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Archive for the ‘Lawsuits’ Category

delaHoussaye’s civil settlement notwithstanding, anticipated ruling in his criminal prosecution could restrict OIG powers

Posted in Courts, Crime, Ethics, Finances, Fraud, Judges, Lawsuits, Politicians on April 27, 2015| 5 Comments »

By Robert Burns (Special to LouisianaVoice)

Two months ago, Louisiana Voice reported on Livingston Parish DA Scott Perrilloux’s determination to prosecute Corey delaHoussaye.  Perrilloux, working with the State Inspector General’s Office (IG), has charged delaHoussaye, an FBI informant responsible for FEMA denying $59 million to contractors for Livingston Parish’s hurricane Gustav cleanup due to rampant fraud, with falsifying public records.  Specifically, Perrilloux and the IG allege delaHoussaye submitted paperwork for some time periods for which he claimed to be working but which the IG asserts he was at times golfing, visiting his doctor, working out, and tending to other personal matters.

Perrilloux failed to procure an indictment of delaHoussaye in December of 2013, but he nevertheless proceeded forward with a bill of information.  Meanwhile, delaHoussaye filed federal and state civil suits against the parish as a result of incoming Parish President Layton Ricks stopping payment on a $379,000 check to delaHoussaye for his final invoice.

The civil matter ended Friday when delaHoussaye agreed to accept $325,000 as payment for his final invoice and to dismiss both his federal and state civil actions against the parish.

For now, the state criminal trial continues even though Judge Brenda Ricks ruled on February 23, 2015 that insufficient evidence exists to proceed with a trial.  Mere minutes after Ricks’ ruling, Perrilloux angrily stated to reporters that he would appeal Ricks’ ruling, and he added, “Just because they wear a black robe doesn’t mean they know everything.”  True to his word, Perrilloux recently filed an appeal with the First Circuit Court of Appeal seeking to overturn Ricks’ ruling and proceed with the criminal trial.

On Monday, April 20, 2015, delaHoussaye’s attorney, John McLindon, argued before Judge Ricks a motion to suppress and motion to quash the evidence gathered by the IG on multiple fronts.  Judge Ricks’ ruling, expected sometime this week, may go a long way on clarifying just what authority and powers the IG has.

First, McLindon asserts that the IG is entitled to access the records only of a “covered agency.”  Thus, IG access is limited to only executive branches of state government, of which Livingston Parish, with whom delaHoussaye executed his contract, clearly is not.  In an obvious admission that Livingston Parish is not a covered agency, Greg Murphy, Assistant District Attorney, placed Ben Plaia, an attorney for the Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP), on the witness stand.  Murphy utilized Plaia’s testimony to buttress Murphy’s argument that, because GOHSEP controls access to federal emergency funding and because those funds flow through it to the parish, delaHoussaye’s records were fair game by virtue of GOHSEP’s standing as a covered agency.  Essentially, Murphy argued that, by virtue of funds flowing through GOHSEP, its own presumed covered agency status is imputed unto Livingston Parish.

McLindon attacked that assertion during cross examination by asking Plaia a series of questions.  When asked if GOHSEP, delaHoussaye, or C-Del (delaHoussaye’s company) were covered agencies, Plaia responded, “I don’t know.”  Obviously, if GOHSEP isn’t a covered agency, nothing can be imputed, and Plaia would not testify that GOSHEP is a covered agency.    When asked if delaHoussaye or C-Del were contractors of a covered agency, Plaia again responded, “I don’t know.”  Similarly, when asked if delaHoussaye or C-Del were subcontractors, grantees, or sub-grantees of a covered agency, Plaia again responded, “I don’t know.”  When asked if GOHSEP had any contractors or subcontractors, Plaia indicated that it did not.  When asked if it would be proper for GOHSEP to pay delaHoussaye or C-Del directly if invoices seeking payment were submitted directly to GOHSEP, Plaia responded, “No.  In fact, I believe it would be improper for us to do so.”

Based on Plaia’s testimony, not only was there no foundation to establish that GOHSEP could impute any covered status unto Livingston Parish, but there was no foundation for establishing that GOHSEP is even a covered agency with anything to impute.  Nevertheless, taking no chances, McLindon continued to attack the IG’s powers and authority even under the assumption that somehow covered status were deemed to exist and be imputable to Livingston Parish.

In doing so, McLindon is not the first attorney to fire a shot across the bow at the IG’s investigative powers and techniques.  In December of 2013, during the trial of Murphy Painter, former Commissioner of the Alcohol and Tobacco Commission (ATC), both Mike Fawer and Al Robert, Jr., Painter’s defense attorneys, sharply criticized the IG in terms of overreach regarding search warrants and sloppy investigative techniques.  Robert asserted to Federal Judge James Brady that the IG’s execution of the search warrant entailing Painter was both sloppy and that the agency acted well beyond the authority the judge granted.  In perhaps the most stunning quote of the entire trial, Robert, outside the presence of the jury, stated to Judge Brady, “Your Honor, this is not the FBI!  This is the OIG!  These people do not know what they’re doing!”

Similarly, when Fawer had IG investigator Shane Evans on the witness stand, he asked him to confirm his notes documenting that ATC officer Brant Thompson indicated Painter was “out of control, manic-depressive, and selectively enforcing alcohol statutes.” Evans confirmed that Thompson made those statements to him.  Fawer then asked Evans what investigative procedures he used to substantiate Thompson’s allegations against Painter.  Evans stated that he’d performed no investigative procedures at all and instead that he “merely wrote down what Thompson said.”  Fawer then inquired, “And based on your notations, my client (Painter) was summoned to the Governor’s Office later that evening, and he was fired by the Governor, wasn’t he?”  Evans responded that it was his understanding that Painter had resigned, to which Fawer responded, “Resigned, fired, whatever the case.  The bottom line is that very evening my client was out of a job all based on a few notes you wrote down with no attempt whatsoever to substantiate what you wrote, correct?”  Evans, who has left the IG and now serves as an investigator for the EBRP Coroner’s Office, didn’t challenge Fawer’s assertion.

McLindon takes Fawer and Robert’s assertions a step further and indicates his firm belief that the IG has no search warrant authority at all.  He argues that the Louisiana Legislature specifically granted the IG subpoena power but was silent on search warrant authority.  He said that fact, combined with the fact that, for criminal matters, “statutes are to be given a narrow interpretation and any ambiguity resolved in favor of the accused,” (the Doctrine of Lenity) means that the IG has no search warrant authority.  McLindon said that, prior to this case, nobody has ever challenged the IG on its search warrant authority, but he is formally doing so in this case and seeks for Ricks to make a formal ruling on whether they have such authority.  Murphy countered that Ricks must believe the IG has the authority to execute search warrants since she signed one dated June 21, 2011.  He then provided a copy to Judge Ricks, to which she responded, “You went way back to find that one, didn’t you?”

Next, even if covered status is somehow deemed to exist for Livingston Parish and search warrant authority is deemed by the court to be vested unto the IG, McLindon next argued that the IG failed to conform to the statutory requirement regarding an added step for subpoenas sought by the IG.  Specifically, McLindon argued the statute says that the judge shall issue a written decision within 72 hours of the application for the subpoena.  McLindon indicated that the IG and prosecutor have taken the position that the Motion for the Search Warrant is the decision, but McLindon counters that the motion is merely the application.  Furthermore, he stressed heavily that the Legislature could have granted unfettered subpoena power to the IG in the same manner as that which exists for the Attorney General, but it intentionally meant to provide an added layer of review in the case of the IG.  McLindon argued that the IG has been wrong to merely ignore that added layer as it has historically done.  Again, McLindon argued nobody has challenged the IG on this requirement, but he’s doing so in this case.

McLindon concluded his arguments by indicating that failure to suppress the evidence obtained by the IG for the reasons he argues “gives agencies carte blanche to engage in fishing expeditions into the private, sensitive information of citizens.”

In yet another added challenge to IG authority on obtaining its evidence, McLindon cited a case, State v. Skinner, in which the Louisiana Supreme Court made clear the need for a warrant, and not a mere subpoena, to obtain an individual’s medical records.  McLindon thus seeks for delaHoussaye’s medical records indicating he was visiting a physician during a timeframe that the IG alleges he reported working to also be suppressed.  He seeks such suppression based upon the IG obtaining the records via subpoena rather than a warrant.

Readers may read McLindon’s full post-trial memo outlining his arguments.

Louisiana Voice has interviewed several attorneys about the wisdom of the Louisiana Legislature granting the IG law enforcement authority even with the provision of no arrest powers, silence on search warrant authority, and an added hurdle for subpoenas which McLindon asserts has historically been simply ignored by the IG.  The consensus among the attorneys with whom Louisiana Voice has interviewed on the subject is that the Legislature made a mistake and that the IG is often abusing its power and, in at least some instances, acting in a reckless manner.  Perhaps Judge Ricks’ ruling later this week will provide guidance as to whether she may be inclined to agree and, more specifically, to concur with arguments McLindon has advanced in this case.

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Shades of Greenstein: OGB administrator once employed by BCBS heads evaluation committee for new contract proposals

Posted in Contract, Contracts, DHH, DOA, Ethics, Health Care, Lawsuits, OGB, Office of Group Benefits, Public Records, RFP, Request for Proposals on April 24, 2015| 5 Comments »

One might think the Jindal administration and the Office of Group Benefits (OGB) might have learned something from the Bruce Greenstein fiasco over at the Department of Health and Hospitals (DHH).

Greenstein, you will remember, was the DHH secretary when that $280 million contract was awarded by his agency to his former employer, CNSI.

That scenario could be repeated at OGB.

Even though Greenstein insisted he had established a “firewall” between himself and CNSI, it was subsequently revealed that Greenstein had hundreds of email and text message exchanges with his old bosses during the contract selection process.

That eventually led to Greenstein’s forced resignation and criminal indictment and a civil suit by CNSI the entire messy episodes are slowly making their way through the Baton Rouge District Court system.

Which brings us to OGB and its $35 million-a-year contract with Blue Cross/Blue Shield of Louisiana (BCBS) to administer OGB’s Preferred Provider Organization—a task that apparently proved somewhat daunting to BCBS during the first year of its contract, costing the contractor more than $3.1 million in performance penalties.

One of five contracts with the state totaling $1.2 billion, that three-year contract will end on Jan. 1, and OGB is currently accepting proposals for a new three-year contract.

OGB issued its request for proposals (RFP) on March 13, giving an April 20 deadline for proposals but that deadline was extended to April 30 in an addendum issued on Wednesday (April 22). OGB RFP

LouisianaVoice, however, has learned that OGB Administrator Elise Cazes has been put in charge of the evaluation committee which will make recommendations on awarding a winner of the new contract.

The problem? Cazes was appointed Group Benefits Administrator on June 23, 2014.

Cazes was previously employed by BCBS of Louisiana, raising the possibility of a conflict of interests. https://louisianavoice.com/2014/07/26/ogb-laying-of-24-more-blow-softened-when-ceo-assures-affected-employees-losing-their-jobs-not-like-losing-a-child/

She earns $106,000 per year in her current position.

Not only does she head up the evaluation committee, but she also was given the responsibility of naming other members of the committee. To date, the name of only one other evaluation committee member, OGB Interim Deputy Director Bill Guerra, has been revealed.

At the same time, LouisianaVoice has learned that BCBS in 2013 was fined more than $3.1 million for performance deficiencies in connection with its contract with OGB. BLUE CROSS PENALTIES

BCBS was paid slightly more than $32.2 million to administer the PPO plan for calendar year 2013, the first year of its current contract.

Under terms of its contract with OGB, BCBS could be fined up to $9.7 million for failure to meet a variety of standards. Those include:

  • General Standards (10 percent of total medical administrative fees): $3.52 million;
  • Data Submission Standards: $10,000 per day, or a maximum of $20,000;
  • Mental Health & Substance Abuse (MH&SA) Standards (17.5 percent of total medical administrative fees): $6.2 million.

The actual penalties imposed for 2013, according to OGB’s own report, and the breakdown included:

  • Average speed to answer phones (39 seconds against an industry standard of less than three seconds): $352,325;
  • Claims Accuracy: $352,325
  • Membership Identification Cards Timeliness: $352,325;
  • Data Submission Timeliness: $20,000 (the maximum amount allowed);
  • MH&SA Appeals: $528,487;
  • MH&SA Ambulatory Follow-Up: $528,487;
  • MH&SA Medical Integration: $528,487;
  • MH&SA Member Satisfaction Survey Score: $528,487

TOTAL: $3.19 million.

In explaining the deficiency report, OGB noted that the contract between BCBS and OGB “contains 26 performance goals (called service level agreements, or SLAs) related to customer service and claims processing. During 2013 Blue Cross experienced challenges in meeting a handful of these goals.”

The report indicated that “all issues” had been resolved and that OGB and BCBS were “fully prepared for excellent performance during the 2014 calendar year.”

But LouisianaVoice recently received the following email from a retiree which would seem to indicate otherwise:

“Here’s a laugh; Look at the insurance health cards my wife and I received thus far:

  • Received 3/6/15:  deductible—$300
  • Received 03/09/15: insured deductible—$600
  • Received (date unknown): insured deductible—$600
  • Received 03/20/15: insured deductible—$1800
  • Received 03/20/15: spouse deductible—$600
  • Received 03/27/15: spouse deductible—$600
  • Received 03/27/15: insured deductible—$1800
  • Received 04/04/15: insured deductible—$600. 

“Do I get to pick our deductible from these cards?  You can tell that BCBSLA and OGB are on top of this matter, right? I plan to make a personal visit to the OGB office probably next week and show them this trash and find out what our deductible(s) really are. Do you think they know? I will ask while I am (at the OGB office) for the real executive director at OGB (to) please stand up.

“Our online monthly premium is a different figure from the letter received in the mail today from OGB. I am ready for someone to figure out what’s going on, and do something logically and correctly.  Health insurance is a serious matter for people and they are playing with us. Everything needs to be corrected and cleaned up for all state employees (retirees and actives).

“OGB use to be correct on these technical matters and they had in the past straightened out BCBSLA for me several times on what was to be paid, etc. Now OGB has gone crazy too! I guess it’s from all the new executives at the top.” 

 

 

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Lawsuit seeking to block OGB benefits, premium changes also names Governor, who may be served in Iowa or N.H.

Posted in Contract, Contracts, DOA, Finances, Governor's Office, Health Care, Lawsuits, Legislature, Legislators, OGB, Office of Group Benefits, Privatization on April 22, 2015| 19 Comments »

The absentee Jindal administration, already under fire for its fiscal train wreck that has legislators scrambling in attempts to cover a projected $1.6 billion budgetary shortfall, had a grenade dropped into its lap on Wednesday in the form of a LAWSUIT against the administration and the Office of Group Benefits (OGB) over the method in which OGB attempted to implement adverse changes in benefits and premiums for 230,000 state employees, retirees and dependents.

Baton Rouge attorney J. Arthur Smith filed the petition for declaratory and injunctive relief in Baton Rouge District Court on behalf of six plaintiffs who are either current state employees or state retirees.

At issue is the way that OGB attempted to increase premiums and reduce benefits for members of OGB last August without complying with the state’s Administrative Procedures Act (APA) which requires promulgation (a formal declaration of intent and public hearings) of any rule changes.

Listed as plaintiffs are Marilee Cash and Aileen Hendricks of East Baton Rouge Parish, Nancy Dickie and Debra Thornton of Lafourche Parish, Rebecca McCarter of Ascension Parish and Dayne Sherman of Tangipahoa Parish. Named as defendants were the State of Louisiana, the Office of the Governor, the Division of Administration (DOA), and OGB.

They claim to be members of an organization called Louisiana Voices of Employees and Retirees for Insurance Truth and Equity, (LA VERITE). They say they chose the name because La verite is French for Truth.

The petition tracks the record of the Jindal administration and chronicles the manner in which the plaintiffs claim that the administration, abetted by the legislature, frittered away a surplus of nearly $2 million at the time Jindal took office, repeatedly used one-time revenue to cover recurring expenses, repealed the popular Stelly tax plan, passed numerous business tax breaks totaling some $367 million, approved $20 million in private school tuition and home schooling tax credits and scrapped the sales tax that businesses previously paid on utility bills.

The rollback of the Stelly plan took place despite warnings from the Institute on Taxation and Economic Policy (ITEP) that the move would cost the state more than $1.8 billion in lost revenue over a three-year period from fiscal year 2010 through fiscal year 2012, the petition says.

The lawsuit says that the repeal of the Stelly plan provided a “substantial tax savings for upper income Louisiana” and accounted for about 75 percent of the state’s budget shortfall during those three years. “This does not take into account the billions of dollars the State of Louisiana hands out in business tax exemptions and incentives ever year that have gone unexamined by lawmakers to determine if they serve legitimate public objectives or are simply wasteful luxuries that the state can no longer afford,” it says.

Citing further examples of what it describes as fiscal mismanagement, the petition notes that from July 1, 2009 through June 30, 2010, the administration spent $2.4 billion in private consulting contracts. The following year, it said, that amount increased to $4 billion. The suit cited the Office of Contractual Review’s annual reports for 2009-2010 and 2010-2011 as its source.

Plaintiffs, in their petition, say that the administration announced in January of 2011 its intention to explore the privatization of OGB’s Preferred Provider Organization (PPO) even though a Legislative Auditor’s report predicted that premiums would increase because of marketing costs for a private provider, the necessity of a private provider’s turning a profit, the requirement that private health insurance companies pay premium taxes and the requirement that private companies must purchase reinsurance.

Despite that, the lawsuit says, then-Commissioner of Administration Paul Rainwater promised that in the event of privatization, benefits would remain the same and premiums would not be increased.

Blue Cross/Blue Shield of Louisiana won the contract to administer the PPO and the new plan went into effect on Jan. 1, 2013. That same year, the administration actually reduced rates by 7.11 percent and the next year another reduction of 1.77 percent went into effect.

“While this saved money for the employees,” the plaintiffs said, “it reduced the state’s required premium (matching) payments by about twice as much, thereby reducing the state’s obligation to pay into the system even though medical expenses were increasing by about 6 percent. The rate reductions, while saving the state money it could then apply to the budgetary shortfall, it meant that OGB could no longer cover expenses from current revenue and had to dip into its reserve fund, which was about $500 million when BCBS took over operations.

OGB has been spending millions per month more than it has been taking in in premiums and the Legislative Fiscal Office has said there is a risk that the reserve fund balance could be zero by the end of the current fiscal year (June 30).

“Gov. Jindal adamantly opposed every attempt on the part of legislators to deal with the financial crisis through tax increases,” the petition says, and he “capitalized on the financial crisis of the state to advance an ideological agenda that called into question the rationale for government to perform basic services on a wide range of issues.”

In listing three causes of action, Smith said the state and OGB violated the state’s APA by attempting to make “substantial unilateral modifications to both benefits and costs under the OGB health plan.”

Some of the changes included:

  • Significantly increasing out-of-pocket maximums for all health plan options;
  • Increasing deductibles for all health plan options;
  • Increased co-pays 100 percent for plans with co-pays;
  • Increasing the out-of-pocket maximums for prescription drug benefits by $300 (from $1,200 to $1,500, a 20 percent increase);
  • Eliminating out-of-network benefits for some plan options;
  • Requiring prior authorizations for certain medical procedures;
  • Removing all vision coverage from health plan options.

The plaintiffs point out that on Sept. 30, 2014, only seven days after an attorney general’s opinion said OGB had violated the APA with its unilateral modifications of benefits, OGB issued a press release “stating its intention to publish an emergency rule reinstating the legally insufficient Aug. 1 changes.”

OGB’s emergency rule, the petition says, “was an apparent effort to retroactively ‘cure’ the illegalities found by the Attorney General in his Sept. 23 opinion. Moreover, the fact (that) the changes would not become effective until March 1, 2015, belies the claim that (there) was an ‘emergency’ which necessitated less than full compliance with the APA.”

OGB did finally comply with the APA by conducting a public hearing on Dec. 29, 2014, in the middle of the Christmas and New Year’s holiday season and after the enrollment period had already been closed, causing the plaintiffs to call the hearing a “sham.”

“With all of the proposed changes, including significant changes (made) during the enrollment period, the haste in which they were handled, and the timing of the Dec. 29, 2014, public hearing, it was very difficult for state employees and retirees to intelligently evaluate their options under these proposed plans and (to) make informed choices,” the plaintiffs said.

The petition also claims the state violated due process and contract clauses.

It claims that state agencies can only change promulgated regulations by the process of the promulgation of a new rule or regulation and that if a change is not properly promulgated in accordance with the APA, “it is not a legally effective pronouncement by the agency (not a law), and therefore, none of the abortive attempts in August, September, October and thereafter should be viewed as having changed the existing law.

“Since the contracts clauses prohibit the state from passing a ‘law’ that retroactively impairs the obligations of contract, OGB can only legally change the benefits program when it adopts through proper procedure and final rule to that effect, and that final rule cannot constitutionally be given retroactive effect.”

The petition is seeking declaratory judgments that:

  • OGB’s health care plans are in violation of the Louisiana APA;
  • Defendants have violated the Constitution of the State of Louisiana;
  • OGB has violated its fiduciary duties as prudent administrators.

It also seeks injunctive relief enjoining the applications of the OGB health care plan modifications.

The lawsuit was assigned to 19th JDC Judge Janice Clark.

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Tomorrow’s selection of EBR Parish Attorney described as a public show but a private quid pro quo sham as ‘the fix is in’

Posted in Corruption, Ethics, Judges, Lawsuits, Public Records, Transparency on April 21, 2015| 6 Comments »

By Robert Burns (Special to LouisianaVoice)

Last May, a political firestorm surfaced on the EBR Parish Metro Council over then-Parish Attorney Mary Roper. Some council members asked Baton Rouge attorney Jack Whitehead to gather evidence. Later, in early September 2014, the Metro Council called a special meeting to discuss Ms. Roper’s termination. That meeting exposed what some leaders described as the complete dysfunction within the parish attorney’s office.

After the council’s special counsel, Murphy Foster, presented the case for Roper’s termination and Roper’s attorney, Wade Shows (Roper’s predecessor as Parish Attorney), presented her defense, EBRP Mayor Pro-Tem Chandler Loupe provided a laundry list of alleged wrongdoing by Roper. In the preceding video link, Loupe goes into great detail. A few of Loupe’s allegations against Roper include:

  • Often working no or very minimal hours even though she was paid as a full-time employee;
  • Failing to ensure that basic functions of the office were being performed, resulting in thousands of DWIs being dismissed and adjudicated properties experiencing a huge backlog;
  • Improperly providing an internally-developed software code to her husband, an information technology expert.

Another employee with the EBR Department of Public Works, Kyle Jones, subsequently attempted to sell the Parish its own software back to it for $500,000 which led to the discovery of Roper’s husband’s actions.

After Loupe made his presentation, a hostile and bitter exchange took place between Loupe and Councilwoman Chauna Banks-Daniel, with two of Banks-Daniel’s colleagues, Donna Collins-Lewis and C. Denise Marcell, becoming so furious with her over remarks she directed at Loupe that they exited the meeting. The council ultimately voted 8-3 to terminate Roper’s employment. Roper’s first lieutenant, Lee Anne Batson, assumed the position on an interim basis.

Several sources have expressed their concerns to LouisianaVoice that the selection process for the council naming Roper’s replacement is a sham. They claim the “fix has been in from day one” for Batson to obtain the position on a permanent basis. These sources have indicated that the process will become “Mary Roper, Chapter Two,” and they say morale within the parish attorney’s office is worse under Batson than it was under Roper. Further, these sources have said that the few dedicated attorneys serving in the office are frustrated that Batson has even worse supervisory skills than Roper and permits the majority of attorneys who work under her to “goof off most of the days on their iPHONEs and iPADs looking at new cooking recipes and other mindless activities.” These attorneys also have private practices and spend their time between “two masters,” thus placing the public in an inherent conflict.

It was that very office management style that permitted the huge backlog of DWIs to pile up which went unprosecuted and which had to be dismissed. Loupe, in the video clip, said one of the things that frustrated him most was for Shows, with whom he used to practice, to assert that no harm was done by Roper’s managerial style. Loupe countered that, beyond the stockpile of DWIs and adjudicated properties, in one instance which was particularly galling, the City of Baton Rouge was sued. The parish attorney’s office never provided a defense for the suit, refused a $20,000 settlement offer, and the result was a $550,000 judgment. Several attorneys said they felt that even a token defense would have resulted in the City not having been found liable. The attorney responsible for that case, Rick Nevels, recently retired.

Another indication of inadequate oversight occurred when Assistant Parish Attorney James Hilburn, failed to file an answer in Federal Court. Federal Court Judge Brian Jackson, who presided over the case, was livid at Hilburn’s failure and Hilburn was also reprimanded by the Louisiana State Supreme Court for filing a lawsuit for defamation against a party who had filed a complaint against him with the Office of Disciplinary Counsel.

The private-practice attorneys with whom LouisianaVoice has consulted for this article agree that, of the Parish Attorney’s $7.37 million budget, around $800,000 – $1 million of taxpayer funds could be saved simply by insisting that attorneys in the office perform their jobs. One source familiar with the Parish Attorney’s operations said, “The problem is most of them simply want free money with health insurance and a lucrative retirement as they engage in their private practice. They want the check, but they don’t want to work for it. Taxpayers have a right to expect that people are paid to perform a job and not to let things fall through the cracks while cookbook recipes are discussed all day.”

Loupe’s investigation revealed that one attorney was paid $89,000 for a year yet worked only eight files during that year. Another was found to be part-time yet paid $127,000 for working 23 active files. Additionally, Batson is permitting her sister-in-law, Gwen Brown to collect $85,000 as a full-time Assistant Parish Attorney while simultaneously earing $96,000 a year as a supervising attorney for another public agency, the Louisiana Appellate Project, which represents indigent criminal defendants who file appeals to the Louisiana Courts of Appeal and Louisiana Supreme Court. Roper never raised any concern because Roper, who supervised Brown, also earned $56,000 annually as a brief writer for the Louisiana Appellate Project. Similarly, Batson is not expected to interfere with her sister-in-law’s collecting $181,000 a year from the two positions, plus retirement benefits and health insurance. Moreover, all inquiries of whether these setups entail dual office holding have been summarily brushed aside.

It’s not as if these arrangements haven’t been reported. In this July, 2014 Advocate article, Assistant Parish Attorney Tedrick Kinghtshead is cited as maintaining a demanding criminal defense practice, while working full-time with the parish attorney’s office. These arrangements have raised the obvious question of potential conflicts of interest.

Each private-practice attorney consulted for this article said that maintaining an accurate tabulation of hours worked on a given client’s casefile is critical and that it would be unthinkable for any attorney to practice and not maintain such an accurate log. Nevertheless, there appears to be zero accounting for time on cases within the Parish Attorney’s Office. One private attorney described the present operations of the office as being nothing short of “irresponsible and a slap in the face to the taxpayers.” Another said that the parish attorney’s office should maintain a bank of briefs, but no such bank is maintained by the office.

Several sources have predicted that the process for choosing Roper’s successor is a mere formality and that Batson has the position locked up and that Batson has fired attorneys on her staff and replaced them with friends of members of the selection committee (the composition of which is outlined in these minutes of their April 6, 2015 meeting) who have indicated their quid pro quo support of Batson.

Roper and Hilburn, meanwhile, seemed to have landed on their feet. Both are now employed by Shows’ office. Shows serves as Attorney General Buddy Caldwell’s campaign treasurer for this fall’s AG race. Further, in a report by WWL in New Orleans, Shows was identified as a huge beneficiary of Caldwell’s propensity to award lucrative multi-million-dollar contracts to his close friends and associates. LouisianaVoice readers may also recall Shows Cali attorneys, including Shows himself, came within an inch of receiving sanctions in the Angola prisoner lawsuit for a “lack of candor” (a polite phrase for lying) to Federal Judge Brian Jackson.

The EBR Parish Council is set to discuss the status of the selection of Roper’s replacement at Wednesday’s (April 22) meeting; however, if LouisianaVoice sources are accurate, the two other finalists, Lon Norris and Michael Adams, are only in the mix for public consumption purposes. Further, the selection committee deemed “unqualified” two private-practice attorneys, Jack Whitehead and Jerry Pepper, who received the highest possible rating (AV) from Martindale-Hubble, an attorney peer review rating agency. Whitehead and Pepper’s piers have placed their legal ability in the top ½ of 1% of attorneys in the United States. The votes are reportedly in and accounted for to anoint Batson as the new Parish Attorney and thereby continue the time-honored style of “good ol’ boy” politics that got the office in the position in which it finds itself today.

 

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LA. Dental Board harasses otolaryngologist for practicing dentistry without license though he never touched a tooth

Posted in Audit Reports, Boards, Contract, Corruption, DHH, Ethics, Finances, House, Lawsuits, Legislature, LSU on April 16, 2015| 9 Comments »

Dr. Randall M. Wilk operates a medical practice in Gretna dedicated to the surgical treatment of diseases in the head and neck. http://www.drrandallwilk.com/#

Approximately 25 percent of his patients are cancer sufferers. Licensed to practice medicine in the state of Louisiana (License No. MD022962), Wilk earned his medical degree from the LSU School of Medicine in New Orleans. He did his general surgery training at the Ochsner Medical Institutions and did his head and neck surgery training in Portland, Oregon.

He also has a Ph.D. in anatomy from LSU and a DDS from the Baylor College of Dentistry and has a certificate in oral surgery.

But even though he does not operate a dental facility, that DDS degree has cost him more than $100,000 in legal fees because of the heavy-handed tactics of the Louisiana State Board of Dentistry which carried its badgering of Wilk all the way to the floors of the Louisiana House and Senate.

“Since graduating from dental school 25 years ago I have never filled a tooth, made a denture, made a crown, cleaned teeth, restored a tooth, or anything that one would consider a dental practice,” Wilk says, adding that he went “from graduating dental school in 1987 to starting graduate school” that same year.

Wilk noted that the dental board, in its 2009 financial statement, reported a loss to the Department of Health and Hospitals (DHH) of more than $60,000 and that the only plan put forth for managing that loss was “higher revenue from the collection of fines.”

Within weeks of that report, Wilk said, “I received a letter from the board sating that they had received a complaint on me from a Camp Morrison.”

Morrison, a private investigator, has worked for the board for numerous years under a series of contracts totaling more than $1 million. Moreover, even though he is an independent contractor, he is given free office space in the board’s suite at the high-rent One Canal Place office building in New Orleans.

Dating back to 1997, Morrison was issued nine consecutive contracts totaling more than $1.8 million. Most of his contracts were for two-year durations. His first, from March 1, 1997 to Feb. 28, 2000, was for $45,000. But from Sept. 1, 2000, through Aug. 31, 2002, his contract more than trebled, to $150,000 and increased again to $200,000 with his next contract which ran from Sept. 1, 2002 through Aug. 31, 2004.

Beginning on Sept. 1, 2004, he was awarded four consecutive two-year contracts of $240,000 each. Those four contracts combined to run through Aug. 31, 2012.

For whatever reason, on Sept. 1, 2012, the board cut his contract back to nine months and $110,000 but when that pact expired on June 30, 2013, he was issued a new contract, this one for three years, from July 1, 2013 through June 30, 2016, for $340,000.

Wilk said he was told that Morrison had reported to the board “that they had no record of me having an anesthesia permit from the dental board in 2007, that they had no record of me having a certificate in oral surgery, and that I was suspended from the Medicaid and Medicare programs.

“All of those are false statements,” he said, but the board refused to produce a copy of Morrison’s report. “I believe that filing a false report is a crime.”

Wilk said a meeting was scheduled and at that meeting two board members said they wanted him to sign a consent decree and to pay the board $5,000.

When Wilk said he had no intention of signing anything without first having his attorney examine the document, they left the room for a short time and returned with an adding machine “and told me that if I did not sign the document right then and there, that they could levy fines of over $100,000.”

He said the two handed him the adding machine tape “and placed the consent decree in front of me. For those familiar with the Godfather movies, the only thing missing was Luca Brassi with a pistol to my head.” He said a board member said it appeared that he (Wilk) felt his medical degree was more important than his dental degree.

“This was a pure and simple shakedown,” Wilk said.

He said it’s not unusual for medical specialists to obtain a dental degree prior to going to medical school and residency. “In the state of Louisiana, dozens of doctors are in this position. At least half-a-dozen are otolaryngologists, several are plastic surgeons, general surgeons, head and neck surgeons, orthopedic surgeons, gastroenterologists, anesthesiologists, even psychiatrists.

“Having a dental degree does not make your medical practice a dental practice,” he said.

Apparently the dental board and its investigator, Camp Morrison, disagree. Here are minutes of a 2011 dental board meeting at which Wilk’s case is discussed. DENTAL BOARD MINUTES MAY 20, 2011 (bottom of page 14)

Moreover, the DENTAL BOARD BULLETIN also mentions disciplinary action against Wilk (Item no. 14 in the left column near the bottom of page 3).

Wilk obtained legal counsel but the barrage from the dental board continued “for almost two years,” he said. “They subpoenaed me five times, requested copies of my patient records for several years and required my staff to go over 12,000 records. The final documents sent to them weighed several hundred pounds.

“Despite my being represented by counsel, Mr. Morrison continued to serve me subpoenas, to appear in my office waiting room, the operating room at Ochsner Hospital and at my home,” all the while passing out his cards to people and saying he was the investigator for the board of dentistry.”

Eventually, the board relented somewhat by notifying Wilk’s attorneys that if he paid the board $10,000 the matter would “go away.” Wilk said he feels that such tactics are tantamount to corruption or shakedowns. Again, he refused to pay.

Louisiana Revised Statute 37:793 (H) (2) says:

  • A personal permit is not required when the dentist uses the services of (1) a trained medical doctor, (2) doctor of osteopathy trained in conscious sedation with parenteral drugs, (3) certified registered nurse anesthetist, (4) a dentist who has successfully completed a program consistent with Part II of the American Dental Association Guidelines on Teaching the Comprehensive Control of Pain and Anxiety in Dentistry, or (5) a qualified oral and maxillofacial surgeon provided that the doctor or certified registered nurse anesthetist remains on the premises of the dental facility until any patient given parenteral drugs is sufficiently recovered.

When Wilk’s pointed out that the statute “specifically exempts me from what they are fining me for, their lawyer stated that he will have to ‘get that law changed.’” Wilk said. He said the board, which in 2010 reported an operating loss of $104,000, “held its own trial and fined me and held me for the board’s legal costs, totaling about $100,000.” They are their own judge, jury, and executioners,” he said. DENTISTRY BOARD 2009 FINANCIAL STATEMENT

The board subsequently prevailed on then-State Rep. Herbert Dixon to introduce legislation giving the dental board the necessary leverage to pursue claims against medical practitioners like Wilk who were not practicing dentists.

Wilk was scheduled to testify in committee against Dixon’s bill, HB 172, at 10 a.m. on May 15, 2012 but upon arriving, learned that the bill had been moved up to first on the calendar and had already been discussed and passed by the committee. It subsequently passed unanimously in both the House and Senate, yet more evidence that legislators often pass bills without really knowing what they contain or the implications of the language.

Wilk said that State Sen. David Heitmeier (D-New Orleans) had a discussion with Peyton Burkhalter, who had by then succeeded Barry Ogden as executive director of the board, and that Burkhalter had assured Heitmeier that the board had decided to drop the charges against Wilk. “He said that Mr. Morrison’s Gestapo tactics would end,” Wilk said.

State Sen. Fred Mills (R-Breaux Bridge) told LouisianaVoice on Thursday that he and former House Speaker Jim Tucker (R-Terrytown) had experienced clashes with the board in the past. “They’ve got some problems with that board,” he said, “and I believe the answer in the end will be the establishment of oversight over them,” he said. “We’ve had to threaten them with legislative action, including replacing the entire board, in order to back them down in the past.”

Wilk said he feels there is outright corruption on the board and that its shakedowns of dentists and non-dentists alike constitutes extortion. “Knowing that no violation of any statute occurred but demanding payment under threat of costly litigation is unethical conduct,” he said.

“I believe that their changing the law was intended to persecute me but also puts many other practitioners at risk. The implications…are far-reaching and as such constitute a restraint of trade. The precedent set by this bill (HB 172) (allows) other boards to reach beyond their jurisdiction. This law does nothing to protect the public,” he said.

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