the hearing be closed. Dickerson then authoritatively ordered the committee hearing be closed to the public, said action being taken without prior motion or vote from any committee member while the committee was in open session.”

The state’s open meeting law specifically says that (a) all votes to enter into executive session must be by a two-third majority vote and that the vote must be taken in open session and recorded in the minutes of the meeting, and (b) employee(s) filing the grievance or appeal have the final say as to whether the meeting is to be conducted in open or closed session.

The committee failed to meet either criteria.

Decuir, who appeared smug and self-assured at the outset of the trial, argued that because Southern’s handbook gives the committee the final say on executive sessions, the university was not required to comply with state law when in reality, the reverse order is true: state law trumps the school’s handbook, not the other way around.

But that did not stop Decuir from arguing that the committee “had no legal responsibility to comply with laws relative to public hearings,” Judge Moore noted.

Moreover, apparently disregarding the First Amendment, Decuir challenged my right to be a plaintiff in the matter, arguing that I had no standing even though I was there to cover the proceedings for LouisianaVoice. Under cross examination, he even asked me—as if the question had any relevance whatsoever—if I had ever covered a meeting at Southern before. Again, Mr. Decuir—I direct you to the First Amendment.

Judge Moore, who first was required to rule that Southern was a public body in order for the trial on the merits to proceed, noted that the recommendation to be made by the committee to Southern’s president/chancellor “was far too important to be made in a dark room, where no one other than committee members knew what facts and evidence it had considered…”

He said Dickerson’s own testimony “clearly established that prohibitory law was contravened when Dickerson improperly ordered the hearing go into executive session, closing the meeting to plaintiffs and the public.”

Moore also noted, “Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury, loss, or damage if the injunction does not issue and must show entitlement to the relief sought. However, a showing of irreparable injury is not necessary when the act sought to be enjoined is unlawful, or a deprivation of a constitutional right is involved.”

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A prudent individual who follows the news might well be asking what the hell’s going on out at LSU?

It’s certainly a fair question.

The disconcerting stories have been piling up at Louisiana’s flagship university with each new story causing more head-scratching than the last.

In 2015, SIGMA CHI fraternity was kicked off campus for three years following an investigation into drug use and hazing on October 17 at the chapter house. A fraternity member’s overdose death that same day was not connected to incidents at the frat house, investigators determined.

In September 2017, PHI DELTA THETA’s general headquarters announced that it had formally suspended and revoke the charter from its LSU chapter following the binge-drinking and hazing death of Maxwell Gruver despite the fact that the fraternity had an alcohol-free housing policy and a blanket anti-hazing policy in place.

Then apparently unable to see the writing on the wall, DELTA KAPPA EPSILON (DKE), better known as the Dekes made infamous by the movie Animal House, got its charter revoked by the national organization following the arrest of nine present and former DKE members following reports of hazing that involved urinating on pledges and forcing them to lie in ice water, on glass.

Without attempting to minimize the gravity of those incidents—students died, after all—binge drinking has always existed in frat houses as boys away from their mommies and daddies for the first time, go more than a little crazy on testosterone overload.

But what about the adults at the Ole War Skule? How do they explain their unrestrained behavior of late?

First there was the LSU basketball program that came under the dual microscopes of the NCAA and the FBI. Head coach WILL WADE was suspended after FBI wiretaps caught him allegedly discussing payments to a recruit with sports agent Christian Dawkins. The player, Javonte Smart is a standout freshman guard.

Actually, Wade was not suspended until he refused to meet with LSU administrators to discuss the investigation. Wade initially agreed to talk but canceled when he learned NCAA investigators would be in the meeting.

But the basketball probe took an ugly turn.

Before news of the basketball investigation became public knowledge, another scandal rocked Baton Rouge when it was learned that JOHN PAUL FUNES was arrested for embezzling more than $800,000 from the Our Lady of the Lake Foundation.

Funes made more than $283,000 per year as president of the foundation which is the fundraising arm of OLOL hospital that raises money for such projects as the new OLOL Children’s Hospital.

In addition to allegedly embezzling the money from the foundation, he reportedly also gave foundation funds to the parent of an LSU ATHLETE, supposedly as salary for a job.

The dust still hasn’t settled on the OLOL-LSU basketball drama even as new revelations keep popping up like some kind of Whack-a-Mole game of financial chicanery.

On March 19, a state audit revealed that the LSU SCHOOL of VETERINARY MEDICINE paid a faculty member more than $400,000 in salary and benefits over more than three years even though the “employee” failed to carry out his employment duties from August 2015 to September 2018.

Despite being told by LSU to appear for work for the Fall 2018 semester, and despite his failure to do so, he was still employed as of January 24.

“The faculty member knowingly received 38 months of LSU salary and benefits without performing commensurate work,” the audit said.

So, how in the name of fiduciary responsibility was this allowed to happen? Who was minding the store out at the School of Veterinary Medicine? Someone has to be held accountable for this.

Three days after that story made news, on March 22, it was learned that four LSU administrators earning six-figure incomes had RESIGNED after failing to comply with a state law that requires that they register their vehicles in Louisiana and obtain a Louisiana driver’s license.

The law was passed in 2013 at the urging of the late C.B. Forgotston in a bill sponsored by then State Rep. John Bel Edwards (D-Amite).

The four were identified as:

  • Andrea Ballinger, chief technology officer: $268,000 per year;
  • Matthew Helm, assistant vice-president in information technology services, $202,000;
  • Susan Flanagin, director in information technology services, $149,000, and
  • Thomas Glenn, director of information technology services, $14,000.

All four are from Illinois and three of the four worked part of their time for LSU from Illinois

In addition to their salaries, three of the four were provided stipends to help with moving expenses. Ballinger received $20,000; Helm $15,000, and Flanagin $5,000. So, just how were those moving expenses used by the three if they didn’t physically move here?

All four said had they known of the law requiring registering their vehicles and obtaining state driver’s licenses, they would not have taken the LSU jobs.

So, this was not explained to them when they were hired?

And persons making six-figure incomes are allowed to work for a state university while living three states away? Sweet.

Universities, by their nature, tend to be an autonomous part of the communities in which they are located, impenetrable to the outside world, but this is ridiculous.

Someone has to answer for these lapses and that someone begins and ends at the top of the food chain at LSU: President F. King Alexander on whose watch all the above events have occurred.

LouisianaVoice wrote extensively about ALEXANDER almost exactly six years ago when it became evident that he was in line to become the next LSU president.

King was appointed during the Jindal administration and Gov. Edwards indicated he wanted to keep King in place. Was that a wise decision in retrospect?

Former chairman of the Louisiana Board of Regents RICHARD LIPSEY is calling for the firing of both Alexander and Athletic Director Joe Alleva for what he calls a “lack of leadership.”

Alleva, you may remember, was athletic director at Duke before coming to LSU. While at Duke, rape charges were brought against the school LACROSSE team, charges that proved to be a hoax and which ultimately cost the local district attorney his law license over his eagerness to prosecute the players.

Alleva, meanwhile, didn’t even wait for charges to be filed. He cratered early and dismantled the lacrosse program before due process could be carried out.

Fast forward to LSU, 2015. Alleva badly botched the Les Miles situation, hovering on the verge of firing the likable coach before Miles saved his job with a 19-7 win over TEXAS A&M. But the die had been cast and everyone knew it was a matter of time before Alleva, who was born with a serious birth defect (no spine) would cave again to the big money donors who wanted Miles’s head.

Four games into the 2016 season, Alleva PULLED THE PLUG and fired Miles following a heartbreaking 18-13 loss at Auburn, proving once and for all he possessed the subtlety and tact of an air raid siren at a wake.

I don’t know if Lipsey’s recommendation is the needed remedy at LSU. The Board of Supervisors, after all, was appointed to oversee operations of the LSU system and not to be mere puppets of the governor.

Oh, wait, my mistake. Turns out they were.

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When comparing the exorbitant fines meted out by the State Board of Dentistry and the State Board of Medical Examiners with the manner in which the Louisiana Supreme Court disciplines wayward attorneys, one comes away wondering if there are two sets of standards of justice in Louisiana—one for attorneys and another for everyone else.

For that matter, it sometimes seems as though there are two standards for attorneys—or at least a good argument for glaring inconsistencies.

Take, for example, the cases of Arthur Gilmore, Jr. of Monroe and E. Eric Guirard of Baton Rouge.

Gilmore, a former Monroe city council member, was convicted of violations of the federal Racketeering and Corrupt Organizations (RICO) Act in 2013 and subsequently served a 24-month prison sentence in South Dakota. A co-defendant, fellow council member Robert “Red” Stevens pleaded guilty in May 2013 to accepting cash bribe payments and was sentenced to 20 months in prison.

The sentence was below sentencing guidelines. The presiding judge wrote that the government’s main witness “engaged in an ongoing program of planned enticement to provoke (Gilmore) into agreeing to bribes in exchange for perceived favors from his position with the Monroe City Council. Because of that, the guidelines, in my opinion, may overstate the relative seriousness of (Gilmore’s) actions and the application of an equitable sentence.”

In other words, because he was tempted to take the bribe, the gravity of the acceptance of same and the violation of his oath of office and the betrayal of the trust bestowed upon him by voters is somehow mitigated.

The two were accused of accepting bribe payments from an FBI informant in exchange for their assistance with matters pending before the city council in 2008 and 2009.

The Louisiana Supreme Court finally got around to DISBARRING Gilmore in 2016—three years after his conviction. The disbarment was made retroactive to 2013.

Though Gilmore expressed remorse for his actions, the Louisiana Attorney Disciplinary Board found that permanent disbarment was the appropriate action.

But “permanent” is a somewhat relative term, it seems.

Last month Gilmore petitioned the Supreme Court for readmission to the practice of law and “permanent” became temporary when the court’s disciplinary board recommended that he be readmitted to practice, subject to a three-year probationary period.

The Office of Disciplinary Council (ODC) objected to his readmission and three board members dissented, recommended that readmission be denied.

The objection and dissensions notwithstanding, the hearing committee approved Gilmore’s immediate READMISSION to practice law.

Justice Scott J. Crichton wrote in his dissent that Gilmore, “as an official elected government official, committed a serious felony crime involving racketeering and extracting bribes. In my view, he has not proven in his application for readmission that he has the requisite honesty and integrity to practice law, and I would deny readmission.”

GUIRARD received the same punishment in 2009 for what would appear to most to be a far less serious infraction—paying bonuses to non-lawyer case managers employed by his firm to help settle cases, a practice he discontinued five years before his disbarment.

The Supreme Court ruled that by paying two case workers to settle nearly 500 cases, Guirard “harmed their clients” by depriving them of individualized and professional case analysis while somehow overlooking larger firms who seemed to operate on an assembly-line basis—trying to sign up as many clients as possible as quickly as possible.

“We recognize a dishonest or selfish motive, a pattern of misconduct…in the practice of law,” the court wrote in its unanimous opinion.

Six years after he was disbarred, in March 2015, a year before Gilmore’s disbarment, Guirard was READMITTED to the bar.

Identical punishment for a far less egregious transgression.

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Trying to decipher which was the first to employ Gestapo-like extortion as a means of controlling licensees is like solving the chicken-or-the-egg riddle, but there’s no question that the methods employed by the Louisiana Board of Dentistry and the Louisiana State Medical Licensing Board are eerily similar.

Both employ highly questionable investigative methods, both impose stiff fines followed by even more outrageous fines if the licensee displays any will to resist what may even be bogus charges, and both make generous use of the most effective punishment: revocation of licenses—taking away the victim’s very means of earning a livelihood.

And both also occasionally force recalcitrant dentists and physicians to attend costly rehab clinics either in addition to or in lieu of license revocations. And those rehab clinics can cost as much as $30,000 a month.

Sometimes, a professional is sent to a facility that has its own abuse problems. Take the case of Slidell dentist KENNETH STARLING, who, in addition to having to pay an $8,000 fine, was sent by the dental board to a place called Palmetto Addition Recovery Center in Rayville in Richland Parish in 2010.

But PALMETTO, it turned out, was involved a 2009 lawsuit after one of its staff members, Dr. Douglas Wayne Cook, became sexually involved with one of the center’s patients.

And even while at Palmetto, the dental board continued targeting him. Could that be because he practiced in the same town as influential board member Dr. Edward Donaldson?

And while the practices of the dental board have been publicized often by LouisianaVoice, the state medical board essentially plays by the same rules. And, just as with the dental board, the name of Palmetto Addiction Recovery Centers surfaces on a regular basis in report after report, along with Pine Grove Recovery Centers in Hattiesburg, Mississippi, and Physicians’ Health Foundation of Louisiana.

I have chosen to delete the names and locations of the following examples, but the cases serve as examples of an uneven playing field, often dependent upon on the physician in question:

  • Following his arrest on charges of distribution and possession of controlled and dangerous substances in 2005, Dr. ________submitted to substance abuse evaluation at Palmetto. “Apparently, the physician had submitted to chemical dependency treatment on two prior occasions. Upon his discharge from Palmetto, he underwent residential treatment at Pine Grove. His license was reinstated in 2009 but in 2013, the board received information indicating that the physician “had returned to the use of controlled or other mood-altering substances.” In 2018, after being placed on indefinite probation in 2014, his license was “reinstated without restriction.”
  • ___________entered a plea of guilty to one count of Medicaid fraud in 2002 and subsequently underwent in-patient chemical dependency evaluation for cocaine abuse. Following completion of his criminal penalty, he was referred to Physician Health Foundation’s Physician Health Program (PHP). Following his reinstatement in 2008, he was disciplined again in 2018, this time placed on probation for unspecified violations.
  • _________________ was diagnosed in 1999 with cocaine and alcohol addiction and in 2000 was referred to Talbott Recovery Campus in Atlanta, Georgia through Physicians’ Health Foundation and later to Fontainebleau Treatment Center in Mandeville. His license was reinstated in 2006 but in 2007, he again came under scrutiny for drug abuse and was again referred to a PHP monitoring program and he was placed on probation by the board for a 10-year period in 2008. He was reinstated “without restriction” in 2018.
  • ________________ entered a plea of guilty to one count of health care fraud in 2009. In addition to criminal penalties, the board suspended his license for 90 days, placed him on probation for five years, and fined him $3,000. Following his reinstatement in December 2009, it was subsequently learned in 2011 that he had been issuing prescriptions of narcotics, including OxyContin, from his home and vehicle since May 2009 under the auspices of a practice site not approved by the board. The board again suspended his license, this time for six months and he was placed on probation for 10 years.
  • _________________ voluntarily entered into a two-week program at DePaul Hospital in New Orleans for cocaine dependency in 1995 and 1996 before transferring to Talbott Marsh in Atlanta. The board in 1998 ordered him into additional treatment in PHP at Palmetto and placed him on probation for five years. In 2003, he was again placed on five-year probation for failure to comply with requirements set forth in the 1998 order. His license was reinstated “without restriction” in 2018.

But when a Lafayette NEUROSURGEON becomes involved in suspected arson and subsequently enters a plea of guilty to one count of felony obstruction of justice, the Louisiana State Board of Medical Examiners is strangely silent.

Dr. Nancy Rogers was arrested in 2012 in connection with the fire at Levy-East Bed & Breakfast in Natchitoches, a blaze that caused $500,000 in damage to the unoccupied building. No motive has been given for the fire, but investigators determined it to have been intentionally set.

But in the case of Dr. ARNOLD FELDMAN of Baton Rouge, the board came down especially hard.

In a terse December 20, 2018, LETTER TO FELDMAN, board Executive Director Vincent Culotta, Jr., wrote, “Per the decision and order of the Louisiana State Board of Medical Examiners dated April 13, 2015, the amount due is as follows:

  • Cost of proceeding—$456,980.60
  • Administrative fine—$5,000
  • Total: $461,980.60.

This is not intended as a treatsie on Feldman’s guilt or innocence, but it’s rather difficult to fathom what “proceedings” could cost nearly $457,000 but that’s the way the dental and medical examiners boards operate. While members of both boards are appointed by the governor, they are apparently accountable to no one and able to set fines and costs at whatever amounts they wish.

Feldman served briefly as a member of the Physicians’ Health Foundation until he started asking questions that made certain people uncomfortable. Four months later, he found himself in the board’s crosshairs. But during his short tenure, he learned that the medical board funnels about a million dollars a year into the foundation. Apparently, there is no accounting for those funds.

Moreover, he said, the so-called “independent judges” hearing cases for possible board disciplinary action are paid by the board investigator’s office, which creates something of a stacked deck going into the process—not to mention an obvious conflict of interest.

Physicians aren’t the only ones to encounter an uncooperative medical board. The Legislative Auditor was forced to SUE the board in order to obtain board records so that it could perform its statutorily-mandated job of auditing the board’s financial records.

Senate Bill 286, the so-called physicians’ Bill of Rights, passed the SENATE by a unanimous 36-0 vote last year but never made it to the floor of the House after being involuntarily deferred in committee.

But a rare unanimous DECISION by the U.S. Supreme Court exactly two months later, on February 20, could impact the way these boards mete out exorbitant fines.

Even though the high court’s ruling on Timbs v. Indiana is considered a blow aimed at criminal justice reform, particularly in the so-called policing for profit through asset forfeiture, its effects could spill over into the way civil fines are handed down by regulatory bodies.

The ruling, written by Justice Ruth Bader Ginsburg, falls back on the Eighth Amendment that guarantees that no “excessive fines” may be imposed, a concept that dates back to the Magna Carta and later embraced by the framers of the U.S. Constitution.

It will be interesting to see if any dentist or physician victimized by either of these boards files legal action based on the Supreme Court’s most recent ruling.

If someone does, it could be a game changer.

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