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Archive for the ‘Privatization’ Category

A three-judge panel of the First Circuit Court of Appeal in Baton Rouge has scheduled arguments for Tuesday in the state’s appeal of a DECISION by a 19th Judicial District Court judge last March that knocked down much of the Jindal administration’s arbitrary rule changes in the approval of medical treatment for state employees injured on the job.

The decision was another in a long line of “reform” movements by Jindal—and pushed by the American Legislative Exchange Council (ALEC)—that were subsequently found to be unconstitutional or simply fell apart. Some of those included public education funding, group medical coverage for state employees, public-private partnerships in the operation of state hospitals, prison privatizations and tax proposals.

In his March 30 seven-page REASONS for JUDGMENT that followed a Feb. 7 bench trial, District Judge Don Johnson noted that:

Because the legislature did not authorize OWC to create a new rule creating a “tacit denial” when the provider simply ignores a request for treatment, “the Office of Workers Compensation exceeded its legislative authority as (it) lacks the authority to create and implement procedural regulations that authorize the ‘tacit denial of requested medical treatment which is statutorily obligated to the injured worker by the employer pursuant to (state statute).”

Johnson also found that OWC promulgated rules requiring injured workers to meet a higher burden than the state statute for any variance in an injured worker’s treatment schedule are “vague and the regulations are arbitrary, denying injured workers’ medical treatment that Louisiana employers are statutorily obligated to provide…”

Johnson also found that the “scheme” for determining whether an injured worker can receive medical treatment outside the Louisiana medical treatment guidelines (MTG) “is unduly burdensome.”

Special Assistant to the Director Carey Holliday testified that he was hired to help “bring the judges into conformity,” according to the answer to the state’s appeal filed by attorney J. Arthur Smith III on behalf of several plaintiffs. Holiday did that by implementing judicial performance evaluations. While he acknowledged he could not tell judges how to rule, he could “put them together and let them talk” and that “there will be some conformity…to come out of that,” Smith said in his answer.

The most damning revelation to come out of last February’s trial was testimony of improper Ex Parte communication between insurance carriers and defense attorneys about the merits of injury claims pending before OWC judges. Those communications were usually in the form of emails.

For example, one such email from a workers’ compensation defense attorney to former OWC Director Wes Hataway, Holliday, and the OWC chief judge contained complaints that one judge had ruled against an employer. The email went on to say of the judge, “He should be fired immediately,” and implied that the judge’s skills were less than those of a first-year law student. “He will do as he pleases no matter what,” the email said. “If this isn’t grounds to fire a judge, I don’t know what is.” The defense attorney ended his email by saying, “I think it’s time for the W.C. judges to become accountable for their actions.”

Judge Johnson took a dim view of this disregard for judicial independence by the 2011 decision to remove of the decision-making authority of the OWC judges and place it in the hands of the OWC Medical Director, Dr. Christopher Rich.

Johnson ruled that OWC “has violated the separation of powers doctrine by compromising judicial independence” by giving unpreceded powers to Dr. Rich, who was awarded a $500,000 contract to serve as medical director.

Rich, if nothing else, is consistent. Previously involved in ethical problems with another state contract, LouisianaVoice wrote about an apparent conflict of interest. In March 2011, the State Ethics Board ruled that he was prohibited, in his capacity as Medical director of OWC from participating in any matter involving Central Louisiana Surgical Hospital, a facility in which he owned an interest and which provided medical treatment to injured workers.

As OWC Medical Director, he could deny coverage to a state employee and then refer the employee to Central Louisiana Surgical Hospital for private treatment.

And did he ever deny coverage to state employees once ensconced as medical director. He even testified in February that he ignored the clinical judgment of treating physicians, even specialists, giving no weight to the recommendations of treating physicians. Moreover, according to his own testimony, he never examined an injured worker even though he made the final decision on what, if any, medical treatment the employee would receive. He even overruled a neurosurgeon’s recommendation that an employee undergo a cervical fusion because he, Rich, did not deem it necessary.

Attorney Janice Valois Barber testified in February that Rich had denied 100 percent of her clients’ requests for medical treatment variances. Dr. John Logan also testified by deposition that 100 percent of his variances likewise had been denied by Dr. Rich. Dr. Logan said that many of his patients simply gave up, knowing they would never get approval for the medical treatment they needed.

Dr. Pierce Nunley testified that he performs spinal surgery on almost a daily basis. He said he has attempted to contact Dr. Rich regarding Rich’s repeated refusals of request for treatments that vary from the MTG but was never able to get through to Rich nor did Rich return his calls.

So now, the state is continuing to pour good money after bad by appealing the decision of the lower court in an effort to uphold what was—and is—a very bad policy in dealing with people’s lives.

To us, it doesn’t seem quite right that one man, who never even once examined a patient would deny 100 percent of all requests for variances in the normal medical treatment guidelines. Surely there were a couple of valid claims in all of that.

But by consistently rejecting each and every claim, Dr. Rich was enforcing the Bobby Jindal code of justice and fair play.

It might be fine for Jindal to sell his books to his foundation in order to divert money from his non-profit into his pockets but no injured worker had a right to receive treatment for his injuries.

It might be fine for a legislator to lease luxury automobiles, pay ethics fines or even income taxes from campaign funds or for legislators to place relatives in state employment, but we just can’t have judges giving these deadbeat state employees a decent break.

And why not? The money-sucking appeals aren’t costing elected officials and bureaucrats anything. The tab is being picked by those clueless taxpayers. And besides, the state has plenty money.

The three-judge panel hearing the case includes appeal court judges John Michael Guidry, John T. Pettigrew and William J. Crain.

 

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It’s funny how a change in bosses can bring about an almost seamless change in philosophy on the part of subordinates who harbor a desire to keep their jobs.

Take Jimmy LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections, said in May of this year that he didn’t believe it would be worth it in terms of any cost savings to privatize five state PRISONS.

Yet, only five years earlier, on May 8, 2012, LeBlanc was quoted in New Orleans’ GAMBIT magazine as saying he hoped the $8 million per year in savings from the privatization of just a single state prison—Avoyelles Correctional Center (AVC) in Cottonport—could be reinvested into rehabilitative programs. He even said AVC was an ideal candidate for the plan because it was similar to the privately-run facilities in Winn and Allen parishes.

What’s the reason behind LeBlanc’s position change?

Well, for openers, in 2012, he was serving as head of corrections as an appointee of then-Republican Gov. Bobby Jindal. Today, he is serving in the administration of Democratic Gov. John Bel Edwards, who reappointed him in January 2016.

The contrasting positions appear to be classic examples of political hacks swaying with the prevailing winds. Jindal wanted to privatize prisons so he could get an infusion of quick cash to smooth over annual gaping holes in his budget. Edwards, not so much. In fact, Edwards is downright opposed to the idea of privatization, leaning instead toward reducing the state’s prison population by freeing non-violent offenders. Jindal preferred keeping the prison beds full in order to keep a continuous flow of cash to private prison operators who are paid on the basis of head counts.

But the contrast doesn’t end there.

As pointed out in the 2012 Gambit article, LeBlanc said AVC was an ideal candidate for privatization because it was so similar to those private facilities in Winn and Allen. At that time, they had been downgraded to “jail” status, thereby allowing state officials to eliminate education and rehabilitation programs.

Well, guess what?

Last May, LeBlanc was singing a different tune about the attributes of those facilities, saying that he was in favor of restoring the Winn and Allen facilities to “prison” status, a move that would necessarily bring the state back into the picture. Apparently, what was “ideal” under the Jindal administration didn’t quite measure up under Edwards. But LeBlanc is nothing if not flexible.

It’s probably that flexibility that has allowed LeBlanc and others in the Department of Public Safety to survive when appointees in other agencies were shown the door with the ushering in of a new administration.

Survival. It’s a great motivator.

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Oral arguments are scheduled to be heard on Nov. 7 in the First Circuit Court of Appeal in Baton Rouge on a three-year-old matter that a layman unfamiliar with the way in which judges can manipulate and interpret laws to keep the meter running would think should have been settled two years ago.

But settling cases quickly and decisively is not the way the courts work and because of that, the case involving the unconstitutional closure of Huey P. Long Medical Center (HPLMC) in Pineville in 2014 rocks on, continuing to rack up fees for contract attorneys for the state—all paid for thanks to the generosity of Louisiana taxpayers.

Meanwhile, the fate of some 570 employees has been held in abeyance since the hospital’s closure on June 30, 2014.

And the manner in which its closure was approved prompted the lawsuit by plaintiffs Edwin Ray Parker, Kenneth Brad Ott and the American Federation of State, County, and Municipal Employees (AFSCME).

Here’s the way it all went down:

At 4:07 p.m. on April 1, 2014, a notice of the April 2 meeting at 9 a.m. of the Senate Health and Welfare Committee to consider Senate Concurrent Resolution (SCR) 48 which “Provides for legislative approval of and support to the Board of Supervisors of Louisiana State University for the strategic collaboration with the state in creating a new model of health care delivery in the Alexandria and Pineville areas.”

A “new model of health care delivery” was a clever way of wording the SCR so as not to tip the hand of the Jindal administration’s intent to shutter the doors of HPLMC. Who could possibly be expected to discern from that goony-babble that in less than 24 hours, the decision would become final to close the facility?

There were only two key things wrong, either of which should have been sufficient grounds to stop closure of HPLMC.

First, the Senate’s own rules promulgated in accordance with the Louisiana Open Meetings Law LA 42:19(B), which says that notice of all such meetings must be posted no later than 1:00 p.m. the day prior to the meeting and if notice is posted after 1:00 p.m., the agenda item may not be heard the next day. (emphasis added)

Second, in a 1986 case, the U.S. Supreme Court held that:

A concurrent resolution…makes no binding policy; it is ‘a means of expressing fact, principles, opinions, and purposes of the two House (House of Representatives and Senate).” (emphasis added)

Attorney J. Arthur Smith, III of Baton Rouge argues that Article III, Paragraph 14 of the Louisiana Constitution provides that the style of a law “shall be ‘…enacted by the Legislature of Louisiana’” and Paragraph 15(A) which says rather bluntly, “The legislature shall enact no law except by a bill introduced during that session…” (emphasis added)

Smith said, “The Legislature cannot amend Louisiana statutes by resolution” because an enacting clause “distinguishes legislative action as law rather than a mere resolution” as held in First National Bank of Commerce, New Orleans v. J.R. Eaves in that “failure to include a significant portion of the enacting clause renders the law unconstitutional.”

To put all that in plain English, Smith is simply pointing out case precedents which hold that a concurrent resolution is not the same as a legislative bill and therefore, is not binding.

That’s pretty straightforward and something that a first-year law student should be able to comprehend.

Yet, when the state appealed the ruling of State Judge Pro-Tem Robert Downing of June 23, 2014, which granted plaintiff’s request for a preliminary injunction because the Senate committee violated the Open Meetings Law and provisions of Article III of the Louisiana Constitution, the First Circuit managed somehow to overlook the violations.

Instead, it ruled the state’s appeal as moot since HPLMC closed on June 30, 2014, seven days after Downing’s ruling and the First Circuit did so without even bothering to address the issues on which Downing’s ruling was based.

Moreover, the state appealed directly to the Louisiana Supreme Court on the basis of the declaration of the unconstitutionality of SCR 48. On Jan. 13, 2017, the Supreme Court denied the state’s appeal as moot but on Feb. 24 of this year, granted a rehearing to the First Circuit.

So now, a three-judge panel comprised of Judge John Michael Guidry, Judge John T. Pettigrew and Judge William J. Crain will hear arguments on the constitutionality of SCR 48 and of violations of the Open Meetings Law.

Interestingly, the state argues that notices to the public “need not contain anything other than a bill number” and that the Senate “has no obligation to inform the public of the nature or substance of the legislative proposals it will be considering.”

Now that’s a damned interesting concept. Who knew we, the public, had no right to be informed of what our elected representatives are up to? Who knew the people we elect and send to Baton Rouge have “no obligation” to let us know what they’re cooking up in the House that Huey built? Who knew the Bobby Jindal administration could push a concurrent resolution through the Senate and call it a law? Who knew such upright public servants as Jindal and members of the Senate committee would flim-flam us?

Louisiana R.S. 42:24 authorizes the courts to void “any action taken in violation” provided a lawsuit to void any action “must be commenced within 60 days of the action.”

The Baton Rouge firm of Taylor, Porter, Brooks & Phillips is representing the State in the HPLMC litigation.

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It’s a plaintiff attorney’s and a legislator’s nightmare.

As an illustration of just how bad the state’s fiscal condition really is, one need only examine the 40 court judgments stemming from litigation against the state in 2016 that have yet to be paid.

As former Speaker of the U.S. House Tip O’Neill once said, all politics is local and when a constituent wins or settles a lawsuit against the state, that person’s legislator is usually prompt in filing a bill in the House to appropriate funds for pay the judgment. That’s important to legislators. The state, after all, has denied classified employees pay raises for the better part of a decade but never missed paying a judgment other than the Jean Boudreaux case—until now.

It’s also a good indication of just how dire the state’s fiscal condition really is.

In all judgments of road hazard cases—cases involving auto accidents where the state is found at fault for inadequate signage, poor road maintenance or improper construction—as well as certain other claims like general liability or medical malpractice, funds must be appropriated via a bill submitted by a legislator.

In past years, with the exception of one major judgment, that has not been a problem. Only the $91.8 million class action judgment resulting from the 1983 flood in Tangipahoa Parish was never paid. In that case, lead plaintiff Jean Boudreaux claimed that construction of Interstate 12 impeded the natural flow of the Tangipahoa River, causing unnecessary flooding of homes and businesses north of I-12.

But in 2016, Rep. Steve Pugh of Ponchatoula submitted a bill to appropriate funds to pay the judgment. He did the same in 2017. It still remains unpaid, along with 36 other judgments totaling another $9.5 million for which bills were approved.

That puts the overall total judgments, including the 34-year-old Boudreaux case at more than $101 million.

And that doesn’t count the cost of attorney fees, expert fees, or court reporter fees, amounts practically impossible to calculate without reviewing the complete payment files on a case-by-case basis.

Twenty-four of the cases had two or more plaintiffs who were awarded money.

In 19 cases, awards were for $100,000 or more and three of those were for more than a million dollars—if indeed the money is ever paid.

In the meantime, judicial interest is still running on some of those judgments, which could run the tab even higher.

A list of those who were either awarded or settled cases in excess of $100,000 that remain unpaid and their parishes include:

  • Michael and Mary Aleshire, Calcasieu Parish: $104,380.82;
  • Kayla Schexnayder and Emily Legarde, Assumption Parish: $1,068,004;
  • Debra Stutes, Calcasieu Parish: $850,000;
  • Peter Mueller, Orleans Parish: $245,000;
  • Steve Brengettsy and Elro McQuarter, West Feliciana: $205,000;
  • Jeffrey and Lillie Christopher, Iberville Parish: $175,000;
  • Donald Ragusa and Tina Cristina, East Baton Rouge: $175,000;
  • Stephanie Landry and Tommie Varnado, Orleans Parish: $135,000;
  • Jennie Lynn Badeaux Russ, Lafourche Parish: $1.5 million;
  • Adermon and Gloria Rideaux and Brian Brooks, Calcasieu Parish: $1.375 million;
  • Theresa Melancon and DHH Medicaid Program, Rapides Parish: $750,000;
  • Rebecca, Kevin and Cheryl Cole and Travelers Insurance, East Baton Rouge: $400,000;
  • Samuel and Susan Weaver, Lafourche Parish: $240,000;
  • Henry Clark, Denise Ramsey and Lady of Lourdes Medical Center, Lafayette Parish: $326,000;
  • Anya and Abigail Falcon and Landon and Nikki Hanchett, Iberville Parish, $946,732.53;
  • Adam Moore and James Herrington, East Carroll Parish: $150,000;
  • Traci Newsom, Gerald Blow, DHH Medicaid and Ameril-Health Caritas, Tangipahoa Parish: $150,000;
  • Michael Villavaso, Orleans Parish: $443,352.51.

Lawsuits against all state agencies are handled by the Office of Risk Management (ORM), which Bobby Jindal privatized in 2011 in order to save the state money.

The privatization didn’t realize the savings Jindal had anticipated but now, at least, it looks as though the Division of Administration has found another way to save money on litigation costs:

Don’t pay the judgments.

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It’s been more than 16 months and still there is no word as to the disposition of a Union Parish case involving a prisoner already awaiting sentencing for aggravated rape who, inexplicably, was not only allowed out of his cell, but also given admittance into an isolation cell where he raped a 17-year-old girl not once, but twice.

The Ruston Daily Leader first reported the story on May 3, 2016, but the rape had occurred earlier, on April 19. LouisianaVoice posted its first story on May 10. (See that story HERE.)

Demarcus Shavez Peyton of Homer, then 28, was being held in the Union Parish Detention Center pending his sentencing in Claiborne Parish after his conviction there of aggravated rape. Union Parish officials were informed by the Claiborne Parish Sheriff’s Office that Peyton was known as a serial rapist and that he had already been convicted of aggravated rape. He has since been sentenced to live imprisonment for the Claiborne Parish rape.

The Union Parish Detention Center is a public-run facility overseen by an operation committee comprised of District Attorney John Belton, Union Parish Sheriff Dusty Gates, the Union Parish Police Jury and the Farmerville Police Chief. Because no one individual has authority over the way in which the detention center is run, Gates was unable to adequately see to it that the girl, who had been placed in an isolation cell because she was under the influence of meth, was protected from Peyton.

Gates told LouisianaVoice on Wednesday (Aug. 30) that it was his understanding that the guard on duty that night has been disciplined. “The guard wasn’t paying attention,” Gates said. “When the call button was pushed, he just opened the cell without paying attention.”

The operational structure of the detention center and Gates’s explanation also brought into sharp focus the problems inherent with private prisons which are little more than money trees for the local sheriffs or private operators who run them. LouisianaVoice addressed that problem in a follow-up post on May 31 (click HERE).

In that story, three questions were posed:

  • How was it that the girl was being held in proximity to a convicted aggravated rapist?
  • Who (and this is the most important question of all) was the Union Parish Detention Center staff member who allowed Peyton out of his cell and into the girl’s?
  • Who is responsible for operations of the detention center?

The third question has already been answered. We’re still awaiting answers to the first two as well as a few other questions we put to the Attorney General’s Office in the form of a formal public records request because the AG was asked (rightly) by Belton to take over investigation of the matter in consideration of the DA’s involvement in running the prison (in itself, a curious arrangement):

  • Where does the attorney general’s investigation stand at this point?
  • Has a trial of Demarcus Peyton been scheduled for this alleged rape? If so, what is the scheduled date of that trial?
  • What disciplinary action was—or is anticipated to be—taken against the guard?
  • For Demarcus Peyton to have committed this act, two cell doors would have had to have been opened: his and the cell to the victim. Why was Demarcus Peyton allowed to leave his cell and even more egregious, why was he admitted to the victim’s cell when he was already awaiting sentencing for aggravated rape?
  • Are any measures being recommended by the attorney general’s office relative to the future operation of the Union Parish Detention Center?

Our questions were forwarded to the Attorney General’s Office at 10:09 a.m. Wednesday. At 11:25 a.m., we got out answer from Press Secretary Ruth Wisher: “This matter is under investigation; therefore, I cannot comment on the specifics or answer questions at this time.”

Sixteen months and it’s still “under investigation.”

How long does it take to investigate a rape in a confined area like a jail cell?

Another seemingly unrelated but nonetheless important question that we could be justified in asking is: To what end are sheriffs seeking bigger detention centers to house more prisoners? The answer to that, of course, is power, purely and simply. If the sheriff can build detention centers to house more prisoners, it brings in additional state money (the state pays about $26 per day per prisoner housed). With that extra income, the sheriff can shore up his power with bigger and more impressive weaponry arsenals.

That theory was underscored just this week when President Trump announced plans to remove the restrictions on military gear for local police departments (click HERE). That announcement must have local sheriffs and police chiefs salivating over the prospects of having a Humvee or a mine resistant ambush protected vehicle.

There will be those who will be just itching for the slightest provocation so they can roll out their military weapons to put down the insurrection and to haul anyone who might object off to their locally-run jails so they can keep the beds full and the payments rolling in from the state. It’s a self-perpetuating ATM.

Meanwhile, someone forgot to check the cell door, leaving a teenage girl vulnerable.

And now, 16 months after the fact, it’s still “under investigation.”

Perhaps Attorney General Jeff Landry has more important matters on his plate than bringing such a trivial matter as a sexual assault on a teenage girl to a close after more than 16 months. After all, she was on meth and in jail.

And we have to protect decent, upstanding citizens first, right?

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